PAIN MEDICINEVolume 5 • Number 2 • 2004

FORENSIC PAIN MEDICINE

The Debate on Elder Abuse for Undertreated Pain

© American Academy of Pain Medicine 1526-2375/04/$15.00/212 212–213

Introduction

This Forensic Pain Medicine section focuses onthe issue of elder abuse charges brought againstphysicians for undertreating pain. To date, therehave been two well-publicized cases, both occur-ring in the East Bay of northern California. Thefirst case involved the Bergman family. Theinvolved physician was found guilty of elder abuseby jury trial with a judgment of $1.5 million forthe plaintiff, but only a single juror vote stood inthe way of also issuing punitive damages the couldhave been far greater. The amount was laterreduced to $250,000. This case directly led to aCalifornia state law that mandated 12 units of con-tinuing medical education (CME) for almost allCalifornia physicians. It also required the MedicalBoard of California to publicly share their policyfor complaints against physicians related to painmanagement issues. The second case involved theTomlinson family and was settled just prior to itscourt date. Shortly after the physician’s case wassettled, the hospital and nursing home settled theircases. The Medical Board of California later sanc-tioned the involved physician, representing onlythe second time that a medical board has sanc-tioned a physician for undertreatment of pain.

Both cases of elder abuse for undertreated painwere supported and advocated for by the Com-passion in Dying Federation (CIDF). The chieflegal counsel for the CIDF is Kathryn Tucker, whopresents her version of the Tomlinson case in thisissue. I note that Ms. Tucker’s presentation has, inpart, previously appeared on the CIDF website. Itis rare that we publish materials that have beenpresented elsewhere. But as an editorial, whichserves as Ms. Tucker’s perspective on the details ofthis important case, her review offers a compellingstarting point for a much needed dialogue on thistopic. Thus, following Ms. Tucker’s comments, wehave invited six commentaries that are intended tospan the wide breadth of responses and concerns.

As the following commentaries suggest,responses to cases of elder abuse related to paincare range from approval to disapproval. On onehand, these cases must offer profound relief thatundertreated pain is being recognized and taken

seriously. The families involved and their advo-cates clearly see this as a triumph for justice andhealth care. On the other hand, when there is awidespread culture that supports and perpetuatesundertreated pain, it may seem that we are makingan unfair example of a few physicians. Since wecan’t, or won’t, fix the broken system that allowsmedical students and residents to go withoutample education about pain, is it appropriate totarget practicing physicians who are direct prod-ucts of the system that needs our attention?However, it might be argued that elder abuse casesare exactly what are needed to get the attention ofphysicians and health care systems. Undoubtedly,these cases have, at the very least, received a greatdeal of attention.

It may be argued that in states such as Califor-nia, where malpractice cases limit damages forpain and suffering after death, the slow wheels ofjustice offer no other remedy for compensatingfamilies of a terminally ill patient other thanavenues such as elder abuse. In other words, if painand suffering cannot be compensated via malprac-tice once an individual has died, then malpracticemay effectively offer absolutely no remedy for painand suffering. If it is true that physicians need anincentive such as fear of litigation to treat pain andsuffering in our dying population, then this is a sadcommentary on how far medicine has wanderedfrom its central mission and how affected we canbe by nonmedical issues that profoundly impactmedical practice.

Law suits that circumvent the traditional path-ways of malpractice claims may help turn the tideagainst the undertreatment of pain, but claims of pure altruism as the basis for such cases mayappear to some as disingenuous. Many states havedealt with balancing the social need for affordablehealth care and skyrocketing malpractice insur-ance rates with the needs of individuals who havesuffered losses due to health care by placing ceil-ings on potential jury awards, particularly for painand suffering. In certain states, patients may standto gain far more from an elder abuse case thanfrom a malpractice case, even if the sufferingpatient is still alive. This will surely translate backto increased health care costs. Moreover, lawyers

Elder Abuse for Undertreated Pain 213

stand to gain substantially from these cases as well.For instance, as Sandra Johnson notes in her com-mentary, the plaintiff attorney in the first elderabuse case for the undertreatment of pain wasrewarded with approximately one half a milliondollars in attorney fees. On one hand, it may beargued that this attorney, who won a hard-pressedlandmark case that was thought to be at least an uphill fight, documented and earned her fees.On the other hand, perhaps such cases will nowpresent an incentive to try to fix a broken systemby targeting individuals rather than addressing thenecessary systemic problems, which is required forlong-term solutions.

Will taking a few undertreating physicians outto the firing squad frighten the rest into bettertreatment of pain? Or will the fear result in subtleparalysis? If these cases perpetuate, will there bean even greater temptation than at present for theaverage physician to simply declare that pain is nottheir thing and hide under the banner of referralto the pain specialist, knowing full well that thereare just too few specialists to manage even thelarge minority of pain problems?

The issue of elder abuse for undertreated painraises many questions. What exactly constitutes anelder? Some have interpreted the law to include asan elder any individual in the sole dependant careof a physician, such as any inpatient. May the legalpremise of elder abuse for undertreated painextend to child abuse or even physical abuse? Andwhat exactly is abuse and where will the clinical

lines be drawn? Is a patient with pain that is notcompletely relieved by several efforts on the partof a physician in a position to claim abuse? Is aphysician who is reluctant to prescribe opioidsbecause of appropriate fear of toxicity at risk forbeing perceived to be a patient abuser? Surely,elder abuse is intended for cases where there isgross negligence and severe departure from stan-dard of care. But how will this be applied to a fieldsuch as pain medicine, where universally agreedupon standards are hard to come by? Or will suchcases set new standards?

The following case and commentaries areoffered as a brief starting point for an ongoingdebate on how appropriate change can come to amedical model that desperately needs change. Thefollowing commentaries are from authoritativethought leaders, including experts in legal issuesin pain management and medicine at large, as wellas the Executive Director of the Medical Board ofCalifornia at the time of the Tomlinson case.Taken together, they offer a clear view of the dis-parate opinions that are stimulated by this issue.No matter how we feel about cases such as the onethat is described in the following editorial, chang-ing to a medical society that truly embraces appro-priate treatment of pain and suffering will not bepainless.

Scott Fishman, MDSection Editor

Forensic Pain Medicine

PAIN MEDICINEVolume 5 • Number 2 • 2004

Medico-Legal Case Report and Commentary: Inadequate PainManagement in the Context of Terminal Cancer. The Case ofLester Tomlinson

Kathryn L. Tucker, JD*

Director of Legal Affairs, Compassion in Dying Federation, Affiliate Professor of Law, University of Washington School ofLaw and Seattle University School of Law, Perkins Coie, Of Counsel, Seattle, Washington

A B S T R A C T

Presented is a review of the pain management provided to an elderly male patient dying of mesothe-lioma in an acute care hospital and, subsequently, in a nursing home. Discussed are the medico-legal aspects of the case, including the patient’s survivors’ efforts to hold the treating physicians,hospital, and nursing home accountable for inadequate pain management through complaints submitted to the state medical board, the state department of health services, and the Center forMedicaid/Medicare Services, and in state court.

Key Words. Pain; Pain Management; Palliative Care; Elder Abuse

© American Academy of Pain Medicine 1526-2375/04/$15.00/214 214–228

Reprint requests to: Kathryn L. Tucker, JD, Director ofLegal Affairs, Compassion in Dying Federation, AffiliateProfessor of Law, University of Washington School of Lawand Seattle University School of Law, Perkins Coie, OfCounsel, 1201 Third Avenue, Suite 4800, Seattle, WA98101-3099. Tel: (206) 367-2134; Fax: (206) 583-8500; E-mail: ktucker@perkinscoie.com.

*Ms. Tucker was co-counsel to Mr. Tomlinson’s survivorsin the case profiled.

