Experts in the field of pain management have long held that the undertreatment of pain is a major public health problem. Because of its subjective nature, an effective system for measuring and monitoring what physicians should be doing to relieve their patients' pain has yet to be developed. However, a recent decision by a California jury may spur doctors and others in the health care profession to fast track the adoption of standards, in order to avoid costly liability.

An Alameda County Superior Court jury found Dr. Wing Chin guilty of elder abuse for undertreating a patient's pain, even though he had prescribed pain relief medication. Because the physician was sued under the Elder Abuse Act, the case was not subject to the $250,000 MICRA cap on damages, and the defendant was liable for the attorney's fees.

The facts of the case are purportedly as follows: William Bergman, an 85-year-old gentleman suffering from lung cancer, was admitted to the Eden Medical Center in Castro Valley, California. When he arrived at the hospital complaining of back pain, Dr. Chin purportedly prescribed Demerol to relieve the pain, however, the Demerol temporarily stopped his breathing. As a result, when the physician sent Bergman home, he did so with Vicodin and a skin patch containing another drug.

However, Bergman's children said the painkillers their father received weren't strong enough and that he suffered unnecessarily during his final days battling cancer. The jury agreed.

"The verdict has had a chilling effect on physicians," says William Miller, Esq. of Higgs Fletcher & Mack, who is Chairperson of the San Diego County Medical Society and San Diego County Bar Association Joint Medical-Legal Commission. "Traditionally, physicians have been more concerned about overtreating pain, which has been a focus of both the Drug Enforcement Agency and the state licensing board. The possibility of being sued for undertreating pain is daunting, particularly under the Elder Abuse Act which carries the potential for criminal sanctions and civil actions potentially not covered by insurance. Doctors have indicated that they feel caught between a rock and a hard place, with the potential for being charged with either overtreating or undertreating pain no matter what they do."

Attorneys within Higgs Fletcher & Mack have defended elder abuse cases throughout California, and are concerned that such cases may increase as the population ages and as the plaintiffs' attorneys see the potential to get around the limitations on malpractice awards.

"It substantially raises the financial risk for providers," says Miller. "In addition to arguably not placing a limit on damages, and the potential to recover attorneys' fees, a patient's pain and suffering possibly survives death and could accrue to the estate."