In a case watched closely as a harbinger of what can happen when a health care provider undertreats pain, two doctors and two health care facilities reached settlements just before the case was scheduled for trial. The results of the case should get the attention of any risk manager who doubts that poor pain management is a major liability risk.
There were financial settlements with all the parties, says Kathryn Tucker, JD, director of legal affairs with the Compassion in Dying Federation in Seattle, an advocacy group that supported the plaintiff. She says this case should have alarm bells ringing in risk managers’ offices across the country. "There is an awareness in the defense bar and in the minds of the defendants that this is going to be an extremely difficult case to defend in front of a jury, and that jurors are going to be enormously sympathetic to the story of a dying patient who suffered needlessly," she says. "There will be serious consequences legally and financially if you don’t provide good pain management. Historically, there hasn’t been accountability, but clearly that has changed."
The suit was against providers at Concord, CA’s Mt. Diablo Hospital Medical Center, the Bayberry Care Center where the patient was transferred for long-term care, and three physicians. The defendants did not return phone calls seeking comment. The plaintiffs settled for confidential amounts with Mt. Diablo Hospital; Fred Von Steiff, MD, the hospital physician; and Eugene Whitney, the nursing home physician. Mt. Diablo acknowledged that it has implemented continuing medical education (CME) regarding pain and palliative care as a result of the suit. Whitney agreed to take 16 hours in CME in pain and palliative care.
Bayberry Care Center, the nursing home where the man died, paid $80,000 and agreed to provide 16 hours of CME in pain and palliative care to its staff, to be completed by June 30, 2005. "That reflects a significant commitment from that facility, considering its status and its financial situation," Tucker says.
Medical board, payer also take action
Another significant development was that the Medical Board of California filed formal charges against Whitney through the attorney general’s office. A hearing is pending. Also, the state’s Department of Health Services, acting on behalf of the federal Center for Medicare & Medicaid Services (CMS), issued a Class A Notice of Deficiency to Bayberry Care Center, finding numerous violations of code provisions pertaining to pain and symptom management. The Medical Board’s action and the sanctions by the third-party payer up the ante beyond the previous pain management cases.
"The filing of formal charges against Dr. Eugene Whitney by the Medical Board of California reflects a significant and positive change," Tucker says. "The Medical Board’s willingness to take action in an undertreated pain case will hopefully serve as an example to other medical boards considering such complaints. The settlement by all four defendants prior to trial sends the message that abandoning a dying patient carries a great risk."
Similarities to earlier pain case
The case is similar to a case from two years ago in which a California doctor was ordered to pay $1.5 million because he undertreated a dying man’s pain. The hospital’s records proved to be the doctor’s undoing because they showed the man was in terrible pain and that the doctor must have known.
In the current case, an 85-year-old man dying of lung cancer was denied adequate pain management despite his advance directive calling for all possible pain relief and his frequent reports to the nursing staff that his pain was intolerable. The lawsuit filed in the Superior Court of California, County of Contra Costa, was an action for elder abuse because state law does not allow recovery for pain and suffering after the patient dies. The family also alleged intentional infliction of emotional distress, fraud, unfair business practices, and other statutory violations.
The complaint claimed that "from Jan. 18, 2001, through the day of his death on Feb. 12, 2001, Lester Tomlinson’s severe and constant pain was callously ignored, never effectively treated, and allowed to progress by defendants without any intervention which would comply with modern concepts of pain management. "Tomlinson, who had gone to the effort of clearly expressing his wishes to live his last days with maximum control of his pain, nevertheless spent the last month of his life in agony, confusion, and indignity."
Nurses at the hospital and the nursing home assessed Tomlinson’s pain level regularly but then he did not receive adequate medications, the complaint says. While Tomlinson was often unable to rate his pain either because he was hard of hearing or because of confusion, he did rate his pain on many occasions and the pain level was almost always high. He frequently reported pain levels up to 9, and his initial assessment on admission indicated that he frequently experienced pain he rated as 10. The lawsuit alleges he sometimes received no medication or at other times wholly inadequate medication, despite his family members’ pleas for better pain management.
Tucker says the main difference between the earlier pain management case in California and this one is in the depth of accountability. "In Tomlinson, three different complaints were filed — one with the Medical Board of California, one with CMS and the state Department of Health Services, and the tort suit. In each of those complaints, accountability was realized," she says. "In the Bergman case, we had fairly similar facts but the Medical Board declined to take action," Tucker continues. "With Bergman, the defendant was not willing to enter into settlement discussions so the case went to trial and there was as a meaningful verdict against the doctor. In the Tomlinson case, all of the defendants were highly motivated to settle before trial."
California poses bigger hurdle than most
Tucker cautions that risk managers should not assume these pain management cases are a California phenomenon. The successful resolution of these claims in California should be seen as a signal that such actions can be expected across the country, she says. In California, it is particularly difficult to prevail in court action for failure to treat pain in a dying patient, she says. A case alleging pain and suffering for a patient who died cannot be brought as a medical negligence claim because the state has a "no survival" rule for malpractice law. That is why both cases to date were framed as elder abuse, which permits a claim without a survivor.
But an elder abuse claim requires a much greater showing of departure from the standard of care. The plaintiff must show recklessness instead of simple negligence. In most other states, the same set of facts could be used to file a medical negligence claim, which is comparatively easier to prove, Tucker says. "In negligence, you only have to show that the treatment deviated from the standard of care. In recklessness you have to prove a much greater departure from that standard," she says. "Your expert has to go a much greater distance to say this was further out of bounds. So it’s harder to prove these cases in California than it is in any other state. If it can be proved here, it can be proved anywhere."