Introduction

Lester Tomlinson, 85 years old, was dying frommesothelioma, an invasive, progressive, and

painful terminal cancer of the lining of the lung.Lester suffered significant pain caused by hiscancer. He had made his wishes for aggressive painmanagement known in various ways, including by executing a written advance directive, whichspecifically addressed this aspect of his care.Ginger and Rosa Tomlinson, Lester’s daughterand wife, were present daily during Lester’s lastweeks of life. This article provides an overview ofthe end-of-life care provided to Lester, discussesthe pursuit of accountability by the patient’s sur-vivors of the involved facilities and physicians, andoffers commentary.

Factual Overview of Care Provided in Acute CareHospital and Nursing Home

Acute Care HospitalLester was a patient at M. D. Medical Center(MD), an acute care hospital in northern Califor-nia, between January 18, 2001 and January 23,2001. Dr. V. was Lester’s attending physician atMD. Dr. V. prescribed pain medication that couldonly be given “as needed,” that is, when it came tothe provider’s attention that Lester was already inpain. The nursing staff at MD did not monitor,assess, or respond to Lester’s pain. On January 23,2001, Lester was discharged from MD to a nursinghome, BCC. Dr. V. prescribed no pain medicationon discharge for Lester. Lester suffered severepain during and following his transfer to BCC.

Nursing HomeLester was a resident at BCC from January 23,2001 until his death on February 12, 2001. WhenLester was transferred to BCC from MD, his carewas transferred to BCC’s attending physician, Dr.W. Although Lester had been receiving pain med-ication while in the hospital, pain medication wasnot ordered for him on admission to BCC, or forthe next 3 days. Dr. W. did not visit or examineLester for 17 days. Lester’s family members were

by his bedside daily and frequently informed thestaff that Lester was in unrelieved pain. At times,Lester cried out and asked his daughter to helphim die because the pain was so terrible. Lester’sroommate asked Ginger to bring him earplugs sohe would not hear Lester screaming and moaningin pain all night long.

In response to the family’s requests for painrelief, Dr. W. eventually ordered acetaminophen500mg/hydrocodone 5mg to be provided every 4hours as needed. Lester continued to suffer. WhenGinger, the patient’s daughter, called Dr. W.regarding the need for stronger pain medicine herefused to talk with her. Dr. W. eventually ordereda fentanyl patch (25mcg/h dose); however, duringthe time the transdermal medication was reachingan effective level, Lester continued to suffer. Thenursing staff did not advocate for more pain med-ication for Lester, nor did nurses insist that Dr. W.visit him. Several days later, Ginger urged Dr. W.to order morphine. He ordered morphine in liquidform (10mg) to be given every 6 hours as needed.He also ordered that controlled-release morphine“(MS Contin Oral Solution*) be given 10mg every4 hours as needed.” At no time did Dr. W. call fora consult with a pain or palliative care specialist.

Lester frequently cried out in pain, moaned,and grimaced. Every order for pain medicationwas done in response to family demands. Thepatient’s daughter, Ginger, finally called Dr. M.,Mr. Tomlinson’s oncologist, who intervened andordered stronger pain medication. Lester died 4days after Dr. W’s first visit.

Pursuit of Accountability: Complaints Filed withMedical Board of California, the Center forMedicaid/Medicare Services, the CaliforniaDepartment of Health Services, and Tort Suit

Ginger Tomlinson had heard of the case Bergmanv. Eden Medical Center, a case involving an elderlycancer patient who did not receive adequate painmanagement, that had recently been tried to a juryin Alameda County, California. The jury in thatcase found that the physician had been reckless,entered a finding of elder abuse, and returned averdict of $1.5 million for the patient’s pain andsuffering [1]. After her father’s death, Ginger con-

tacted the patient advocacy group that had assistedthe Bergman family, the Compassion in DyingFederation (CIDF), to explore what could be doneto ensure that no other patient or family sufferedneedlessly.

CIDF’s Director of Clinical Case Management,an experienced hospice nurse, interviewed Gingerand reviewed Lester’s medical records from MDand BCC. The Case Manager concluded that therehad been serious failings in the pain managementprovided to Lester. CIDF’s Director of LegalAffairs recommended that complaints be filed withthe Medical Board of California (MBC) regardingDr. W. and with the Center for Medicaid/MedicareServices (CMS, formerly Health Care FinancingAgency [HCFA]) as well as the state counterpartagency, the California Department of Health Ser-vices (DHS), regarding BCC. The complaints tothese agencies were submitted accompanied by awritten expert opinion obtained by CIDF from anexperienced palliative care physician.

In addition, CIDF’s Director of Legal Affairsrecommended that a tort suit be filed against Dr.V., MD, Dr. W., and BCC in California state court,alleging that the failure to treat Lester’s terminalcancer pain adequately constituted elder abuse. Acomplaint was filed in Contra Costa County onJanuary 15, 2002 [2]. It is important to note that, in California, pain and suffering damages do notsurvive the death of the patient under the state’smedical negligence laws, thus there would be nodamages recoverable for Mr. Tomlinson’s pain andsuffering under a medical negligence claim in California. The plaintiffs’ counsel thus opted to litigate the claim under the elder abuse statute, whichpermits survival of an elder’s pain and sufferingclaim. This strategy, however, presented the addi-tional significant burden of needing to establishthat the defendants’ conduct in failing to treat thepatient’s pain constituted recklessness, rather thansimply negligence. A greater degree of departurefrom standard of care must be shown to prevail ina claim that a defendant physician was reckless thanwould be required to prevail in a claim of negli-gence. Plaintiffs establish that defendants havebeen reckless, rather than simply negligent, byshowing that they were practicing in an environ-ment rich with information about the defendants’duties and responsibilities to treat pain aggressivelyand attentively. In states where a patient’s pain andsuffering prior to death due to medical negligencesurvives and accrues to the estate, a claim for failureto treat pain adequately could be more easily liti-gated as a medical negligence claim.

Elder Abuse for Undertreated Pain 215

*As noted in the Medical Board Accusation at paragraph 9,“MS Contin is a trade name for morphine sulfate con-trolled release tablets. It does not come in a solutionform . . . MS Contin is dosed on a regular schedule, not onan as needed basis.” This order, thus, reflects on Dr. W’signorance of prescribing properly to manage pain.

Resolution of the MBC ComplaintIn response to the complaint submitted to theMBC regarding Dr. W., the MBC filed formalcharges through the Attorney General’s office [3].On December 15, 2003, a decision adopting aStipulation for Public Reprimand was entered inthis matter, specifying that Dr. W. was to receivea Public Reprimand, must undergo an assessmentof knowledge and skills, must complete aminimum of 40 hours of CME in the area of defi-ciency, and must complete a physician/patientcommunication course [4].

Resolution of the CMS/DHS ComplaintThe California DHS issued a Class A Notice ofDeficiency to BCC, finding numerous violationsof code provisions pertaining to pain and symptommanagement and ordered extensive correctiveaction [5].

Resolution of the Tort SuitAfter extensive discovery and multiple motions,the tort case was scheduled to be tried to a jury inApril 2003. Settlement was reached with all fourdefendants prior to the start of the trial. Settle-ment with the hospital physician, Dr. V., wasreached in December 2002. The terms of that settlement are confidential.

Soon after the settlement with the hospitalphysician was reached, settlement was reachedwith MD, which acknowledged that it had imple-mented pain and palliative care training as a resultof the suit. The financial aspect of the settlementis confidential. Dr. W., the nursing home physi-cian, settled by agreeing to take 16 hours of CMEin pain/palliative care in 2003. The financial aspectof the settlement is confidential. BCC settled last,agreeing to pay $80,000 and to provide 16 hoursof CME in pain/palliative care education to itsstaff, to be completed by June 30, 2005. Mediacoverage of the Tomlinson case was strongly sym-pathetic to the plaintiffs [6].

