Inadequate Pain Management Was Elder Abuse

Jury Awards $1.5 Million in Elder Abuse Case Against Physician

Hayward, CA — June 13, 2001 — An Alameda County (Hayward) Jury awarded $1,500,000 to the surviving children of decedent, William Bergman. The plaintiffs were Beverly Bergman, Robert Bergman and Alice Edlinger, the children of decedent, William Bergman. The defendant was Wing Chin, M.D., of Castro Valley. This verdict is believed to be the first time a physician has been held liable in a civil trial for elder abuse.

The trial began on May 14, 2001, before Alameda Superior Court Judge David E. Hunter. According to plaintiffs, this was an action for personal injuries suffered by decedent, William Bergman, as a result of inadequate pain management while in the hospital and under the care of Wing Chin, MD. Plaintiffs asserted that their father, William Bergman, was brought into the hospital on February 16, 1998, when he was discovered by his daughter sitting in a chair in severe pain, and unable to move. Mr. Bergman was initially diagnosed as suffering from multiple compression fractures, with a strong possibility of lung cancer, was in intractable pain in the emergency room, and was admitted to the hospital under the care of Dr. Chin.

While in the hospital, plaintiffs alleged that their father continued to be in severe pain, registering pain levels on numerous occasions of 7, 8, 9 and 10 on a scale of 1 to 10, with 10 being defined as the worst pain imaginable. Despite this, Dr. Chin only prescribed Demerol on a PRN (as needed) basis. Hospital records indicated that this pain medication was never changed during the entire five days of hospitalization. On February 21, 1998, after having undergone several different types of tests to attempt to definitively determine if Mr. Bergman had lung cancer, Mr. Bergman decided not to undergo any further testing and requested to go home. Dr. Chin agreed, and prepared to discharge him to hospice care.

When Beverly Bergman arrived at the hospital on the day of her father's discharge, she discovered that Dr. Chin had only prescribed Vicodin for Mr. Bergman's pain, even though Mr. Bergman had known difficulty in swallowing. The daughter insisted that Dr. Chin be contacted and that more pain medication be provided to her father. Dr. Chin, when contacted by the hospital staff, ordered a shot of Demerol be given to Mr. Bergman, and, further, ordered a duragesic patch (a time released opioid) be placed on Mr. Bergman. The patch was in a dose at least three times greater than the Demerol Mr. Bergman had received while in the hospital.

Two days after arriving home, the hospice nurse found Mr. Bergman's pain to be "out of control," and attempted to contact Dr. Chin for additional pain medication. After several telephone calls, over a period of approximately 1 ½ hours, the hospice nurse was told to contact another doctor. The hospice nurse did so, and received a prescription for a form of liquid morphine and two more patches. The medication was administered, and Mr. Bergman's pain was alleviated. Mr. Bergman passed away the following day.

Plaintiffs' experts testified that the modern course of treatment for a patient in intractable pain, such as Mr. Bergman, was to provide around–the–clock pain medication, with additional pain medication "as needed" for break through pain. They further testified that the great wealth of information from the Medical Board, Medical Literature and various statutes required Dr. Chin to provide proactive pain treatment. As a result, it was their opinion that the care rendered by Dr. Chin was "appalling" and "egregious."

Defendant's experts asserted that Dr. Chin's pain management was well within the standard of care, and was an acceptable judgment on his part. The jury found by clear and convincing evidence that Dr. Chin's conduct with respect to Mr. Bergman constituted elder abuse, and, further, that such conduct was reckless. The jury awarded plaintiffs damages for the pain and suffering of William Bergman totaling $1,500,000. The jury was unable to reach a decision on plaintiffs' claim for intentional infliction of emotional distress upon Mr. Bergman. Defendant made no settlement offers prior to trial.

Plaintiffs were represented at trial by James Geagan of the Law Offices of James Geagan, of Sonoma, and Clayton Kent of Brayton Purcell LLP, of Novato, California. Defendant was represented by Robert Slattery and Ricardo Martinez of McNamara, Dodge, Ny, Beatty, Slattery & Pfalzer LLP, of Walnut Creek, California.