Jury Awards $1.5 M in Pain Case ...excessive?

Nurses Activism


When I come across precedent setting Health Care ethics cases, I thought I would share this here:

Jury Awards $1.5 M in Pain Case

BERKELEY, Calif. (AP) — A jury awarded $1.5 million to the family of an 85-year-old man who accused his doctor of not prescribing enough pain medication during his final days. The verdict could be a turning point in the way physicians treat pain, medical ethicists said.

"Any thought that people will not be able to prove lawsuits based on undertreatment of pain is misplaced. It's a false comfort," said Sandra Johnson, an attorney, law professor and provost of Saint Louis University. She is chairwoman of the center for Health Care Law and Ethics.

"These lawsuits can succeed. It's not a flash in the pan; It's something I expect to see much more frequently, where the only loss to the patient is pain and suffering," Johnson said.

She said she knew of only one similar case, a $15 million judgment against a nursing home in North Carolina found to be negligent for not giving enough pain medication to a man dying of cancer.

A California bioethicist says the award marks a turning point.

"This case is the case that now says juries are prepared to hold physicians and acute care hospitals accountable for failure to properly manage pain," said Ben Rich, a University of California, Davis professor of bioethics.

The Alameda County jury ruled Wednesday that Dr. Wing Chin did not do enough to alleviate the pain of lung cancer patient William Bergman, a retired railroad worker who died in 1998.

California law sets a cap of $250,000 on such judgments, meaning the award likely will be reduced.

"It's not really the money we were after," said his daughter, Beverly Bergman. "We were after trying to get things changed and not having to have anybody go through what my father did again."

The Bergmans sued under California's elder abuse statute. Barbara Coombs Lee, president of Compassion in Dying, an advocacy group that helped bring the lawsuit, said it was believed to be the first successful case charging a doctor with failing to administer sufficient pain medication under that law.

Steve Heilig, a bioethicist and director of public health and education for the San Francisco Medical Society, said the verdict sets "an interesting precedent in that, historically, the medical boards, including in California, have pursued (penalties for) overmedication of pain. In this case, they're reversing the standard, as it were, to undermedication.

"My personal perspective is that there's merit in that," Heilig said. "Undermedication of pain is a big problem."

Jurors found elder abuse and recklessness in the case. However, they deadlocked on questions of whether Chin had acted with malice or had intentionally caused emotional distress. As a result, no punitive damages were considered.

Chin declined comment after the verdict. His attorney, Bob Slattery, said the award may be appealed.

During the trial, the defense said it was not clear Bergman had cancer. Defense lawyers said Chin did not prescribe morphine for pain because Bergman had an adverse reaction to the drug when he first was taken to the hospital emergency room.

Kathryn Tucker, lawyer for the Bergmans, said Bergman had a tumor in his lung and abundant cancer symptoms. She said the family didn't want a biopsy performed because they thought Bergman was too frail for invasive surgery.

A spokeswoman for Eden Medical Center, the hospital where Chin has had medical privileges for more than 30 years, said the verdict was "surprising to the people who know him. Dr. Chin has devoted his entire career to caring for patients and most of them are seniors and therefore it's difficult for those who know and work with him to accept the verdict."

Bergman's family filed a complaint with the California Medical Board, but the board took no action, saying it did not find convincing evidence of a violation of the medical practice act.

Source: http://www.courttv.com/trials/news/0601/15_pain_ap.html

Now being this has been a Hot button Topic in Florida legislature, capping the costs and recovery from Nursing Home Lawsuits and Lawyers, which I am split on, this seems pinnacle. We have a situation where residents who in fact do suffer extreme abuse and neglect, due to poor quality care and poor staffing, at the same time the "Lawsuit Industry" provides a viable alternative it also is forcing closures and bankruptcies. In the end one big law firm and one family may find justice but what of the others? The Trial Lawyers needed to be capped, but in Florida they were debating of the right to sue in addition.I don't believe in taking away the right of the patient or family to sue, but at the same time there must be some limit. I do not see how this type of litigation benefits the masses...


[ June 17, 2001: Message edited by: Chellyse66 ]


15 Posts

We have been instructed to evaluate the patients complaint of pain as the fifth vital sign and to document it along with the vital signs. This sounds reasonable...right???

Recently, I had a patient who had been out of drug rehab for 3 weeks and was in our acute hospital for an arm abscess caused by him grinding up Vicodin and injecting it into his veins.

We were medicating him with 50 mg Demerol IVP q 3 hrs around the clock...(the order read 25-100 mg q3 hr) One new nurse, decided he needed 100 mg and from then on, he demanded the 100 mg dose...After 4 days, he was discharged & went home on PLAIN Tylenol.

About 2 weeks later I saw him visiting his dad who had a CVA. I asked him about his arm...He aid it was much better and then he bragged to me about how easy it was to "stay high" when hospitalized, and how he could con the nurses into giving him the bigger dose by faking his pain...

Wondering now what to do in the future if a patient is exibiting "drug seeking behaviors" and merely wants the insurance company to pay for his "legal high"?

Pam Johnson

14 Posts

Admittedly, there are shortcomings in pain management, but with the current advancements with pain control, the majority of people receive adequate mgt. I definitely see the importance of having caps on litigation settlements, but more importantly the attorneys should not be rewarded so generously. there have been many class action suits in which the numerous victims receive only a miniscule settlement. Granted that many of these are on contingency, so win or lose the law firms take a risk.

Remember the good old days when physicians would stingely dispense pain meds, & often times you would see the treminally ill sufferring in uncontolled pain. As we may recall both nurses & doctors were afraid of overdosing them.



