By Loree Cook-Daniels

Suing under the California Elder Abuse and Dependent Adult Civil Protection Act, on June 13th, 2001, the surviving children of 85-year-old William Bergman won a $1.5 million judgment from his physician for undertreatment of Bergman’s pain.

Bergman was admitted to a hospital with severe back pain for six days in February of 1998. A physician who was new to him, Dr. Wing Chin, treated him. Dr. Chin believed that in addition to Bergman’s spinal compression fracture, he may also have had lung cancer, a diagnosis that could not be confirmed through a sample of lung tissue.

Although Bergman rated his pain from 7 to 10 on a 10-point scale each day he was in the hospital, Chin treated him with small doses of Demerol and refused to prescribe morphine. Bergman asked to be released to die at home, which he did four days later.

The family chose to sue under the elder abuse act because it, unlike California’s malpractice law, says that a patient’s pain and suffering survives death and can accrue to the estate. The elder abuse law, however, required the Bergmans to prove that Chin’s conduct reached a higher standard of reckless negligence, a standard the jury agreed they met. The jury deadlocked, however, on whether Chin had acted with malice or had intentionally caused emotional distress, so no punitive damages were considered.

Two prior damage awards have been won in undertreatment of pain lawsuits in North and South Carolina, including one involving a nursing home.