Question: To relieve intractable pain in a terminally ill patient, the physician administered increasing amounts of morphine. This led to respiratory arrest and hastened the patient's death. The physician's action is:

A. Medical malpractice.

B. Supported by a minority of physicians.

C. The intentional tort of assault and battery.

D. An example of “double effect.”

E. Homicide.

Answer: D. The “double effect” phenomenon describes situations in which a foreseeable adverse outcome supervenes, even though the intent was to confer a benefit. This doctrine of “secondary, unintended consequences” is commonly invoked to permit the proportionate, albeit aggressive, use of comfort measures such as narcotics in terminally ill patients. Among attending and house staff in a published survey, some 92%-94% agreed that “sometimes it is appropriate to give pain medication to relieve suffering, even if it may hasten a patient's death” (Am. J. Public Health 1993;83:14-23).

The doctor's action in this hypothetical case will therefore not amount to malpractice, as there is no breach of the standard of care and therefore no negligence. This is also not assault and battery, which is an intentional act that involves apprehension of or actual offensive touching without consent. In this clinical setting, consent usually has been explicitly given or implied by the patient or the surrogate decision maker.

The specter of a potential homicide charge may alarm, but no less an authority than the U.S. Supreme Court has reasoned otherwise. In Vacco v. Quill, the Court unanimously drew a distinction between aggressive palliation and physician-assisted suicide, clarifying that “in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, must, necessarily and indubitably, intend primarily that the patient be made dead” (Vacco v. Quill, 117 S. Ct. 2293 [1997]).

Pain management and comfort care become primary treatment goals even if cure is impossible. Dying patients fear that their pain will not be aggressively treated, and studies have repeatedly shown that physicians do not adequately treat pain.

In addition to providing pain relief, physicians should communicate their plans regarding palliative care by using open-ended questions, screening for unaddressed spiritual concerns, and listening actively and with empathy (Ann. Int. Med. 1999;130:744-9).

In a California trial that received widespread media coverage, an Alameda County jury turned in a verdict against an internist charged with elder abuse and reckless negligence because he failed to give enough pain medication to a patient dying of cancer (Bergman v. Eden Medical Center, No. H205732-1 [Sup. Ct. Alameda Co., Cal., June 13, 2001]). Under California law, death of a plaintiff extinguishes a claim for pain and suffering. The case was therefore brought under the elder-abuse law, under which the burden of proof was higher, requiring a reckless rather than a simple negligence standard.

The case involved William Bergman, an 85-year-old retired railroad worker with lung cancer, who was admitted to Eden Medical Center in early 1998. The lawsuit alleged that the treating physician was reckless in not prescribing effective medication for Mr. Bergman, who complained of severe back pain. The patient stayed at the hospital for 6 days, and nurses consistently charted his pain in the 7-10 range. On the day of discharge, his pain was at level 10. He died at home shortly thereafter.

After 4 days of deliberation, the jury, in a 9-3 vote, entered a guilty verdict and awarded &dollar;1.5 million in general damages. This amount was subsequently reduced to &dollar;250,000 because of California's cap on noneconomic damages.

Eight jurors wanted to award punitive damages, as they believed that the doctor had acted with malice or had intentionally caused emotional distress. However, no punitive damages were assessed because nine votes were needed.

The hospital had settled privately with the family before trial. The guilty verdict came despite defense expert testimony that the treatment provided was reasonable and would be the same as that provided by 95% of all internists.

Mr. Bergman's family had earlier filed a complaint with the California Medical Board, which took no action despite a medical consultant's conclusion that the hospital's pain management was inadequate. The medical board felt that it lacked clear and convincing evidence to find a violation of the Medical Practice Act.

The Bergman case is notable for being the first of its kind, and squarely puts physicians on notice regarding their duty to provide adequate pain relief. The closest previous decision finding liability for failure to treat pain involved a nursing home's failure to administer pain medications that had been ordered by the doctor (Estate of Henry James v. Hillhaven Corp., Super Ct. Div. 89 CVS 64 [Hertford Cty, N.C., Jan. 15, 1991]).

Contact the author at siang@hawaii.edu.

Aggressive Treatment of Pain