San Francisco Chronicle

Skimping on elderly's pain drugs 'like torture'

Tyche Hendricks, Chronicle Staff Writer Friday, May 4, 2001

Losing her 85-year-old father to cancer was hard enough, but

watching him on his death bed in excruciating pain was unbearable.

"Undertreatment of pain is like torture," said Beverly Bergman, who

is suing her dad's East Bay doctor for failing to provide enough

painkillers to ease his torment, alleging not only medical

malpractice but elder abuse as well.

According to pain experts, the elderly are particularly at risk of

being shortchanged on pain medicine, and as the American population

ages, the problem becomes more widespread.

The groundbreaking trial, which opens today in Alameda County

Superior Court, is the first case of its kind, in which

undermedicating is being called elder abuse, according to Kathryn

Tucker, legal director of the Oregon nonprofit Compassion in Dying

Federation and co-counsel in the civil suit. Lawsuits usually stem

from doctors' overprescribing narcotics, she said.

The suit, brought by Bergman and her brother and sister, Robert

Bergman and Alice Edlinger, claims that internist Dr. Wing Chin was

reckless in not prescribing strong enough pain medication for

retired railroad detective William Bergman of Hayward as he battled

lung cancer in 1998. The elder Bergman was treated by Chin at Eden

Medical Center in Castro Valley in mid- February of that year, when

Bergman complained of severe back pain, according to the suit.

"I had this terrible, helpless feeling," Beverly Bergman said about

listening to her father moan in agony. She said she wanted him to

receive a more powerful painkiller, such as morphine, which had

helped ease her mother's last days when she too died of lung cancer

a few years earlier.

Chin's attorney, Bob Slattery of Walnut Creek, said Chin had treated

Bergman appropriately.

"Dr. Chin is going to be vindicated in this case," Slattery said.

"He complied with the standard of care, and what he did was

appropriate for this individual patient."

Chin declined to comment on the suit.

During Bergman's six-day stay at the hospital, nurses charted his

pain on a 1-to-10 scale, 10 being the worst pain imaginable, said

Tucker. Bergman, whose children described him as stoic, consistently

reported pain in the 7-to-10 range, said Tucker. On the day Bergman

was discharged, because he wanted to go home to die, his pain was at

level 10, Tucker said.

While Bergman was hospitalized, Chin prescribed 25-milligram

injections of the narcotic Demerol, one quarter the recommended

dose, according to Tucker. On Bergman's discharge, Chin wrote a

prescription for Vicodin, an oral analgesic, although when Beverly

Bergman pleaded for something stronger, Bergman was given another

shot of Demerol and a skin patch containing another narcotic, but

one which didn't take effect for hours, according to the plaintiffs.

He died at home on Feb. 24.

MESSAGE BEHIND SUIT

Beverly Bergman said her family had decided to file the suit "to get

across to other doctors that there are consequences for not

following the rules."

Compassion in Dying filed a complaint on the Bergman family's behalf

with the California Medical Board, which took no action against Chin

because "we did not find clear and convincing evidence of a

violation of the medical practice act," said board spokeswoman

Candis Cohen. Although the board's medical consultant concluded that

the hospital's pain management was inadequate, Cohen said not every

error a physician made rose to the level where the board could

discipline the physician.

Barbara Coombs Lee, president of Compassion in Dying, said the

organization,

founded in 1993, has broadened its scope to national advocacy

directed at "raising the consciousness of medical board scrutiny" of

potential undermedication of terminally ill patients. In California,

the group has offices in San Francisco and Orange County. "We're the

only organization pressing for accountability" by doctors

prescribing painkillers, she said.

The undertreatment of pain is a widespread problem, according to Dr.

Allan Basbaum, the head of the Anatomy Department at the University

of California at San Francisco and a pain researcher. Many doctors

are afraid of losing their licenses for overprescribing narcotics.

Others take a textbook approach rather than listening to what their

patients are telling them. In both cases, the patient suffers

unnecessarily, he said.

HESITANCY IS 'APPALLING'

"The physician doesn't know how much pain a patient has," he said.

"If the patient says they're in pain, you believe them. If you're

not comfortable giving them more medication, bring in someone who

is. The notion of hesitancy to treat pain in someone who's dying is

appalling."

The elderly suffer an inordinate risk of undermedication,

researchers say.

A Brown University study, reported in the Journal of the American

Medical Association last week, found that nationwide, 40 percent of

nursing home patients with acute or chronic pain did not get

treatment that brought them relief.

Although in the past there has been a reluctance by doctors to treat

pain aggressively, said Tucker, Chin should have been aware that in

the past decade the medical consensus had shifted.

In 1994, the California Medical Board issued guidelines encouraging

doctors to be more prompt and aggressive in providing medications

for pain. And in 1997 the California Legislature approved the Pain

Patient's Bill of Rights, which grants patients the right to request

the painkillers of their choice.

Tucker, who is joined in the case by Bay Area attorneys Clay Kent

and Jim Gaegan, said the Bergman children were suing under

California's Elder Abuse and Dependent Adult Civil Protection Act

because, unlike in California malpractice law, a patient's pain and

suffering survives death and can accrue to the estate. Plaintiffs

have won malpractice suits for undertreatment of pain in two other

states, North and South Carolina, she said.

To prove elder abuse under the act, the Bergmans must show that the

doctor's conduct was reckless, rather than merely negligent, as in

malpractice cases, but if they do, they can potentially recover

punitive damages, and there is no cap on the amount of money they

can recover.

HOSPITAL SETTLED WITH FAMILY

Eden Medical Center is also named in the suit, although the hospital

settled with the family out of court last month for an undisclosed

sum of money and a promise to educate the medical staff in a new

approach to pain management.

As a result of the Bergmans' suit, "our protocols have changed,"

said hospital spokeswoman Cassandra Phelps. "They're more aggressive

in assessment of pain and more detailed, and the patient plays a

greater role, so we can be more aggressive in alleviating pain."

Chin's attorney had sought to get the claim of elder abuse dropped,

but an appeals court said the case should go to trial.

"That's significant," said Tucker. "The court has made it clear that

it does go to a jury on the question of whether recklessness

occurred. A claim of inadequate pain care can survive a defense

motion to dismiss it."

©2002 San Francisco Chronicle