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Bergman v. Chin, No. H205732-1 (Alameda County Ct., June 13, 2001)
Summary: According to press reports 85 year-old Bergman, suffering from chronic lung disease, spent the last few weeks of his life in acute pain. Notwithstanding consistently high self-assessed pain scores Bergman was not prescribed liquid morphine. The Medical Board of California replied to his family’s complaint that “Our medical consultant did agree with you that pain management for your father was indeed inadequate,” but concluded “there is insufficient evidence at this time to warrant pursuing further action in this case.” Bergman's survivors brought suit against the treating physician and hospital. The hospital settled with the family; that settlement included an agreement by the hospital to provide pain management classes to its staff and doctors.

A medical malpractice claim against the doctor was dismissed before trial. The case against Dr. Chin went to trial and a jury found that him liable for elder abuse and reckless negligence, but rejected claims of malice or intentional infliction of emotional distress that would have supported an award of punitive damages. The jury awarded Bergman's family $1.5 million in compensatory damages.

• The elder abuse action was brought under California's Elder Abuse and Dependent Adult Civil Protection Act. Remedies, CAL. WELF. & INST. CODE § 15657 [HTML], Attorney's fees, § 15657.1 $[Lexis] $[Westlaw]; Laws governing professional negligence causes of action, § 15657.2. $[Lexis] $[Westlaw]
• Subsequently, the trial judge reduced the $1.5 million damage award to $250,000 applying California's $250,000 medical malpractice damage "cap" in CAL. CIV. CODE § 3333.2(b) [HTML] $[Lexis] $[Westlaw], notwithstanding that the case had been characterized as one for elder abuse rather than malpractice. Bergman v. Eden Medical Center, No. H205732-1, (Cal. Super. Ct. Aug. 20, 2001).
• In April of 2002, Judge Robert Hunter of the Superior Court of California for Alameda County issued rulings denying defense motions to set aside the verdict and for a new trial. The court also awarded attorney’s fees to the plaintiffs and applied a 1.5 multiplier to enhance the fee award in light of the importance of the case to the public interest.

Transcript of Beverly Bergman-April 30, 2001
Doctor's Duty to Ease Pain At Issue in Calif. Lawsuit , Washington Post, May 7, 2001; Page A03 [HTML]
Doctor found reckless for not relieving pain, San Francisco Chronicle, June 14, 2001, at A1 [HTML]
CNN.com - Doctor liable for not giving enough pain medicine - June 14, 2001 [HTML]
Press Release, Compassion in Dying [HTML]

Estate of Norris v. Putnam County Sheriff, 2000 U.S. Dist. LEXIS 5102 (March 25, 2002)
Summary: Estate of 74-year-old jail inmate who was not provided pain medication during a fourteen-hour stay in the emergency room of a hospital brought suit against jail officials, the hospital, and hospital personnel under 42 U.S.C. § 1983 claiming a violation of the Eighth Amendment’s ban on cruel and unusual punishment. Norman Norris, who was serving a sentence at the county jail, was taken to a hospital emergency room for “uncontrolled pain, inability to move, and inability to eat.” Upon arrival, he complained to a nurse of pain in his shoulder, chest, and arm. Hospital personnel evaluated Norris and diagnosed him with musculoskeletal pain. They did not order heart monitoring, EKG testing, or a chest X-ray. He was kept in shackles and chains in the holding area for fourteen hours, during which time no record was made of his receiving pain medication or nursing care. The federal district judge denied a motion for summary judgment filed by the hospital, doctors, and nurse with respect to the plaintiff’s claim that defendants ascertained Norris’s need for pain management and may have acted with deliberate indifference in failing to provide him with pain medication during the fourteen hours he spent at the hospital. The judge found that plaintiff’s allegation that the hospital maintained a policy or practice of deliberate indifference toward the medical needs of prisoner patients was sufficient to survive summary judgment. The judge granted the defendants’ motion with respect to the claim that defendants failed to follow medical standards of care by performing inadequate diagnostic procedures. The judge found that, at most, allegations of inadequate cardiac assessment stated a claim of medical malpractice, which is insufficient to make out an Eight Amendment violation.

Freeman v. Cleveland Clinic Found., 713 N.E.2d 33 (Ohio Ct. App. 1998). $[Lexis] $[Westlaw]
Summary: Parent of an orthopedic patient who committed suicide brought wrongful death action against the clinic that employed the decedent’s orthopedic surgeon. The suit alleged that the surgeon negligently failed to refer the patient to a mental health professional or pain management clinic upon concluding that he would not benefit from further physical treatment for the knee problems that were preventing him from playing college basketball. The appellate court affirmed the lower court’s finding that the surgeon did not breach his standard of care; (2) the failure to refer did not proximately cause the patient's death; and (3) the trial court did not abuse its discretion by denying the parent’s motion to amend the complaint or by prohibiting him from deposing the director of the clinic’s orthopedic residency program.

Lloyd v. County of Du Page, 707 N.E.2d 1252 (Ill. App. Ct.). $[Lexis] $[Westlaw]
Summary: Estate of nursing home resident brought wrongful death and survival claims against the county operator, facility and various employees and doctors. The complaint included allegations that the facility “carelessly and negligently failed to respond to and appropriately seek an evaluation and treatment of [the decedent's] complaints of pain.” The Appellate Court held that the complaint was not barred by the state Tort Immunity Act and that most of the subparagraphs in portion of complaint relating to county and nursing home, including that relating to pain management, adequately pleaded sufficient facts to sustain a cause of action.

Estate of Henry James v. Hillhaven Corp., No. 89 CVS 64 (N.C. Super. Ct. Jan. 15, 1991) (unreported)
Summary: In a North Carolina negligence lawsuit, for the first time, a health care provider was held liable for failure to treat pain appropriately. The jury awarded $15 million in damages to the family of Henry James, whose dying days were made intolerable by the decision of a nurse and her employer, a nursing home, to withhold or reduce pain medication ordered by the patient's physician. The lawsuit focused on health care providers' responsibilities to ensure the proper administration of pain medications in appropriate doses.
Nov. 20, 1990: $15 Million Verdict - Nursing Home Negligence - Delaying, Switching Medicine - $7.5 Million Punitives - In re Estate of James v. Hillhaven Corp. (Hertford County) - Plaintiff's Attorneys: Thomas W. Henson and Ronald D. Manasco, Rocky Mount. [HTML] Note: Scroll to end of page to view contents.
“Hillhaven Is Ordered to Pay $15 Million to Ex-Patient’s Estate,” Wall Street Journal, Nov. 26, 1990 $[Westlaw]