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by Attorney Frank E. Reardon

January 2002


        During the 1990's, there were a number of lawsuits in the news relating to patient harm, even death, from overmedication. Perhaps the most widely know case occurred at a Boston teaching hospital where one patient allegedly died and another was seriously harmed from an overdose of chemotherapy drugs. As a result, many new safeguards have been enacted to protect patients from over medication. 
        A new evolving trend in the law, is premised upon the under medication of patients for management of pain.  Pain management guidelines have been promulgated by the JCAHO and the American Dental Association.  Now there is a movement underway to have pain management guidelines apply to any facility receiving Medicare or Medicaid funding.

          Against this backdrop, a California family sued a physician for allegedly under medicating their father who was dying of lung cancer.  In the case of Bergman v. Eden Medical Center, the family of Dr. Bergman sued Dr. Wong Chin for failing to prescribe sufficient pain medication.  Mr. Bergman was admitted to the hospital in 1985 suffering from lung cancer and experiencing severe back pain.  He remained in the hospital for five days.  During his hospitalization, the nurses charted his pain as being between 7 and 10, with 10 being the most extreme pain.  The physician's order called for 25 mg of Demerol on a PRN basis.  The plaintiff asserted that not only was the amount of medication inadequate but  the PRN order meant that the patient had to be in experience significant pain before being administered additional medication.

           The family sued on two primary grounds.  The first was that he had committed medical malpractice by under medicating.  The second was that he had violated the California elder abuse statute.  The jury agreed with the family and awarded the family $1.5 million dollars.  However, California has a cap on damages for certain medical malpractice claims, and accordingly, the trial judge reduced the award to $250,000.  The decision to reduce the award is likely to be appealed.  The plaintiff argued that the elder abuse statute allowed for a more extensive award including punitive damages and that the verdict should not have been reduced.

          The focus in medication litigation does seem to be shifting toward under medication as a viable cause of action.  The difficulty of protecting against this type of claim is two fold: the fear of overmedication allegations and the subjective nature of evaluating pain.  Thus, the development of hard and fast guidelines is difficult.  However, at a minimum, the JCAHO requirements are an excellent starting point.  The adoption of these requirements is important.  Once adopted, training physicians and staffs about pain management treatment regimes is imperative.  Further, physicians specializing in pain management should be available for consultation.  In California, it is reported that the utilization of pain management consults increased dramatically after this jury verdict.  Proving that such guidelines were known to the staff and were adhered to in the treatment of a patient should prove to be an extremely effective weapon when defending oneself  in lawsuits that allege that a patient suffered unnecessarily from their underlying disease.