Commentary

Acute Care Hospital Care and DischargeNeither Dr. V. nor the nurses at MD performedconsistent, appropriate, and necessary assessmentsof Lester’s pain. Nor did they initiate a pain man-agement program that would relieve his pain. Dr. V.’s order for pain medication was written “asneeded,” meaning that Lester Tomlinson had todescend into pain and then ask for relief every timehe needed pain medication. This virtually guaran-

teed that Lester would suffer significant pain whilehospitalized. There is consensus throughout themedical community that pain medication for ter-minal cancer patients should be provided aroundthe clock, with additional medication available tomanage breakthrough pain. With regard to Lester’sdischarge, Dr. V. knew of the plan to dischargeLester and had a duty to prescribe appropriate discharge medication, including pain medication.He failed to fulfill this duty. This caused a periodof unnecessary suffering, a problem compoundedfollowing admission to BCC, when the physicianand staff that assumed his care at that facility failedto promptly provide pain medication.

Care at BCCThe failure to provide any pain medication for 3 days following admission is inexcusable in thiscase. An immediate pain assessment should havebeen done upon admission. A pain managementplan should have been immediately put into placeto get the patient’s pain controlled. An appropri-ate pain management plan for a terminally illcancer patient should include around-the-clockadministration of opioid analgesics in doses suffi-cient to achieve good pain relief. Determination of an adequate dose should be made based uponcareful assessments, with the dosage titratedupward until relief is attained. Additional medica-tion should have been made available for break-through pain. Regular assessments of pain shouldhave been initiated to ensure that the patient’s painwas kept under control. Management of the painof a terminal cancer patient is addressed in manyauthoritative clinical practice guidelines; referenceto any one of these would have informed theproviders regarding appropriate care for thispatient.

Dr. W.’s pain medication orders reflect that hedid not know which medications would be appro-priate to treat Lester. This is revealed both by his order for liquid morphine to be given every 6 hours (instead of every hour as would be usual)and his order for controlled-release morphine tobe given every 4 hours as needed (a long-actingmedication typically given every 12 hours). Dr. W.should have called a pain consult with a pain orpalliative care specialist if he did not have the necessary training and skills to provide adequateand appropriate pain care.

There can be little doubt that with proper paincare Lester Tomlinson would not have suffered sohorribly and that his final days could have beenspent in comfort, surrounded by his family, saying

216 Fishman et al.

Elder Abuse for Undertreated Pain 217

goodbye in peace and dignity. He was robbed ofthis opportunity because he was left in such terri-ble pain that he could think of nothing else. Whathappened to Lester Tomlinson should not havehappened. The health care providers involved incaring for him as he approached death were eitherignorant of appropriate, modern pain medicationsand principles of pain treatment or callously indif-ferent to Lester’s terrible suffering.

At the time that Lester Tomlinson was dying,all California physicians and medical facilities had ample notice of their obligations, duties, and responsibilities to treat pain attentively andaggressively, and should have been fully aware thatterminally ill patients experiencing pain have theright to receive pain medication to relieve thatpain [7]. Lester’s caregivers were either ignorantof all this information regarding the patient’s rightand the providers’ corresponding duties or wereaware of the patient’s right and their correspon-ding duties but chose to ignore them.

Resolution of the MBC ActionThe filing of charges against Dr. W. by the MBCand the ultimate entry of a Stipulation for PublicReprimand, which compels the physician todevote significant time to education in pain management, palliative care, and communication,reflect a significant change in how the MBC per-ceives and handles complaints involving the failureto adequately treat pain. The MBC is now accept-ing its responsibility to correct physicians who fail to employ modern practices and principles ofpain management. This MBC’s willingness to takeaction in an undertreated pain case will hopefullyserve as an example to other medical boards con-sidering such complaints [8].

Issuance of the California DHS CitationThe issuance of a Notice of Deficiency by the Cal-ifornia DHS reflects a willingness by that agency,and the federal counterpart agency, CMS, to sanc-tion facilities that fail to provide adequate painmanagement. This is a powerful corrective tool.

Tort SettlementsThe settlement by all four defendants of the tortsuit prior to the start of a trial reflects awareness inthe defense bar, and among health care providers,that a case involving failure to adequately treat thepain of a dying patient carries great risk and expo-sure for defendants. This is so even when the statewhere the suit is filed requires that a plaintiff showreckless, as opposed to merely negligent, conduct.

This case, like the Bergman v. Eden Medical Centercase before it, vividly illustrates that cases of inad-equate pain treatment can result in significantexposure to tort claims, with significant financialimplications [9]. This is appropriate becauseknowledge of how to treat pain is available. Theproblem is that, without outside motivation, physi-cians fail to acquire and apply the available knowl-edge. Physicians must be motivated to acquire andapply this available knowledge [10].

Notes

1. Bergman v. Eden Medical Center, No. H205732-1, Superior Court, Alameda County, CA. TheBergman case received wide coverage in the local,regional, specialty, and national press. See, forexample: Albert T. Doctor guilty of elder abuse forunder-treating pain. American Medical News, July23, 2001; Crane M. Now you may be liable forunder-treating pain. Medical Economics, Septem-ber 2001; Cutler J. Jury decides under-treatment ofpain was elder abuse, sets $1.5 million damages.Bureau of National Affairs, Inc., vol. 9, n. 25, June29, 2001; Porter R. Failure to treat pain is elderabuse jury finds. Trial, The Journal of the Associa-tion of Trial Lawyers of America, September 2001;Shapiro DW. Inadequate treatment of pain. Pro-fessional Liability Newsletter, May/June 2001;Troy T. New type of suit: Pain treatment. TheNational Law Journal, July 2, 2001.

2. Rosa Tomlinson et al. v. BCC et al., Contra CostaCounty Superior Court, No. C-02-00120.

3. In the matter of the accusation against: Eugene B.Whitney, MD, Case No. 12 2002 133376, filedMarch 13, 2003.

4. In the matter of the accusation against: Eugene B.Whitney, MD, Case No. 12 2002 133376, Decision(December 15, 2003).

5. Letter to Ginger Tomlinson dated April 15, 2003,re complaint no. 14-0017012.

6. Doctor accused of poor treatment. Tri-ValleyHerald, March 20, 2003; Suit filed over pain treat-ment of ill man. Contra Costa Times, March 28,2003.

7. This notice was provided by the MBC, laws enactedby the California legislature, decisions of the U.S.Supreme Court, and a veritable flood of articlespublished in leading medical journals over the pastdecade.

8. Tucker KL. Medical board corrective action withphysicians who fail to provide adequate pain care.J Med Licensure Discipline 2001;87:130–1.

9. Estate of Henry James v. Hillhaven Corp., Super.Ct. Div. 89CVS64, Hertford County, NC (1990).

10. Rich B. A prescription for the pain: The emergingstandard of care for pain management. 26 WilliamMitchell Law Rev 2000;26:1.

Commentary: David B. Brushwood, RPh, JD

The system “sets up” doctors to fail in their pro-vision of adequate pain relief to their patients.Holding doctors liable for their failures, based onelder abuse or medical negligence, is unfair andineffective. Threatening doctors with legal liabil-ity will not improve the quality of pain manage-ment in America.

The system works this way:

• Doctors are taught virtually nothing about pain management in medical school. This wasabsolutely true in the past and is a qualifiedtruth for the present. Despite considerablebrave talk and several noteworthy exceptions,the future of comprehensive pain managementeducation appears grim unless a significantcommitment to change is made.

• Residency training adds little knowledge or skillto a doctor’s pain management resumé. Thestandard advice is to “start low” (so low there islittle or no analgesia) and “go slow” (so slowthere never will be analgesia).

• Most pain management CME is unproductive.It is mostly about “telling,” a bit about“showing,” but rarely is there any “doing.”Anyone who can sit still for a few hours and foga mirror at the end receives credit for success-ful completion.

• New rules from various agencies arrogantlymandate greater attention to pain management,but the agencies do no advocacy with insurancecompanies that refuse payment for adequatepain management, and they do not addressstaffing shortages that often make it impossibleto do pain management well.

