COVER STORY

Treating pain: Damned if you don't?

That's what a California jury said, in a controversial verdict that could change the way physicians respond to patients' pain.

By Mark Crane
Senior Editor

Did veteran internist Wing Chin recklessly permit a terminally ill patient to suffer intolerable pain in violation of California's elder-abuse law? Or did he become a scapegoat when a jury, swayed by emotion, bought the agenda of an advocacy group looking for a test case?

Those questions were at the center of a controversial trial last June in Hayward, CA, that could have ramifications for all primary care physicians. A jury found that Chin had committed elder abuse by inadequately treating his patient's pain. The patient's family argued that the drugs the physician had prescribed were the wrong ones and weren't nearly strong enough.

By a 9 to 3 vote, the jury awarded the family $1.5 million for their father's pain and suffering. That amount was later reduced to $250,000 under California law. Eight jurors favored imposing punitive damages, but nine votes are required.

The lawsuit is one of relatively few cases in which a physician faced a trial not for alleged negligence in diagnosis or treatment, but solely because of the way he managed a patient's pain. The trial is thought to be the first in the nation in which a jury has determined that inadequate treatment of pain can constitute elder abuse.

While many physicians worry that they could face criminal prosecution or regulatory action for overprescribing, the verdict means that underprescribing can be just as risky legally.

"Undertreatment of pain is widespread and is a much greater problem than over-treatment," says Kathryn Tucker, director of legal affairs for the Compassion in Dying Federation, an Oregon-based advocacy group that favors physician-assisted suicide and aggressive pain management. CDF provided legal assistance to the family of the patient in the Chin case. "This verdict is a wake-up call to the medical profession," says Tucker. "There must be accountability. Physicians who ignore established guidelines and allow their patients to needlessly suffer must face consequences."

The physician's defenders, including his state and local medical associations, say the verdict is unjust and that Chin was victimized by groups with a political agenda. "Doctors are damned if they do and damned if they don't," says Chin's attorney, Robert Slattery. "He did what 95 percent of other internists would have done. If he had administered the morphine the plaintiff's experts said was warranted, the patient likely would have died from respiratory distress, and Dr. Chin either could be sued for overmedicating the patient or might face disciplinary or even criminal charges. This is a very scary verdict."

A patient in pain shows up at the ER

On Feb. 16, 1998, retired railroad worker William Bergman, 85, presented to Eden Medical Center, a 275-bed hospital in Castro Valley, CA, with complaints of severe pain in his lower back. A longtime smoker with chronic obstructive pulmonary disease, Bergman had been treated for the previous 18 months for compression fractures of the spine by his family physician, who didn't have hospital privileges at Eden. Bergman also had dropped 30 to 40 pounds in the previous year.

A chest X-ray revealed a lesion in the lung, and emergency department physicians suspected lung cancer. They provided phenergan and two injections of morphine sulfate. While the family's attorneys say it provided good relief from pain, the patient went into respiratory distress and didn't breathe for about 15 seconds, according to Slattery.

Bergman was then admitted by Chin, who had never met the patient before but provides hospital care for the patients of Bergman's FP. Chin prescribed Demerol, 25 to 50 mg as needed, and ordered a series of tests, which indicated lung cancer but weren't conclusive. A bronchoscopy was strongly suggestive of the disease. The patient refused further testing and asked to be discharged to die in peace at home. Chin contacted a hospice organization for supportive care.

During Bergman's six days at the hospital, nurses asked him to assess his level of pain on a scale from 0 to 10, with 10 being the worst possible pain. All of his ratings were from 7 to 10—moderate to severe. However, notes recorded at other times by Chin, respiratory therapists, and nurses state that the patient said he "felt okay" or that his back pain was tolerable.

Bergman never protested that his pain was being inadequately treated—a point conceded by his family's attorneys. "He didn't want to be a patient, and he wasn't a complainer," says Tucker. "Still, his adult children witnessed his pain and often asked nurses to administer more medicine." Chin's attorney disputes that, saying the family never complained about their father's pain while he was hospitalized.

