DOCTOR'S DUTY TO EASE PAIN AT ISSUE IN CALIF. LAWSUIT;
PHYSICIANS ARE WARY IN PRESCRIBING NARCOTICS

William Bergman spent most of the final week of his life in severe
pain, apparently caused by lung cancer that had spread to his bones.
Now, more than three years after his death at age 85, Bergman's
children are suing his doctor for failing to prescribe drugs powerful
enough to relieve their father's suffering.

The lawsuit against physician Wing Chin, scheduled to go to trial
tomorrow in Hayward, Calif., is one of the first U.S. cases in which a
doctor has gone on trial for allegedly undertreating a patient's pain.
The suit reflects an increasing aggressiveness by patients and
advocacy groups eager to improve the treatment of pain in the United
States.

Despite effective medicines and clear standards for their use, medical
authorities agree that pain treatment is often woefully inadequate.
Multiple studies in recent years have found that doctors frequently
undertreat pain. A 1994 study found that 50 percent of people who died
in the hospital experienced moderate or severe pain at least half of
the time during their last three days of life. Surveys of doctors have
found that many underuse narcotics in patients with severe pain
because they fear they will be investigated or disciplined by medical
licensing boards or government agencies such as the Drug Enforcement
Administration.

"Pain patients have been made the noncombatant casualties of the war
on drugs," said Ben A. Rich, an associate professor of bioethics at
the University of California at Davis Medical School. "Physicians
openly and notoriously acknowledge that they underprescribe [narcotic
pain medicines] in order to avoid regulatory scrutiny."

Concern about the problem recently prompted the Joint Commission on
Accreditation of Health Care Organizations to require hospitals to
assess and manage pain appropriately as a condition of
accreditation.

Bergman's daughter Beverly, a mental health advocate in Oakland, said
she spent two nights listening to her father moan and shake in agony
after Chin discharged him from the hospital with what she said was
inadequate pain medication. Chin declined to prescribe liquid
morphine, a standard treatment for patients with pain from metastatic
cancer. She said her father finally obtained relief when another
doctor agreed to prescribe the medicine. He died the next day.

"I think the extreme pain he was in just wore him out," Beverly
Bergman said.

Sad and angry about her father's care, Beverly Bergman sought help
from the Compassion in Dying Federation, a nonprofit advocacy group.
The organization helped the family file suit against Chin and the
hospital that treated Bergman after the Medical Board of California
declined to act on Beverly Bergman's complaint against the doctor,
said Kathryn Tucker, the organization's director of legal affairs.

"What we've tried to do . . . is to bring a measure of accountability
for failure to treat pain adequately," Tucker said.

Chin declined to be interviewed, and his lawyers did not return a
reporter's telephone calls and e-mails. A medical expert witness hired
by Chin's lawyers testified in a deposition that he thought Chin had
treated Bergman's pain appropriately. In court documents, Chin's
lawyers contend that his decision not to prescribe morphine was based
on his uncertainty about Bergman's diagnosis and his concern that the
patient, who had chronic lung disease, would respond adversely to the
drug.

The family settled its suit against Eden Medical Center in Castro
Valley, Calif., the hospital where Bergman was treated. As part of the
settlement, the hospital has agreed to provide pain management classes
to its staff and to doctors who admit patients to the hospital, said
hospital spokesman Cassandra Phelps.

Bergman, a lifelong smoker, was admitted to the hospital in February
1998 with severe low back pain. Beverly Bergman said her father had
recently lost weight and had been suffering pain from a compression
fracture of a spinal bone. She said a chest X-ray revealed possible
lung cancer and Chin, who had not previously been Bergman's doctor,
admitted her father to the hospital for tests. To treat his pain, Chin
prescribed intravenous Demerol, a narcotic, to be given in 25 or 50
milligram doses as needed.

"Every time I saw my father, he was in pain," Beverly Bergman said. "I
had to . . . get the nurse and ask her to give my dad a pain shot."

Nurses at the hospital periodically asked Bergman to rate his pain on
a scale of one to 10 and recorded his responses. All of the ratings
charted in Bergman's hospital record range from seven to 10,
corresponding to moderate to severe pain. However, according to court
records, notes recorded at other times by Chin and by respiratory
therapists state that the patient said he "felt okay" or that his back
pain was tolerable.

Bergman underwent a procedure to obtain lung tissue -- and the results
were suggestive of cancer but not definitive. Beverly Bergman said
Chin told her that her father probably had lung cancer. When she
relayed this news to her father, she said, he refused further tests,
saying he wanted to receive hospice care at home.

On the day Bergman was discharged from the hospital, he rated his pain
at 10. Although Bergman could not swallow pills, Chin prescribed
Vicodin tablets, a pain medicine that had been ineffective for her
father's back pain on previous occasions, Beverly Bergman said. When
she complained that he needed something stronger, she said, Chin
ordered an injection of Demerol and a slow-release patch containing
fentanyl, a narcotic.

For the next three days, Beverly Bergman said, her father experienced
severe back and abdominal pain. She said she tried and failed to get
him to swallow the crushed Vicodin tablets. On the third day, she
said, a hospice nurse assessed his pain at 10 and called Chin to ask
him to prescribe liquid morphine. According to court records, Chin did
not prescribe the morphine.

Beverly Bergman said that later that afternoon, a doctor who had
previously treated Bergman wrote the prescription and she gave her
father a single dose. "Then he was finally out of pain," she recalled.
He died the next day.

Tucker said a pain management expert who reviewed the case for the
Compassion in Dying Federation concluded that Chin's treatment of
Bergman's pain was inadequate. "He basically robbed him of the
remaining days of his life that could have been spent in peace and
dignity," Tucker said.

In a letter responding to Beverly Bergman's complaint about Chin, the
Medical Board of California stated, "Our medical consultant did agree
with you that pain management for your father was indeed inadequate."
However, the letter continued, "there is insufficient evidence at this
time to warrant pursuing further action in this case."

Tucker said she was stunned by the board's inaction because
California's laws and policies on pain treatment are among the most
progressive of any state.

Candis Cohen, a spokeswoman for the medical board, said California law
requires "clear and convincing" evidence of error, a high standard of
proof, before the board can discipline a doctor.

Among state medical boards, only the Oregon Board of Medical Examiners
has ever taken action against a doctor for undertreatment of pain,
Tucker added.

Two previous lawsuits have resulted in damage awards for
undertreatment of pain, Tucker said. A North Carolina jury awarded $
15 million in damages in a 1990 suit against a nursing home where a
nurse failed to administer prescribed pain medicine to a terminally
ill patient. (The case was later settled on appeal for an undisclosed
amount.) The judge in a 1997 case in South Carolina awarded $ 200,000
in damages for pain and suffering caused by inadequate treatment of a
cancer patient's pain.

Tucker said that under California law, a family cannot seek damages
for a patient's pain and suffering once the patient is dead. For that
reason, the Bergman children are suing Chin under a law that prohibits
elder abuse. To win the case, their lawyers must convince a jury that
Chin was guilty of "reckless negligence," a difficult standard.

Until recently, lawyers would have considered such a suit unwinnable,
said Barry R. Furrow, a professor at Widener University School of Law
in Wilmington, Del. "Today, I think the law is changing," he said. "It
just takes a couple of jury verdicts. Juries might well be very
sympathetic in a country made up of aging baby boomers with low back
pain and a lot of empathy."