• Many patients (and their families) fear “nar-cotics,” because they have been told that onlyweak-willed people use them and that there isan inevitable free-fall down the slippery slopefrom the issuance of one hydrocodone/aceta-minophen prescription to hopeless drug abuseand addiction.

• Regulators adopt guidelines that they hope willbe a “safe harbor” for legitimate pain medicine,shielded from irrational regulatory oversight,but these guidelines have the opposite effect.They are useless in clinical practice, but price-less as a list of “gotchas” when regulators targetheavy opioid prescribers.

• Law enforcement personnel who detect diver-sion problems in a doctor’s practice rarelyconsult early on. Instead they conduct discreetsurveillance, waiting for a small problem to

become a large one. Then they swoop in withswat teams and attendant media coverage. Theyovercharge doctors with crimes that were notcommitted, and they dismiss the charges yearslater with no apology.

• So-called “expert witnesses” gladly accept hun-dreds of dollars per hour to second-guess theircolleagues’ clinical judgments, helping thepolice build an irrelevant records case againstother doctors, by finding fault with the drugstheir colleagues prescribed, the doses they used,and the frequency of their prescribing.

Within such a system, it is no wonder that somedoctors adopt covert or overt policies against theuse of opioids for pain. It is tragic and shamefulfor this to happen, but it is understandable. Thedoctors have been set up to fail by the flawedsystem.

Threatening doctors with legal liability forunderprescribing pain medications will not fix theunderlying systemic problems. But the simplicityof threatening legal liability has tremendousappeal—just like threatening to spank a child who brings home an unsatisfactory report card.Perhaps threatening liability feels good over theshort term, perhaps it looks good to those whovalue form over substance, but no good is beingdone for pain management.

The threat of liability for undertreating painwill not produce a rational, consistent, caringresponse from doctors. There are too many othervariables affecting the quality of pain manage-ment. In fact, the inconsistency of tort liability will make things worse. Because tort standards aredeveloped on a case-by-case basis through polar-ized advocacy, rather than negotiated deliberation,doctors will be forced to guess what the tort stan-dard might become and then adopt practices thatthey hope will hit this moving target. The purposeof tort liability is to compensate victims, not estab-lish comprehensive public health policy.

No good will come to the pain managementmovement from expansions in liability for under-treating pain. The plaintiffs’ lawyers can’t solvethis problem. Blaming a single doctor for theproblems of an entire system is unjust and inef-fective. We are all to blame when a patient’s painis undertreated. We must all work harder to solvethis terrible problem.

What must we do?

• Develop interdisciplinary, comprehensive painmanagement education. Students in medicine,nursing, pharmacy, and dentistry must learn

218 Fishman et al.

together their mutual responsibilities for painmanagement and steps to take in diversion prevention. Every case study used in basic education should incorporate a relevant painmanagement component.

• Implement mini-residencies for law enforce-ment personnel to teach them that pain man-agement is not about drugs, it is about peoplewho suffer and who seek caring, respectfulmedical treatment so they can simply go abouttheir activities of daily living.

• Require skills demonstration as a condition ofCME participation. All doctors should be ableto assess pain, select an appropriate treatment—pharmaceutical or nonpharmaceutical—titrateto effect without adverse effects, convert fromone drug to another, manage adverse effects,and prevent drug diversion.

• Help the media understand that there is an epi-demic of untreated and undertreated pain. Showthem how to teach the public that pain can bemanaged without a significant risk of addiction.The “hillbilly heroin” story is old news.

• Cooperate with law enforcement in an “earlyconsult” when a doctor is suspected of beingduped into inappropriate prescribing. Thisshould be a fair but firm colleague-to-colleagueexplanation of the dangers of drug diversion,the methods to prevent it while continuing tomeet the needs of patients, and the conse-quences of failing to be vigilant.

• Make a clear distinction between criminal mis-conduct outside the practice of medicine andmalpractice within medicine. Stop testifyingthat colleagues have occasionally failed to usethe best professional judgment and thereforeshould be found guilty of a crime. Nobody isconsistently at their best and it is not a crime tobe adequate but less than the best.

Everyone who practices any health care profes-sion is responsible for meeting the standard ofcare. When there is a bad outcome from care,health care professionals should be held account-able. If the accounting is inadequate, then theyshould be held liable. Corrective justice requiresthat one who is at fault for harm caused to anotherprovides compensation to the harmed party.Those who provide medical services and productsto patients in pain should be held to the relevantstandard. But a finding of individual liability doesnothing to promote comprehensive improvementsin the quality of care. It is not even a step in theright direction. This is a difficult problem that

defies simple solutions. The small number of set-tlements and judgments of liability for under-treating pain over the past several years areoutliers. They do not constitute even the hint of alegal trend, and they should not be used to coercedesired behavior from those responsible for pro-viding services and products to patients.

For decades, doctors, nurses, and pharmacistshave been frightened into doing the wrong thing.They cannot now be frightened into doing theright thing. If you put a frightened doctor, nurse,or pharmacist into a dysfunctional system, thesystem will win every time. What is needed is systemic change, not frightening threats of legalliability.

David B. Brushwood, RPh, JDProfessor of Pharmacy Health Care Administration

The University of Florida College of PharmacyGainesville, Florida

E-mail: brushwood@cop.ufl.edu

Commentary: Sandra H. Johnson, JD, LLM

Prior to the Bergman and Tomlinson casesdescribed in this note, research on legal risks inpain management consistently and uniformly con-cluded that legal risk for neglect of pain was nearlynonexistent [1]. Medical disciplinary actions werebrought against physicians who treated patientsfor pain with controlled substances, but none had been brought against physicians who allowedpatients to suffer through neglect or ignorance[2,3]. Physicians had been sued by patients formalpractice for their use of controlled substancesin treating pain, with patients claiming that theyhad become addicted or had injured someonewhile under the influence of drugs, but only oneknown case had been successfully brought againsta health care provider for negligence in failing totreat pain [4]. Federal activity, primarily throughthe U.S. Drug Enforcement Administration(DEA), because of the scope of their jurisdictionand the authorizing statute, has focused on physi-cians prescribing controlled substances, but not onphysicians who fail to do so.

Advocates have made significant efforts toassure that medical disciplinary actions againstphysicians for their prescribing practices now useappropriate standards to evaluate those practices[5]. There has been some success in changingmedical board policies and practices through thedevelopment and adoption of guidelines for theboards [6–8]. A few medical boards, including

Elder Abuse for Undertreated Pain 219

California’s, have taken action to discipline doctorswho have breached medical standards in caring fortheir patients in pain, although such actions arestill rare for several reasons [8]. Legislatures, withCalifornia in the lead, have enacted statutes toprotect physicians from inappropriate disciplinaryaction; to encourage effective treatment ofpatients in pain; and to ensure that physiciansreceive appropriate training [1]. The DEA and theleading associations involved in the treatment ofpatients in pain joined forces to issue a statementrecognizing that effective pain management was a critical public issue [9,10].

These approaches have all focused on rightingthe course of regulatory efforts focused on drugcontrol to make sure that they recognize theadverse impact such efforts can have on the qualityof medicine. They have been successful on manyfronts, but not entirely so. Cases of inappropriatearrests, prosecutions, and disciplinary sanctionsstill seem to occur, although there is evidence ofimprovement.

Another approach to addressing the imbalanceof legal sanctions that may encourage physiciansto neglect patients in pain is to enforce medicalstandards for pain treatment through private liti-gation against individual doctors by patients whohave been injured by substandard care [11]. TheBergman and Tomlinson cases represent this strat-egy. Such litigation does something that no otherlegal remedy can do: it provides compensation tovictims. It also clearly establishes a legally enforce-able duty to the individual patient to treat pain inaccordance with professional medical standards.As the author of the case commentary notes, liti-gation can also attract media attention to theproblem of neglect in a way that policy statementscan never do.

