DOCTOR FOUND RECKLESS FOR NOT RELIEVING PAIN

$1.5 Million Jury Verdict For Family Of Cancer Patient Who Went Home To
Hayward To Die

In a trial that became a forum for the debate over how pain is treated in
American medicine, an Alameda County jury yesterday found that an internist
committed elder abuse and reckless negligence by not giving enough pain
medication to a Hayward man dying of cancer.

The jury awarded the man's family $1.5 million in general damages. But
jurors did not find that Dr. Wing Chin, a doctor at Eden Medical Center in
Castro Valley, had acted with malice or had intentionally caused emotional
distress, so there was no award of punitive damages.

The case is a major victory for patients' rights advocates who argue that
many doctors don't treat pain adequately, said Barbara Coombs Lee,
president of Compassion in Dying, a Portland advocacy group that provided
legal assistance for the lawsuit.

It's a good day for us, she said yesterday. This case was against all odds.
. . . This is a precedent-setting case because, to our knowledge, never
before has under-treating pain been defined as elder abuse.

Beverly Bergman, 45, the daughter of retired railroad detective William
Bergman, who died in 1998, said she was happy with the outcome.

We're very grateful that the jury worked so hard, she said. It'll send a
message to the medical community that they cannot under-medicate without
consequences.

After the verdict, Chin simply shook his head when a reporter asked for a
response, and then was whisked away by his attorney, Bob Slattery.

Slattery later said he was disappointed by the jury's decision. We're
reconsidering our options on the appeal, he said.

Eden Medical Center spokeswoman Cassandra Phelps also called the verdict
disappointing.

Dr. Chin has devoted his entire career to caring for patients, many of whom
are seniors, Phelps said. It is difficult for those who know and work with
him to accept the verdict.

In order for the Bergman family to win the case, they had to prove not only
negligence by Chin, which is usually enough in a malpractice suit, but
reckless negligence.

On their fourth day of deliberations, six men and six women decided 9-3
that there were elder abuse and recklessness, while deadlocking 8-4 on the
questions of malice and emotional distress. In a civil case, at least nine
jurors must agree to reach a decision.

The verdict will have lasting effects on pain treatment, doctors say.

It worries me because the message is, you're damned if you do and you're
damned if you don't, said Dr. Scott Fishman, who heads the University of
California at Davis Medical Center's division of pain medicine.

For years, most doctors have erred on the side of under-medicating for fear
of legal ramifications from potential addiction to pain killers, he said.

This case is going to say to (doctors), that it's going to be a risk not
treating pain, Fishman said.

Dr. Steven Pantilat, who teaches at the University of California at San
Francisco's medical school, said although doctors will now face pressure
from both sides, there's plenty of room in the middle to relieve pain for
patients safely.

It can be done. It can be challenging in some cases, but it's a practice
that should be well in the scope of a physician's practice, he said.

William Bergman, who suffered from lung cancer, was admitted to Eden
Medical Center in early 1998.

The lawsuit alleged that Chin was reckless in not prescribing strong enough
medication for Bergman, who complained of severe back pain.

Bergman stayed at the hospital for six days as nurses charted his pain on a
1-to-10 scale, 10 being the worst. A report rated his pain consistently in
the 7-to-10 range and on the day he was discharged, because he wanted to go
home to die, his pain was at level 10.

He died at home Feb. 24.

Bergman's family filed a complaint with the California Medical Board, which
took no action against Chin because it did not find clear and convincing
evidence of a violation of the Medical Practice Act, board spokeswoman
Candis Cohen said earlier.

Although the board's medical consultant concluded that the hospital's pain
management was inadequate, Cohen said not every error a physician makes
rises to the level where the board could take disciplinary action.

Cohen refused to comment yesterday on the verdict.

The jurors, who had been deliberating since Friday, said the debate was
intense, with arguments often escalating into shouting matches.

It was a very tough case for all of us, said jury foreman Carlos Clavel,
33, of San Lorenzo. Some of us didn't feel Dr. Chin was negligent. . . .
Some of us felt he used treatment based on his best judgment.

Another juror said that after hearing the evidence, it was obvious that the
charges were legitimate.

I felt the evidence was clear and convincing, said Sherrie Graston, 36, of
Fremont. Part of treating a patient is to treat pain.

The verdict fuels the fire for state Assemblywoman Dion Aroner, D-Berkeley,
who authored a bill that would require all California doctors to take a
pain management course.