Lawsuit Highlights Pain Management Debate

The three children of a deceased man who "spent most of the final week of his life in severe pain" have sued his former doctor for failing to prescribe adequate pain treatment, marking "one of the first U.S. cases in which a doctor has gone on trial for allegedly undertreating a patient's pain," the Washington Post reports. The trial, set to begin tomorrow, alleges that Dr. Wang Chin, a California physician, prescribed "inadequate pain medication" to William Bergman, who died in 1998 of "apparent" lung cancer that had spread to his bones. Bergman repeatedly rated his pain as "moderate to severe" during the entirety of his hospital stay. However, after Bergman's discharge, Chin prescribed Vicodin tablets, even though Bergman could not swallow pills and his daughter said that the medicine had "been ineffective" for his back pain on previous occasions. Although Chin later ordered an injection of Demerol and a slow-release patch containing the narcotic fentanyl, Bergman experienced "severe back and abdominal pain" for three days. On the third day, a hospice nurse asked Chin to prescribe liquid morphine, which court records show he did not do. Another doctor agreed to prescribe the medication, but Bergman died the next day. Although Chin declined to comment, his lawyers said that his decision not to prescribe morphine was based on his "uncertainty about Bergman's diagnosis and his concern that the patient ... would respond adversely to the drug." An X-ray and an analysis of Bergman's lung tissue suggested that he had lung cancer, but the results were "not definitive." Although California law states that a family cannot seek damages for a patient's pain and suffering after the patient has died, Bergman's children are suing under a different state law that prohibits elder abuse.

The lawsuit brought by Bergman's children reveals an "increasing aggressiveness by patients and advocacy groups eager to improve the treatment of pain in the United States," the Post reports. A number of recent studies have found that physicians "frequently undertreat pain," largely because they fear investigation or discipline by medical licensing boards or government agencies such as the Drug Enforcement Administration. Ben Rich, an associate professor at the University of California-Davis Medical School, said, "Pain patients have been made the non-combatant casualties of the war on drugs. Physicians openly and notoriously acknowledge that they underprescribe (narcotic pain medicines) in order to avoid regulatory scrutiny." Kathryn Tucker, director of legal affairs for the Compassion in Dying Federation, said that doctors are much less likely to be investigated for undertreating pain. Tucker said that only one state medical board, the Oregon Board of Medical Examiners, has taken action against a doctor for undertreatment of pain. Two previous lawsuits charging physicians with undertreating pain have resulted in damage awards, and some legal experts maintain that more plaintiff victories are forthcoming. Barry Furrow, a professor at the Widener University School of Law, said, "Juries might well be very sympathetic in a country made up of aging baby boomers with low back pain and a lot of empathy" (Okie, Washington Post, 5/7).