Advocates for patients in pain can use such lit-igation to right the wrong done to the individualand to send a message that pain treatment is legallyrequired. One response to the threat of litigation,however, is that it doesn’t simply level the playingfield by equalizing risks so that doctors can prac-tice good medicine. Rather, it creates an environ-ment in which the doctor believes that “you’redamned if you do and damned if you don’t.”Unfortunately, malpractice and negligence can beunpredictable, with many, many injured patientsfailing to file suits against seriously negligentphysicians and some suits filed without a firmfoundation in medical standards.

Neither Bergman nor Tomlinson are cases of“damned if you do, and damned if you don’t.”

These cases fell squarely within the most well-established legal and policy “safe harbors” for themost aggressive pain treatment. Aggressive treat-ment of patients in severe pain from cancer is not controversial legally or as a matter of policy.The use of controlled substances for the relief ofcancer pain has long been established, althoughmany of us still have memories of older familymembers who screamed in pain from cancer andwho had to wait for the next dose out of fear thatthese patients would become addicted. Medicalboards have recognized for years now that aggres-sive treatment for cancer pain does not raise issuesfor disciplinary action [12]. Most especially forcancer patients in the final stages of a terminalform of the disease, there is absolutely no concernover addiction or diversion, for example. In addi-tion, improving palliative care for the dying,including relief of pain, has been a national policypriority for nearly a decade [13,14]. There is broadand deep agreement that pain management is acore medical and ethical duty for the dying patient.

On the legal side of the ledger, these two law-suits faced significant obstacles as well. The legalbasis for these cases and for others like them liesin state law, and, by definition, state law is partic-ular to each state with wide variations between one state and another. Nevertheless, some generalobservations are possible. Damages for “pain andsuffering,” which the legal system terms “noneco-nomic damages,” are not favored in law. The com-mentary on the Tomlinson case notes specificallythat claims for pain and suffering are extinguishedupon the death of the patient in California, as istrue in other states as well. Furthermore, manystates cap or limit the amounts that can be awardedfor noneconomic damages in the range of$250,000 or so. The effect of this limitation initself is to make litigation in which noneconomicdamages are key, such as these cases, unattractive,if not impossible, to bring because the recovery is not likely to cover the costs of the lawsuits. Infact, the Bergman and Tomlinson lawsuits werebrought under California’s elder abuse statuterather than as a mere question of negligence ormalpractice. Although, the elder abuse statuterequires proof that the provider was reckless,rather than merely negligent, it also provides forattorneys’ fees and multiplying of damages.Reports of the Bergman case note that the trialjudge reduced the jury’s verdict to $250,000 butawarded the plaintiff’s attorneys over $500,000[15]. Of course, such a statute is not available topatients generally.

220 Fishman et al.

Beyond the question of damages, cases outsidethe paradigmatic Bergman and Tomlinson caseswould be much more difficult to prove. NeitherMr. Bergman nor Mr. Tomlinson appeared to haverequired a highly sophisticated level of pain man-agement, and so the suits did not face the prob-lems of establishing medical standards and thecause of the patient’s pain. Suits in other pain man-agement contexts will face serious problems onthose counts. The location of the treatment is alsorelevant. In each of these cases, the patient wasresident in a health care facility, which placed himunder the full control of the institution. There canbe no argument about patient noncompliance.Nor did the patient or family have full freedom toinvolve other physicians. From the descriptionprovided in the commentary, it would appear thatdeficient administration or management by thefacility could be argued, making the case mucheasier to prove than one that relied solely on defi-ciencies in medical judgment [16].

The physicians and health care facilities in theBergman and Tomlinson cases had no realistic fearthat they would be damned if they treated thesepatients, even very aggressively, for pain. Norshould these cases be taken as heralds of an ava-lanche of cases to come. They were extreme situ-ations and engendered an extreme response fromthe jury in the Bergman case and from the mediain the Tomlinson case. That is not to say thatphysicians and health care facilities should ignoretheir duties to make every effort to treat paineffectively [17], nor should they feel immune fromaccountability through private litigation or publicregulation for neglect.

References

1 Johnson SH. Providing relief to those in pain: A ret-rospective on the scholarship and impact of theMayday Project. J Law Med Ethics 2003;31:15–20.

2 Hyman CS. Pain management and disciplinaryaction: how medical boards can remove barriers toeffective treatment. J Law Med Ethics 1996;24:338–43.

3 Martino AM. In search of a new ethic for treatingpatients with chronic pain: What can medicalboards do? J Law Med Ethics 1998;26:332–49.

4 Shapiro RS. Health care providers’ liability expo-sure for inappropriate pain management. J LawMed Ethics 1996;24:360–4.

5 Joranson DE, Gilson AM. Improving pain man-agement through policy making and education formedical regulators. J Law Med Ethics 1996;24:344–7.

6 Federation of State Medical Boards of the UnitedStates, Inc. Model guidelines for the use of controlled substances for the treatment of pain.Euless, TX: Federation of State Medical Boards of the United States, Inc; 1998. Available athttp://www.fsmb.org.

7 Gilson AM, Joranson DE, Maurer MA. Improvingstate medical board policies: influence of a model. J Law Med Ethics 2003;31:119–29.

8 Hoffmann DE, Tarzian AJ. Achieving the rightbalance in oversight of physician opioid prescribingfor pain: the role of state medical boards. J Law MedEthics 2003;31:21–40.

9 Promoting pain relief and preventing abuse of painmedications: A critical balancing act. A joint state-ment from 21 health organizations and the DrugEnforcement Administration; October 23, 2001.Available at http://www.aslme.org/news/press_conference/consensus.pdf.

10 DEA to join pain advocates in issuing statement on prescription pain medications: Collaborationprompted by heightened attention to abuse of painrelievers such as OxyContin. DEA news release,October 23, 2001. Available at http://www.usdoj.gov/dea/pubs/pressrel/pr102301.html

11 Furrow BR. Pain management and provider liabil-ity: no more excuses. J Law Med Ethics 2001;29:28–51.

12 Joranson DE, Gilson AM, Dahl JL, Haddox JD.Pain management, controlled substances, and statemedical board policy: a decade of change. J PainSymptom Manage 2002;23:138–47.

13 Agency for Health Care Policy and Research. Man-agement of cancer pain: Clinical practice guidelines;1994.

14 Justice Breyer. Concurring opinion, Washington v.Glucksberg, 117 S.Ct. 2258 (1997).

15 Judge awards $900,000 against doctor accused ofelder abuse. BNA Health Law Reporter 2002;11:877.

16 For a discussion of particular cases and legal theo-ries, see Pain and the Law website. AmericanSociety of Law, Medicine & Ethics. Available athttp://www.painandthelaw.org. Accessed February19, 2004.

17 Rich B. Prescription for the pain: Emerging stan-dard of care for pain management. William MitchellLaw Rev 2000;26:1.

Sandra H. Johnson, JD, LLMTenet Chair in Health Law and Ethics

Professor of Law, Professor of Law in Internal Medicine, and Professor of Health Care Ethics

Saint Louis UniversityDirector of the Mayday Project at the Amer-

ican Society of Law, Medicine and EthicsSt. Louis, Missouri

E-mail: johnsosh@slu.edu

Elder Abuse for Undertreated Pain 221

Commentary: David E. Joranson, MSSW

Therapeutic Litigation?

“Principles of quality medical practice dictate thatcitizens of California who suffer from pain shouldbe able to obtain the relief that is currently available.The Board believes that the appropriate applicationof current knowledge and treatments would greatlyimprove the quality of life for many California citi-zens, and could also reduce the morbidity and thecosts that are associated with uncontrolled pain.”

—Medical Board of California Policy Statement, 1994 [1]

With this policy language, the Medical Board ofCalifornia (MBC) communicated to all Californiaphysicians its vision about the important role painmanagement should play in their medical prac-tices. That vision was and continues to be com-pletely consistent with the consensus of nationaland international medical and regulatory authori-ties that the application of existing knowledge andtreatments could relieve most, if not all, pain dueto cancer [2–4]. The question here is what roleshould litigation of the type in the Tomlinson caseplay in correcting the pain problem?