"The consensus in medicine is that serious pain like what Mr. Bergman experienced should be treated with around-the-clock medication, with additional medicine for breakthrough pain," says Kathryn Tucker. "Under the doctor's 'prn' order, the patient had to descend into awful pain before he got any medication. There was simply no reason why Mr. Bergman had to suffer as he did."

The patient was discharged after six days in the hospital. He received an injection of Demerol, and prescriptions for Vicodin and a fentanyl patch. Bergman's family pleaded for additional medication for their father, but Chin refused to order morphine at or after discharge.

After Bergman had been home for two days, a visiting hospice nurse found his pain level to be severe and out of control. She called Chin to obtain pain medication, but the internist referred her to the patient's family physician.

That doctor ordered morphine and additional fentanyl patches. The patient died the next day of probable lung cancer.

The family complains, then sues

Bergman's adult children wanted action to be taken against Chin. A physician put them in touch with the Compassion in Dying Federation, where Tucker recommended that they complain to the Medical Board of California, which had adopted pain guidelines in 1994. The family alleges that Chin ignored those guidelines along with others promulgated by the Agency for Healthcare Research and Quality.

The board reviewed the case, but took no action. Still, it sent a controversial letter to the family that read, in part: "Our medical consultant did agree with you that pain management for your father was indeed inadequate. However, there is insufficient evidence at this time to warrant pursuing further action in this case." That letter sparked substantial news media attention.

The family decided to sue, but faced a legal obstacle. Under California law, a patient's claim for pain and suffering dies when he does, says Tucker. "The family couldn't receive any monetary damages under a traditional malpractice action. So we had to become creative. We framed the case under the elder-abuse law, which permits survivors of an elder's pain and suffering to bring a claim. There's a higher burden of proof under the elder-abuse law, but we felt we could prove that the doctor was more than negligent. His actions, or inactions, were reckless."

At the trial, expert witnesses for the family testified that Chin's treatment seriously deviated from the standard of care and was "amazingly reckless" and "inexcusable." Chin's expert witnesses testified that his treatment was reasonable and the same as would have been provided by 95 percent of internists. They derided the claim that the patient should have been given morphine, which might have killed him.

The jury of six men and six women deliberated for four days before deciding that Chin was liable under the elder-abuse law. (The family had reached a confidential settlement with the hospital before the trial.)

Will this verdict serve as a precedent?

The reaction to the verdict was swift and loud. "I think that we are at a new place in law and medicine," says Kathryn Tucker of CDF. "Failure to treat pain is now something that physicians can be held accountable for."

Medical leaders had a different view. The jury ignored the facts to render an emotionally driven decision, argues vascular surgeon Sharon B. Drager, president of the Alameda-Contra Costa Medical Association, which joined the state association in blasting the medical board for its comments about the case.

"It was totally inappropriate for the board to issue that letter," says Sandra Bressler, director of professional standards and quality care for the California Medical Association. "The board found there wasn't sufficient evidence to proceed against Dr. Chin in any way, so it was gratuitous to term his care inadequate. He had no due-process rights or chance to respond."

Among Chin's colleagues in the east Bay Area, he has a solid reputation as a competent and compassionate physician. The 0- to-10 pain scale that received so much media attention is an extremely subjective way to assess pain, says Drager, since "virtually every seriously ill hospitalized patient considers his pain to be in the 7 to 10 range of the scale." She maintains that Chin was "victimized" by groups like CDF that saw the case as an opportunity to further their agenda for legalized euthanasia.

CDF's Tucker disputes the argument that physicians must walk a legal tightrope between overprescribing and underprescribing pain medication. "Between the two extremes, there is a wide swath of acceptable conduct that's within established guidelines," she says, warning that other physicians could face elder-abuse charges if they inadequately treat pain.

The plaintiffs may appeal the award, which had been reduced last August to $250,000 from $1.5 million. Under California's Medical Injury Compensation Act of 1975, there is a $250,000 cap on pain and suffering awards in malpractice cases, but the plaintiffs have argued that the cap shouldn't apply in an elder-abuse case.

Chin is also considering whether to appeal the verdict, says his attorney, Robert Slattery.

 

Mark Crane. Treating pain: Damned if you don't?. Medical Economics 2001;22:66.