Pain Management in the Elderly: Undermedication as Elder Abuse

Undermedication as Elder Abuse

Elder abuse laws have seldom been used to make legal strides against pain management problems or neglect of the elderly by hospitals and physicians. Instead, the usual recovery theories are personal injury; negligence; and medical malpractice (when a physician provides substandard care, resulting in harm to the patient).

In one recent landmark case, however, a physician was held liable for elder abuse for undermedicating a terminally ill hospital patient, allowing him to die in extreme pain (Beverly Bergman et al. v. Wing Chin M.D.; attorneys for plaintiff, Clayton Kent of Brayton Purcell and James Geagan). William Bergman, the 85–year old lung cancer patient, stayed at a 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. His pain level was 10 on the day he was voluntarily discharged. Bergman’s family was awarded $1.5 million based on the physician’s reckless conduct and on California’s elder abuse statutes.

The Bergman case serves notice to physicians and other health care professionals that serious attention must be paid to pain management of our senior citizens. Indeed, in the wake of the Bergman case, California enacted a law (Ch. 518, AB 487, Laws 2001) that requires physicians to complete 12 hours of continuing education in pain management and the treatment of the terminally ill. The law also requires the Medical Board of California to develop standards for the investigation of complaints concerning the undertreatment and undermedication of pain.

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• A Jury awarded $1.5 million against a physician for undermedicating a terminally ill elderly patient. This California case, filed by the law firm of Brayton Purcell, inspired the state to require continuing education in pain management for physicians.

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