Notwithstanding the MBC policy statement,why did the California physician in the Tomlinsoncase not provide adequate opioid treatment for a terminally ill cancer patient with severe pain?Despite numerous efforts by the MBC and otherorganizations to communicate the MBC policystatement to physicians, only 39% of Californiaphysicians said they remembered reading thestatement 1 year after it had been mailed to themfor the third time [5].

That some physicians were unaware of theMBC policy statement is but one of many factorsthat impedes the process of putting knowledgeinto practice. There is a cascade of steps thatshould seamlessly connect what is known aboutpain to physician knowledge, to institutional,financial, and regulatory policies, and ultimately to medical practices and patient care. There aremany gaps and blocks in this cascade that con-tribute to the pain problem, such as the lack of sys-tematic professional training in pain management,the embarrassing lack of health insurance formany, shrinking physician appointment times, historical misinformation about opioids and addiction, and fears of investigation for prescrib-ing opioids.

Increasingly, numerous initiatives have beenput into place to close gaps and remove blocks inthe health care system, for example, in profes-sional training, postgraduate education, facilityaccreditation, and federal and state regulatory

policies and their enforcement. However, manyphysicians in practice today were trained beforethese pain initiatives began. Notably, the physicianwho cared for Mr. Tomlinson in the nursing homegraduated from medical school in 1955. Many newphysicians have now received training, but manyhave fallen through the big cracks that remain inthe system. Some physicians may be reluctant toprescribe opioids because they believe what theywere taught about pain and opioids years ago.Others, despite training in pain physiology andopioid pharmacology, may fear loss of theirlicenses and careers. And there are those whoappear not to care about pain management andprovide substandard care to their patients.

In the Tomlinson case [6], it is important tonote that the MBC did reprimand the physicianand require remedial education and training. Allstate professional licensing boards should considera pattern of inadequate treatment of pain to besubstandard care. In 1997, only 11% of medicalboard members said their board had investigateda physician for inadequate treatment of pain [7];more recently, 42% of medical board staff (i.e.,executive directors, investigators, legal advisors,other staff ) responding to a national surveythought their board had conducted an investiga-tion related to pain undertreatment [8]. Medicalboards in two states, Oregon [9] and California(this case), have taken disciplinary action against a physician that included remedial education.Medical boards have made good progress inadopting and communicating guidelines aboutpain management; yet only 51% of medical boardshave policies that specifically encourage pain management [10].

The purpose of the Tomlinson litigation, aswith torts generally, was to redress the wrong ofinadequate pain relief and obtain compensatorydamages for the survivors. The question is, can litigation of this type have a more general and positive effect on the pain problem as outlined,including physician practices or institutional poli-cies? Can litigation make the medical communitymore cognizant of the importance of pain man-agement, and would this lead to action? Forexample, has the Hillhaven case [11] against aNorth Carolina nursing home for failure toprovide adequate pain relief made a difference innursing home practices?

Could such litigation have a negative effect?How do physicians perceive the risks of litigation?Might it generate fears that physicians could beprosecuted at both ends of the spectrum, for exces-

222 Fishman et al.

sive prescribing and also for inadequate care? Isthe policy “box” that describes acceptable pre-scribing practices getting smaller? Should the crit-ically important outlines of this box be influencedby fear, or drawn firmly according to patientneeds, quality medicine, and compassion? Theseare important questions for additional analysis andresearch.

Tremendous strides have been made in painmanagement and in palliative and end-of-life carein the United States, but frustration with theslowness of change and particular policy objectivesmay prompt legal approaches in the courts and in the Congress and state legislatures. Legislationcan help, sometimes, but also has some drawbacks:elected officials are more likely to adopt noble language than authorize funding for education orservices research programs. This type of toothlesslegislation is often justified as a “step in the rightdirection” and contributes little to the major effortthat is still needed to close the gap between whatis known and what is practiced in pain manage-ment and palliative care.

The primary intervention to improve pain man-agement should continue to be education, train-ing, and applied research that is aimed at closingthe gaps, that is, at improving patient access toquality medical practices and developing a sup-portive framework of medical, economic, institu-tional, and regulatory policies. The right responseto substandard practice is peer review, remedialeducation, and discipline. Whether there is a rolefor “therapeutic litigation” remains to be seen.

References

1 Medical Board of California. A statement by themedical board: Prescribing controlled substancesfor pain. Medical Board of California Action Report1994;50:4–5.

2 Jacox A, Carr DB, Payne R, et al. Management ofcancer pain. Clinical practice guideline number 9,AHCPR No. 94-0592. Rockville, MD: Agency forHealth Care Policy and Research, U.S. Dept ofHealth and Human Services, Public Health Service;1994.

3 Federation of State Medical Boards of the UnitedStates, Inc. Model guidelines for the use of controlled substances for the treatment of pain.Euless, TX: Federation of State Medical Boards of the United States, Inc; 1998. Available athttp://www.fsmb.org.

4 World Health Organization. Cancer pain relief.Geneva, Switzerland: World Health Organization;1986.

5 Potter M, Schafer S, Gonzalez-Mendez E, GjeltemaK, Lopez A, Wu J, Pedrin R, Cozen M, Wilson R,Thom D, Croughan-Minihane M. Opioids forchronic nonmalignant pain. Attitudes and practicesof primary care physicians in the UCSF/StanfordCollaborative Research Network. University ofCalifornia, San Francisco. J Fam Pract 2001;50:145–51.

6 In the matter of the accusation against: Eugene B.Whitney, MD, Case No. 12 2002 133376, Deci-sion—December 15, 2003.

7 Pain & Policy Studies Group. Raw data fromnational survey of state medical board members.Madison, WI: Pain & Policy Studies Group; 1997.

8 Hoffmann DE, Tarzian AJ. Achieving the rightbalance in oversight of physician opioid prescribingfor pain: The role of state medical boards. J LawMed Ethics 2003;31:21–40.

9 Barnett EH. Case marks big shift in pain policy. TheOregonian. September 2, 1999:A1.

10 Pain & Policy Studies Group. Matrix of state painpolicies: Full-text database. Pain & Policy StudiesGroup; 2004. Available at http://www.medsch.wisc.edu/painpolicy/matrix.htm.

11 Estate of Henry James v. Hillhaven Corp., Super.Ct. Div. 89CVS64, Hertford County, NC (1990).

David E. Joranson, MSSWSenior Scientist, Director

Pain & Policy Studies GroupUniversity of Wisconsin Comprehensive Cancer Center

World Health Organization CollaboratingCenter for Policy and Communications in Cancer

Care Madison, WisconsinE-mail: joranson@wisc.edu

Commentary: Ron Joseph

In the foregoing commentary, Kathryn Tuckerdoes a good job of using a single case study topresent an issue that is gaining a growing aware-ness among medical regulators. That issue iswhen, and in what circumstance, might a physi-cian’s failure to adequately treat a patient’s painrise to the level of negligence or incompetence? Inreading the article, one is struck by the dual natureof the problem that is presented: one being thelevel of knowledge and sensitivity of the healthcare providers involved, the other being moreintractable, that is, the quality of the health caredelivery system upon which adequate treatment isdependent.

Concerning the former, the author presents aset of facts that raise the question of whether

Elder Abuse for Undertreated Pain 223

medical staff were meeting their responsibilities toprovide competent care to Mr. Tomlinson. In sucha case, the purpose of the medical regulator’sinvestigation is to assure adherence to a commu-nity standard of practice. In a perfect world, theregulator would judge professional performanceagainst a standard that reflects the absolute latestknowledge and skills in the subject area of prac-tice. In such a world, the standard would be well established, science based, and universallyaccepted. In reality, such precision is the exceptionrather than the rule, and in evolving areas of technology and practice, such as pain managementand end-of-life care, the community standard canbe frustratingly difficult to apply to anyone’s satis-faction. In the case of pain management, regula-tors face repeated examples of expert reviewersholding that the community standard allowsalmost any level of intervention, including watch-ful waiting.

