Hey, did you feel it? The earth moved, but it had nothing to do with sex. A jury in California’s Alameda County convicted a doctor of elder abuse and reckless negligence. Specifically, internist Dr. Wing Chin was found guilty of not giving sufficient pain medication to his patient William Bergman, a retired railroad detective.
The verdict, which according to reports came after long and argumentative jury deliberation, awarded Mr. Bergman’s family $1.5 million in general damages. There were no punitive damages since the doctor was not found guilty of intentional emotional distress or malice.
But that general damages verdict sends a chill through the medical community and has patient’s rights supporters cheering.
You might be wondering, what’s the big deal? Well, it is a big deal – legally, medically and humanely. Bottom line, the case sets a legal precedent in an area of medical care, particularly for the elderly, which has been the center of controversy for years. The core issue is pain and how it’s handled.
How much suffering is OK? How do you measure pain? Are decisions for pain treatment made on the basis of the disease, the length of time of the illness, the number of days in the hospital, the wishes of the patient or the family or the nurses or the doctor, the possibility of the patient becoming addicted, the possibility of the patient overdosing, or the fear of charges of malpractice and the threat of lawsuits? Or is it perhaps based on the age of the patient?
The first question, how much suffering is OK? is tough because no one wants to suffer and no one wants a loved one to endure terrible pain, especially if that person is in the last stages of a terminal disease. The knowledge that death from the illness is inevitable leads most people to want the patient to be comfortable in their last days.
But how do you measure pain? The truth is, only the sick person can answer that, and everyone has a different tolerance – even for different kinds of pain. It’s almost impossible to determine how awful it is for someone else, particularly with a terminal illness.
Anyone who’s been in a hospital has probably seen the stupidly simple charts that are used for “rating” the patient’s pain. It consists of a series of happy-face type sketches – ranging from full smile to a tortured grimace and variations in between. The nurse (or other caregiver) is supposed to use that as a guide to determining for the medical chart how the patient is reacting to any pain there might be.
Given the number of nurses aides who don’t speak English very well who are being used in hospitals today instead of qualified registered nurses, I suspect the reason the sketches are used is to deal with the level of incompetence of care. Surely, a graduate of a decent nursing school in this country can assess pain and suffering in their patients without having to use a system that is comparable to simplistic traffic signs which are meant for nearly illiterate drivers.
For Mr. Bergman, who had lung cancer, pain was a major issue. He complained of severe back pain after being admitted to Eden Medical Center in early 1998. The nurses consistently rated his pain level at the highest levels, and it was the maximum on the day he was discharged because he said he wanted to go home to die. Which he did, on Feb. 24.
The issue was what kind and how much pain-relief medication he received. The contention was that it was not enough to relieve him. The family filed a complaint with the state medical board which took no action citing that there was no violation of practices. The lawsuit followed.
Clearly, the verdict is a message to health-care providers that pain relief treatment is an important issue in patient care and in fact, denial of sufficient pain relief is not acceptable.
The argument over how much is enough is one facing thousands of patients every year. Too often the attitude among physicians is that too much will create an addict. Why that should be an issue when the person is dying anyway is something I have never understood.
However, I suspect another motive is lurking beneath the surface. Many of these situations involve older patients who have no chance of survival and in fact, if they did survive would have, as they say today, a “questionable quality of life.”
Translation? They’re old, they’re not good for much, they cost a lot to care for, they can’t communicate very well and they’re going to die anyway – so why waste expensive pain killers on them.
Given the attitude of HMOs, insurance companies and other health-care plans to shave the bottom line, my translation is probably right on the mark.
In my opinion, good for you Beverly Bergman. Your lawsuit in defense of your dead father was successful and is a beacon in the night for thousands of others who face such cruelty every day by health-care “professionals” who overrule families and tell them they know best. Your lawsuit tells them clearly they don’t. It’s about time.