Doctors Brace for Lawsuits Over Undertreatment of Pain


Physicians who used to worry about prescribing too much pain medication now have a new liability problem to worry about: not prescribing enough.

“The pendulum has swung the other way,” said Jay Westbrook, clinical director for palliative care and bereavement service at Valley Presbyterian Hospital in West Van Nuys, Calif. “Doctors are much more likely these days to get into trouble for failing to manage someone's pain than for writing an [inappropriate] prescription for OxyContin.”

Cases such as Bergman v. Eden Medical Center have raised awareness of the issue, according to Mr. Westbrook. In that case, tried in 2001, jurors awarded $1.5 million to the family of William Bergman, a California hospital patient with multiple compression fractures and possible lung cancer.

Mr. Bergman's children alleged that during their late father's hospital stay, his physician, Wing Chin, prescribed only Demerol as needed, despite the fact that Mr. Bergman registered pain levels of 7–10 on a 1–10 scale. The prescription remained unchanged during the 5-day hospital stay.

On the day of discharge to at-home hospice care, Dr. Chin prescribed hydrocodone (Vicodin) capsules for pain even though Mr. Bergman had known swallowing difficulties, the suit alleged. After Mr. Bergman's daughter insisted that her father needed more medication, he was given a shot of meperidine (Demerol) and a fentanyl transdermal (Duragesic) patch.

Two days later, the hospice nurse decided that Mr. Bergman's pain was “out of control” and called Dr. Chin, and, after several phone calls, was referred to another doctor 11/2 hours later. The second doctor prescribed liquid morphine and additional pain patches, which alleviated the pain. Mr. Bergman died the next day.

The Bergman case was unusual because it was prosecuted under the state's elder abuse and dependent adult law, not malpractice law. Cases like this “would come under malpractice in other states,” said Barbara Coombs Lee, president of the Compassion in Dying Federation, a Portland, Ore. group that advocates for the rights of dying patients. However, under California law, claims for “pain and suffering” cannot be made after a patient dies.

But California's Elder Abuse and Dependent Adult Civil Protection Act, passed in 1992, allows prosecutions related to mistreatment of anyone aged 18–64 years who was admitted to a 24-hour inpatient facility, such as an acute care hospital.

Compassion in Dying, which worked with the Bergman family, hopes that lawsuits such as the Bergman case will stir physicians to look at their own pain treatment protocols. “Doctors are undereducated and undermotivated,” Ms. Coombs said. “That's the purpose of these lawsuits—to motivate them and overcome their sense of self-protection” in regard to the Drug Enforcement Administration.

Compassion in Dying is considering bringing forth several similar cases, according to Ms. Coombs. But B. Eliot Cole, M.D., director of education at the American Academy of Pain Management, Sonora, Calif., is not so sure that's a good idea.

“I am not in favor of using courts to make this happen,” he said. But he acknowledged that these cases, if successful, might help patients in the long run. “Do I think it's going to help more people in pain to get help, and galvanize all of us in medicine to look more closely at our own practices? Yes. In a lot of ways, a lot of people will benefit from this very awful situation.”

California legislators also have taken notice of the problem. In August, the state legislature passed SB 1782, which would require the California District Attorneys Association to work with law enforcement and medical groups to develop protocols for investigations related to physicians' pain medication prescribing habits.

“It is the intent of the legislature to alleviate [physicians' fear of criminal prosecution] by providing for proper review of cases involving the prescription of pain medication before criminal charges are filed,” the legislation reads, which was awaiting Gov. Arnold Schwarzenegger's (R) signature at press time.

Mr. Westbrook, who also lectures on pain management, predicted that physicians would see more lawsuits related to undertreatment of pain—in both the civil and criminal realm. “It's tough, but the bottom line is that pain isn't okay, and it's not okay to leave a patient's pain unaddressed.”

Mr. Cole agreed, and offered advice to physicians struggling with this issue. “You'll have to understand that practicing medicine will always incur some risk, so find a happy medium. If you're loosey-goosey with your prescription pad, you'll have all kinds of problems. If you're tight with your prescription pad, you'll have problems too.”

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