Landmark jury award for undertreating pain
In a case that observers say should be a red flag for risk managers, a California doctor has been ordered to pay $1.5 million because he undertreated a dying man’s pain. The hospital’s records, dutifully maintained in compliance with standards on pain management, proved to be the doctor’s undoing because they showed that the man was in terrible pain and that the doctor must have known about it.
The case involved Wing Chin, MD, who treated an 85-year-old man at Eden Medical Center in northern California. The hospital staff assessed and charted the man’s pain levels as required by the Joint Commission on Accreditation of Healthcare Organizations. Those records showed that he always reported that the pain was 7 to 10 on a 1-10 scale, with 10 being the "worst imaginable" pain.
Chin provided him with a 25 mg Demerol for pain. (The starting dose is typically 100 mg.) The doctor ordered further Demerol only as needed, rather than ordering a constant schedule that experts say is key to controlling severe pain. Chin did not provide any stronger pain relief.
Requests for pain relief went unheeded
Tucker says the nurses documented the pain and the family’s repeated requests for pain relief but did not contact the doctor for a change in orders. The doctor’s visits to the patient also did not result in any change. The patient reported that his pain was a 10 on discharge. He died at home in terrible pain. His family claims that their pleas for pain relief were ignored.
Recent regulatory changes have upped the risk for providers when pain relief is inadequate, says Kathryn Tucker, JD, director of legal affairs with the Compassion in Dying Federation in Seattle. The Veterans Administration and the Joint Commission already require that pain be charted as a vital sign, which creates a record of pain management, for better or worse. "Those directives from the government make it more likely that a patient will complain if pain care is inadequate," she says. "And then if a lawyer comes on the scene and the substandard care can be proven, that could mean big trouble."
The California verdict was not the first warning. In an earlier case, a jury awarded $15 million, half of it punitive, from a nursing home where a patient had died in pain. The patient’s family alleged that a physician had ordered morphine for the man’s pain, but a nurse refused to administer it because she feared the patient would become addicted. She gave the man Tylenol instead.
In other cases, families have been compensated for the emotional stress of watching loved ones suffer. The Oregon Board of Medicine has disciplined a doctor for failure to provide adequate pain relief, Tucker says. In the California case, the family sued both the hospital and the physician, but the hospital settled out of court for an undisclosed sum of money. The jury’s $1.5 million verdict probably will be reduced to $250,000 in compliance with state caps on jury awards.
The Alameda County Superior Court jury heard the case for a month, during which the doctor testified that he followed established protocols in prescribing pain medication. The jury deliberated four days and then voted nine to three against the doctor. (California law does not require a unanimous jury in such cases.)
James Geagan, JD, the lead attorney for the plaintiff, said, "Medical experts testified that there were numerous serious deviations from Standards of Conduct. They called Chin’s conduct amazingly reckless’ and inexcusable.’" Geagan notes that the jury award could have been even higher. The jury could not reach a verdict on pain and suffering. Tucker also points out that the family sued the doctor for elder abuse rather than malpractice, because of provisions in California law. In an elder abuse case, the plaintiffs have to prove recklessness, a much higher standard than proving negligence, which would be required in medical malpractice.
"This case would have been easier to win in other states," Tucker points out. "This should be a real wakeup call. There is a serious risk to health care providers who won’t provide proper pain relief."
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