A close reading of Ms. Tucker’s piece raises acritical question in this regard. Why, with so muchhaving been written and shared in the medicalcommunity, is there such a continuing concernabout the widespread undertreatment of pain?Medical boards have frequently been singled outas playing a role in the creation of a climate thatcauses physicians to be afraid to act aggressively in the treatment of pain for fear of being accusedof overprescribing controlled substances. This,most certainly, has an element of truth, andmedical regulators need to look critically at thisissue to make sure that they do not inadvertentlycontribute to patient suffering through actionsthat serve to inhibit competent practice. Never-theless, we should not confer too much credit to the power of medical boards in establishingimmutable practice standards by means of theirregulatory zeal. The medical community is a powerful force for bringing competent care to the patient population, and its history does notcontain many examples of it shrinking from itsresponsibilities in the face of regulatory scrutiny.Practitioners must be challenged to do what theirtraining and their judgments, not their presump-tive fears, tell them is right for their patients.When the majority of physicians reach this levelof asserting their rightful roles, then the commu-nity standard of practice will have caught up to theexpectations of the patient community, and thebias of the regulator, if indeed there is one, will bemeaningless.

The second, perhaps even the primary, realiza-tion that Ms. Tucker exposes relates to how the

health care system served Mr. Tomlinson. Muchhas been made over the past few years about theInstitutes of Medicine Report, To Err Is Human.What has not been discussed much in the popularpress, but has been embraced by much of medi-cine, is the call that it made for intensive reviewof, and improvement to, the systems throughwhich health care is delivered. It urged a medicalsystem equivalent to the business community’scontinuous quality improvement efforts. Indeed,Ms. Tucker’s recount of Mr. Tomlinson’s saga was replete with examples of how a system, lackingcoordination, allowed a fragile patient, in his finaldays of life, to be passed from one health care facil-ity to another, from one physician to another, andfrom one nursing team to another, absent anyexhibition of the continuity of care, evaluation,and management that might have identified hisreal needs and addressed them in a way that couldhave relieved his agony and maintained his dignity.This is where our real attention must be drawn.Individually, doctors and nurses have tremendousresponsibilities, and in the current system, weplace an overwhelming expectation on each ofthem to be responsible to meet every challengethat responsibility imposes. However, if realimprovement in health care delivery is to be real-ized, it will come more assuredly from broad-based improvements in the systems that have the potential to influence how every patient ismanaged. If there had been a better system inplace for evaluating Mr. Tomlinson’s conditionand needs, and for communicating that informa-tion to responsible caregivers throughout thetransfer of treatment, I believe that there may havebeen a different, more positive, outcome in thiscase.

In summary, standards of treatment in medicineare constantly evolving. Some of those standardsmay be set as much by community expectations asby medical technology and awareness. Each pro-fessional in the system must be ever vigilant inmaintaining his/her level of knowledge and com-petence, and, in the long run, we must all put pres-sure on the systems of health care delivery toimprove their models to aid in the prevention oferror and the fostering of best practices.

Ron JosephFormer Executive Director

Medical Board of California1434 Howe Avenue

Sacramento, CaliforniaE-mail: rjoseph@dgs.ca.gov

224 Fishman et al.

Commentary: Ronald J. Kulich, PhD, and Nina J. Pelletier, Esq

We looked forward to receiving an objectivereview of the Tomlinson case, as well as the earlierBergman v. Chin case, given their notoriety.Notwithstanding the impressive success with these cases, we were disappointed by the editorialoffered by Attorney Tucker. Pain medicine physi-cians rightfully deserve an objective, impassionedanalysis of these cases for the purpose of apply-ing this knowledge in clinical and public policysettings

The Tomlinson case was pursued on the heelsof Bergman v. Chin, where the California ElderAbuse Statute was employed to address allegedmalpractice in the case of an 84-year-old deceasedlung cancer patient. The Tomlinson matter maybe more significant, in that the MBC elected topursue issues around standard of care and issue apublic reprimand. Unfortunately, the Tomlinsonfamily settled before trial, and access to the detailshas been an issue. Most of the available informa-tion has been distributed through press releasesand editorials by Attorney Tucker’s advocacygroup. Medical board commentary and informa-tion from a plaintiff expert are posted on herwebsite, while details of the defense’s position havebeen lacking.

While the plaintiffs in Bergman v. Chin pre-vailed in their ability to win a verdict on the issueof failing to adequately treat the patient’s cancerpain, the case resulted in significant concernwithin various medical societies, especially thoseconcerned with the rise in new and creative strate-gies for pursing medical malpractice claims. Crit-icism centers on an increasingly common practicewherein the plaintiff attorney attempts an “end-run” around malpractice statutes and employselder abuse claims or threats of criminal sanctionsinstead. While a number of states have elder abusestatutes, California apparently leads the county inthese quasi-malpractice cases. As a result of elderabuse claims, physicians’ liability carriers haveargued that nursing homes are largely uninsurable.In some cases, physicians may offer to settle underthe threat of criminal actions, wherein their carriers may not provide coverage, and state capson malpractice or attorney fees may not be applicable.

Even among pain specialists, who are uniquelysympathetic to allegations of substandard paincare, there is a concern that employing elder abusestatutes and the related efforts to criminalize

physician behavior send the wrong message.Indeed, the use of criminal complaints appears tocut both ways, as evidenced by the recent eventswhere physicians were prosecuted for murderwhen opioids were allegedly overprescribed withtragic results.

Specifics regarding the alleged failings of Dr.Whitney were unclear from this editorial, whilethey have been clearly documented in the publicreprimand by the MBC. An objective analysiswould have included unedited commentary fromthe defense, with special attention to the detailsoffered by the medical experts on both sides. Forexample, additional information from the Tomlin-son and Bergman cases could have provided a basisfor a productive discussion on the use of valid andreliable pain measures in a geriatric setting, as thisposes a dilemma faced by responsible medico-legalexperts when they attempt to defend clinicalassessments and judgments of a physician defen-dant. This issue was noted in past reviews of theBergman trial, with the defense claiming that thepatient reported “satisfaction” with his care, whilehis pain ratings apparently ranged from 7–10.

While the Bergman and Tomlinson cases haveimportant relevance to the treatment of cancerpain, some advocacy organizations have continuedto obfuscate the issue by repeated efforts to extrap-olate the findings to chronic noncancer pain. Forexample, the decision in the Bergman case hasbeen liberally promoted to support the positionthat all patients complaining of noncancer painhave a “right” to chronic opioid therapy. The caseis commonly described on multiple internet sitesas an example of “what can happen to a doctor whofails to provide chronic opioid therapy” for a rangeof noncancer pain syndromes. Even the mostsingle-minded chronic opioid therapy advocatesnow admit that complex pain syndromes oftendefy a simple opioid treatment regimen. Indeed,editorials of this sort could have more impact forthe cause of improving access to pain treatment if the authors underscored the relevance of thesecases for geriatric patients suffering from under-treated cancer pain.

Notwithstanding the increasing use of the elderabuse statute in California by plaintiff attorneys,pain clinicians also need to recognize that elderabuse cases of this sort are extremely rare, andperhaps they can be viewed as anomalies. Tradi-tional malpractice cases and medical board sanc-tions for the alleged undertreatment of pain haveremained relatively rare, and many cases reportedin the popular press have been the most egregious

Elder Abuse for Undertreated Pain 225

examples of substandard practice. Most malprac-tice cases are likely to continue to center on thealleged failings of surgical or invasive treatments, asevidenced in the most recent review of claims datafor pain physicians with anesthesia specialties.Nonetheless, plaintiffs’ attorneys will continue todevelop creative malpractice strategies for patientsand families who allege that they have beenharmed. Many of us remain uncomfortable withsome of these approaches, including the use ofelder abuse statutes or criminal sanctions to addressthe deficiencies with pain care in our society.

