Failure to treat pain
When a California jury found an internist guilty of elder abuse and reckless negligence by not providing adequate pain care for an 85-year-old man dying of lung cancer, the decision marked only the third in U.S. history for undertreatment of pain. This particular case was the first against a doctor and the first time a jury had awarded this type of verdict under elder abuse laws, rather than under a conventional medical negligence suit.

The jury, which awarded $1.5 million to the man's family [later reduced by a judge to $250,000], was deadlocked on whether the physician's conduct was malicious and so did not award punitive damages. The family also sued the hospital where the man was treated, which settled before the trial began. As part of that settlement, the hospital agreed to conduct educational programs in pain care for its staff.

The case adds fuel to the American Bar Association's initiative to urge all state legislatures to review their laws and remove any impediments to adequately treating patients for pain. Observers say the case may spark similar lawsuits across the country.

Kathryn Tucker, director of legal affairs for Compassion in Dying Federation, the nonprofit patient advocacy group that helped the family bring the case, and Clayton Kent, who tried the case with Tucker, said the key to their case was using the physician's own testimony against him. The doctor told jurors that he was not aware of most developments related to palliative care and had no knowledge of new guidelines for pain management.

With this as a foundation, the attorneys set out to show the jury that the physician was in fact barraged by information about developments in pain care but ignored that information.

For example, the experts introduced copies of the federal guidelines on cancer pain management published in the1990s and a copy of pain guidelines that were mailed by the California Medical Board to every doctor in the state; the physician testified that he did not remember reading the information.

"Our experts testified that it was his obligation to keep current and he simply didn't bother. This is how we showed that it was not mere negligence but reckless conduct, " Tucker said.

Kent noted, "I don't think we could have won this case 10 years ago, or even a few years ago. It all comes down to timing. Since then, there have been new statutes and all this new literature about pain management. There is starting to be public awareness about it." (White N. Lawyers Weekly USA. August 6, 2001. Available at: http://www.lawyersweekly.com)
http://www.partnersagainstpain.com/html/profed/pmc/pe_pmc4.htm?pg=7453§ion=pe_pmc4