6,620 Posts

Pain is my hotbutton topic. I have seen patients in horrible pain because of the fear of addiction or the judgement of healthcare professionals that they are drug seekers. I say who cares if a terminally ill patient is a drug seeker or addicted anyways? We have WAY too many biases about pain and what people in pain are supposed to act like. I would rather overmedicate a few drug seekers than leave people in true physical pain in agony. I think pain management is one of the worst areas in health care, in my experience.

I say if the drugs are ordered and the patient says they are in pain, I take their word for it. Unfortunately, I don't think docs or nurses will get more conscientious about treating pain until they get sued. Or until one of their friends or family members dies in agony.


629 Posts

I'll gladly "addict" a terminal patient if it makes their last days comfortable.

$1.5 million is an INSULT! Doesn't even begin to make up for the suffering this poor person and their family has been forced to endure.


Nurse Ratched, RN

2,149 Posts

Specializes in Geriatrics/Oncology/Psych/College Health.

The flip side of the coin (and not necessarily relevant to a case where the pt is terminal) is the popular pasttime of suing the makers/prescribers of oxycontin for "making people addicted." Check out google.com with the kewords - oxycontin addiction lawsuit - to see how ambulance chasers are making doctors afraid of prescribing it.

manna, BSN, RN

2,038 Posts

It's not really the money we're after, but we're sure not complaining about a 1.5 mil settlement. Sure, I hope the doctors "learned their lesson," but the truth of the matter is that they probably won't. I do think it's excessive - nothing will bring this man back or ease any pain that he or his family suffered as a result. So let's sit back and award huge settlements and watch plaintiff's lawyer's get rich.... that really helps the system. I am 100% FOR tort reform. :rolleyes:


6,620 Posts

But what WILL get them to take pain seriously???? These doctors did not treat their patient, and that's malpractice of the worst kind where I sit. There is no excuse for it, and I do think they'll think twice before they sit idly by and let another person die like that.

It probably wouldn't seem excessive if it was your husband or child that had to die in horrible agony.

manna, BSN, RN

2,038 Posts

But what WILL get them to take pain seriously???? These doctors did not treat their patient, and that's malpractice of the worst kind where I sit. There is no excuse for it, and I do think they'll think twice before they sit idly by and let another person die like that.

It probably wouldn't seem excessive if it was your husband or child that had to die in horrible agony.

I don't know what the answer is, but I don't think that lawsuits with huge settlements are the answer. True malpractice is a HORRID crime, but as I mentioned - no amount of money is going to ease the pain in that family's heart. If the justice system truly wanted to make a difference, why not try to break through the Boys' Club of physician and censure those who act unappropriately more harshly in ways other than monetary fines and court judgements.

I can't say what I would do in this family's situation, but I will say that when my oldest son (who is now 5) was 2 years old he was mauled by a dog at his babysitter's home. He was in horrible pain and still has scars on his face to this day. His sitter refused to pay his medical bills, and I could have taken her to court and probably won a settlement (albeit relatively small), but I chose not to. Why? Because I don't believe in using money as a band-aid for emotional pain.


6,620 Posts

I don't believe it's an emotional bandage either. But I do think it's the only course available to that family to hold the doctors accountable. What else can they do? Complain to their supervisors? Complain to the medical board? Maybe the doctors would get a letter saying they need to be more "sensitive" to their patients :rolleyes: It has been my experience that people who sue are doing it because they are angry and if hospital administration responds in an appropriate way, the lawsuits often go away. Unfortunately instead of admitting the problem, most places just clam up and try to protect their own. I have seen a family yelling about their child's treatment (and justifiably so) become calm after the doctor apologized to them. They didn't sue. They felt acknowledged and they believed the doctor when he said he was sorry.

Unfortunately the only thing most doctors and hospital administration understand is money. I have seen changes implemented after a lawsuit, and nothing else got those results despite the efforts of staff.

manna, BSN, RN

2,038 Posts

I suppose until the system reinvents itself and there is a better answer to family/patient complaints, the lawsuits will continue. I do agree that some - many - are justified, but for every lawsuit that is justified there are probably many more lawsuits that are filed in pursuit of vengeance.

My experience with this is not yet in the medical field (although I have been related a few stories by my brother who is a physician), but through the company I work for. We manufacture heavy equipment such as cranes, fork lifts, and container handlers. There are numerous accidents involving this equipment each year - they are large machines, and dangerous to operate and be around if you are not fully on guard, but they are equipped with as much safety equipment as possible. Of course, whenever there is an accident, even if the operator or person injured is at fault, our company is sued. It is a relatively small, family-owned company, and the last major US-based heavy forklift manufacturer left. However, if the litigousness of society continues to increase, this company will probably be driven out of business by frivolous lawsuits. So maybe that has something to do with why personal injury lawsuits as a whole are a sensitive subject in my book.


6,620 Posts

I am certainly not in favor of frivolous lawsuits. There is a need for reform. I don't think people should be able to sue for every stupid little thing in life.

I just don't confuse that issue with justified lawsuits. This is no different here than not treating a broken leg or an MI. When a patient comes to the hospital they have the right to be treated, ESPECIALLY when it comes to end of life care. I can't think of anything worse than forcing someone to spend their last moments on earth in horrible pain. It is hard enough to watch a loved one die, but to be forced to watch them suffer needlessly is inexcusable.

If I could design a punishment it would be to put the doctors through this kind of pain for the same amount of time that old man suffered. Then let's see if they start treating pain appropriately. Cause I guarantee you, without some kind of punishment for their actions, they will just continue on like they always have. Most people probably would prefer a lawsuit to that.

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