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A $1.5 million verdict in California has given new meaning to the state’s elder abuse law and could prompt malpractice suits in other states over inadequate treatment for pain. An Alameda County Superior Court jury issued the judgment against Dr. Wing Chin, an internist at the Eden Medical Center in Castro Valley, Calif., to the family of the late William Bergman, who as a dying lung cancer patient spent five days in the hospital in what the family said was excruciating pain. Compassion in Dying, a nonprofit, Oregon-based organization that worked with the family, said that the verdict was a powerful message about a national problem — inadequate pain management, especially for elderly patients. This “is a new type of liability for physicians in an area where they have not up to now been held accountable, in the area of pain management,” said Kathryn Tucker, legal affairs director at Compassion in Dying and co-counsel in the case. Bergman v. Eden Medical Center, No. H205732-1 (Sup. Ct. Alameda Co., Calif.). Chin’s lawyer said that he did not neglect Bergman and resisted over-medicating him to avoid killing him. The verdict against Chin is the first case of physician neglect and abuse under the California Elder Abuse and Dependent Adult Civil Protection Act. PAIN AND DEATH Bergman, 85, a retired railroad worker, checked into Eden Medical Center on Feb. 16, 1998, complaining of intolerable pain. He was discharged five days later and died on Feb. 24, 1998. Nurses charted pain levels ranging from 7 to 10, with 10 points being the greatest possible pain. Bergman rated his pain at 10 when he was discharged. During his stay in the hospital, Chin prescribed 25-milligram injections of the narcotic Demerol, one quarter the recommended dose, according to Tucker, who is also of counsel at Seattle’s Perkins Coie. On the day Bergman was discharged, Chin wrote a prescription for an oral analgesic. At the pleading of Beverly Bergman, Bergman’s daughter, he was given another shot of Demerol and a skin patch containing the narcotic fentanyl. When Bergman returned home, the family called in his regular doctor, who prescribed appropriate medication, the suit said. The suit, brought by Beverly Bergman and her brother and sister, Robert Bergman and Alice Edlinger, was the first case to frame the cause of action as elder abuse. Under California’s malpractice law, only the victim can collect damages for pain and suffering. To prove elder abuse, the Bergmans had to show that the doctor’s conduct was reckless, rather than negligent, as in malpractice cases. Lead trial counsel James Geagan of Sonoma, Calif.’s Law Offices of James Geagan said that experts testified to having found “numerous serious deviations from the standards of conduct.” The verdict came in a 9-3 vote on the fourth day of deliberations. Tucker said the plaintiffs were helped by a showing that Chin did not comply with clinical standards published in 1992 by the federal Agency for Health Care Policy and Research. The guidelines required Chin to prescribe medication to block the pain continually, rather than to wait for the patient to ask for help. She added that it means every patient has the right to enough pain medication, even if that would hasten his death. Chin’s lawyer, Bob Slattery of the McNamara Law Firm of Walnut Creek, Calif., said lung cancer was never positively diagnosed. He said Bergman’s pain was from compression fractures in the spine, and that was what Chin treated him for. He said nurses turned him every two hours to treat the back pain and gave him medication each time he wanted it. Slattery alleged that Bergman died from over-medication, not lung cancer. He said Bergman was sent home with a fentanyl patch and was given two more by the doctor who treated him at home. He was also given a prescription with liquid morphine by the follow-up doctor. “He fell asleep and didn’t wake up,” Slattery said. During the trial, Chin testified that morphine relieved Bergman’s pain in the emergency room but that it suppressed his breathing and so he declined to prescribe more. Slattery said there were grounds for possible appeal, which he declined to describe in detail. “I question whether it was ever meant to apply to this kind of setting,” Slattery said of the abuse law. “This case is not something where the doctor neglected the patient.” The medical center settled but denied fault. It also agreed to expand education in pain management for doctors.

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