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Doctor liable for not giving enough pain medicine

HAYWARD, California (CNN) -- In a civil case that could have broad ramifications for how patients in pain are treated, a California jury Wednesday found a doctor liable for recklessness and abuse for not prescribing enough pain medication to a patient, who later died of cancer.

The jury in Alameda County Superior Court called on the doctor to pay the patient's family $1.5 million dollars for pain and suffering of the patient. Under California law, however, the cap for such awards is $250,000, and the judge will likely reduce the jury's award.

The lawsuit was brought against Dr. Wing Chin by the three children of William Bergman, who was treated by Chin at Eden Medical Center in Castro Valley, California, in February 1998. Bergman had been admitted to the hospital for treatment of stress fractures in his back, but doctors later discovered he had lung cancer.

CNN's James Hattori reports on the California court ruling against a doctor accused of not prescribing enough pain medication (June 14)

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In their suit, plaintiffs Robert Bergman, Beverly Bergman, and Alice Edlinger alleged Chin was reckless in not prescribing sufficient medication to ease their father's suffering. They further charged that the lack of treatment constituted elder abuse under state law. After six days in the hospital, the 85-year-old retired railroad employee was discharged to his home, where he died three days later of lung cancer.

During the month-long trial, the doctor testified he followed established protocols in prescribing pain medication to Bergman. His attorney Bob Slattery also argued neither the patient nor his family requested that the doctor prescribe more pain medication to alleviate the suffering.

Slattery said he would appeal the verdict.

This is the first verdict in a lawsuit brought against a doctor under California's Elder Abuse and Dependent Adult Civil Protection Act. In a break with malpractice standards, the act allows survivors to sue for a patient's pain and suffering.

The standard of proof in this type of case is much higher than for a medical malpractice lawsuit. Jurors must find that the doctor was reckless, not simply negligent as is required to prove malpractice. Under the act, plaintiffs may also be entitled to punitive damages for pain and suffering, but in this case, because the jurors deadlocked 8-4 on the question of whether Chin demonstrated malice or oppression of an elderly person, no punitive damages were awarded.

The jury of six men and six women voted nine to three for the plaintiffs over four days of deliberation. In California, a civil jury requires only nine votes to reach a verdict. The hospital reached a separate settlement with the family for an undisclosed amount prior to the start of the trial.

The plaintiffs also asked the judge to issue an injunction requiring Chin to attend pain management training, a matter still to be determined. The next hearing date is for June 26.

"If he had agreed to this in the first place, none of us would be here today," Jim Geagan, lead attorney for the plaintiffs told CNN.



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