Ronald J. Kulich, PhDMassachusetts General Hospital

and Tufts School of Dental MedicineBoston, Massachusetts

Nina J. Pelletier, EsqPrescott & Pelletier

Boston, Massachusetts

Commentary: Albert Ray, MD

I believe that any physician would be hard pressedto defend the inadequate pain care in this partic-ular case. It is painful to read about the way thispoor patient had to spend his final days. Themedical management by both Dr. V. and Dr. Wshowed a poor knowledge of analgesic pharma-cology, and unfortunately, neither physicianrequested a consultation with a pain medicine specialist. The care given by the nursing staffs atboth MD and BCC was equally inadequate.

In addition to the inadequate state of educationin pain care and its obvious reflection in thismedical case, another area of concern in the Tom-linson case is the way this matter was handled in thelegal arena. A complaint was appropriately filedwith the MBC, California DHS, and CMS to dealwith the physicians and two facilities that took partin the care of Mr. Tomlinson and were responsiblefor the inadequate care he received and the suffer-ing he had to endure. However, as pointed out inMs. Tucker’s article, the state medical negligencelaw in California does not permit “pain and suffer-ing damages” to survive death. “Thus there wouldbe no damages recoverable for Mr. Tomlinson’spain and suffering under a medical negligenceclaim in California,” according to Ms. Tucker.

Rather than live within this law, the plaintiffs’counsel opted to pursue a tort case as elder abuse,which required the plaintiffs to prove recklessness,rather than medical negligence, on the part of the

defendants in court. This move was based on aprecedent in an earlier case (Bergman v. EdenMedical Center). The use of this legal move is themost troublesome part of this case for physicians.I cannot imagine a physician who would not be in agreement with the Tomlinson’s family beingawarded monetary damages as a medical malprac-tice case of negligence, but that is not permittedunder current California law. However, the atti-tude prevailing here seems to be “if the medicallaw won’t let us get them, then let’s invent a new approach so we can get them.” Clearly, this“revenge” attitude toward manipulating laws to fitthe immediate need is typical of what physiciansare facing nowadays. It is akin to double jeopardy.Granted that Tomlinson’s care was sorely inade-quate and below the standard expected within thecommunity, but to make a case of poor medicalcare delivery into a “recklessness” crime is not theanswer. How are physicians going to be able topractice medical care when they are now underscrutiny to be held not only professionally liable,but also criminally accountable for every movethat they make?

This case is one that arouses a strong emotionalreaction. It is painful to think of this poor patientsuffering because of inadequate medical care. Ms.Tucker even points out that the media attentionwas “strongly” supportive of the plaintiffs. Thus,the case made a poor one to defend to a jury,regardless of any legal issues, including the needto prove recklessness. Thus, probably wisely, allparties settled prior to a jury trial. But that doesnot excuse or justify the use of criminal law in amedical malpractice circumstance simply becausethe law didn’t offer what the plaintiffs wanted.

In addition, it is not medically correct to assumethat all pain can be adequately controlled. Thereis no guarantee that even adequate pain care willresult in a lack of suffering in all cases. There isno 100% rule in medicine. Ms. Tucker’s articlestates that the family was deprived of having Mr.Tomlinson die comfortably, with them being thereat his side and him being aware of them. Medicalmanagement of pain does not guarantee that thepatient will be conscious, aware of the family, ableto relate to them, or be pain free. It is our hopeand goal to have that scenario, but it is not alwayspossible. There is also no guarantee that as-neededmedication has to result in severe suffering, as Ms.Tucker stated it does. It is known that as-neededmedication schedules result in the patient experi-encing more pain (due to several factors) thanregular dosing schedules, but it is unreasonable to

226 Fishman et al.

assume that it has to be severe pain. There is nodisagreement with the standard of routine dosing,only the legal opinion of Ms. Tucker that it willinevitably lead to severe suffering to have an as-needed schedule.

In contradistinction to undertreatment of painissues, physicians now face the reality of beingprosecuted by the DEA, medical boards, andpatients or their families for overprescribing painmedications. The literature, and the media, areregularly indicating storm-trooper-like actionsbeing taken against physicians for overprescribingpain medications. Physicians are being arrested infront of their patients, their offices are being ran-sacked to confiscate medical records, et cetera.They are facing legal fees to defend themselves,even if they have done nothing wrong.

Insurance companies have jumped into thearena and are making it difficult for patients toobtain medications for pain relief. In Florida,many carriers are now limiting the number of pills(regardless of dose or dosing instructions) thatthey will pay for, placing a high financial burdenon patients. Others are refusing to cover medica-tions unless they are ordered under U.S. Food andDrug Administration-approved schedules, that is,no off-label coverages.

Certain medications are being singled out for scrutiny, such as oxycodone, and nowhydrocodone, while the real issue, addictive disor-ders, is being ignored. The DEA is now consider-ing placing hydrocodone in a Schedule II category,which will place greater financial burden onpatients (no refills, resulting in monthly doctorvisits) and a scheduling crunch on physicians’ timeto refill patient medications. Although there is asmall number of physicians who abuse their pre-scribing privileges, the majority do not, and yetthey will be made to suffer for the few. In addi-tion, the few patients who do have an underlyingaddictive disorder will simply seek their drugselsewhere, but inflict difficulties on the majority oflegitimate patients who take their medicationsappropriately. The end result, however, of all this prosecution and control is that many physi-cians become frightened to treat pain, resulting in undertreatment and defensive postures by physicians.

Thus, even if the pain care in this case had beenmore appropriate, the physicians would have hadto remain mindful of being too generous in effortsto obtain pain relief. It has become a fine whiteline that we must walk in terms of pain care,neither offering too much, nor too little.

The MBC, California DHS, and CMS allissued what they could to punish the partiesinvolved and to try to assure that the inadequacieswould be righted to prevent any future occur-rences of similar poor care. The fact that the plain-tiffs filed a tort case against all involved parties inorder to collect monetary damages not availablethrough negligence law, makes one wonder aboutthe motivation behind it. Was this motivated bythe emotions about the case on the part of thefamily? Was this a case of what American MedicalAssociation President Donald Palmisano calls“jackpot justice” by the attorneys? Was theremotivation beyond “wanting to be sure this didn’thappen to anyone else”?

This family was not medically ignorant. Ms.Tucker points out that Mr. Tomlinson’s daughter,Ginger, “had heard” of the Bergman case, a casesimilar in some aspects to the current one. (Iwould question how many California licensedphysicians were aware of the Bergman case in2001?) The family also were savvy enough tocontact the CIDF to seek recommendations as tolegal avenues. One would have to wonder, then,why this family, which had been urging better paincare for Mr. Tomlinson as far back as his 5-day stayin the hospital, would wait 17 days at BCC for Dr.W to come and see the patient without demand-ing a change in attending physician, or movinghim to a different facility? Is there any accounta-bility in terms of the so-called “elder abuse” ontheir part? Was there any guilt on their part motivating the elder abuse charges?

One also wonders what financial arrangementswere made with the plaintiff counsel? If all partieswere punished to the extent of the law without theelder abuse tort case, then what was the need forthe monetary portion to be so vigorously pursuedthat the case had to step outside medical negli-gence to obtain it? Was the plaintiff counsel paida fee or were they paid a percent of the settlement?And if so, what was the percentage? Clearly, bythis case becoming a tort case, the Californiamedical malpractice caps would be circumvented.None of these questions can be answered with theinformation that is available. All financial settle-ments, other than that of BCC, are confidential,thereby leaving several issues unanswerable.

This case represents one of clear-cut poor paincare in a man who had to die in pain as a result.The MBC, California DHS, and CMS repri-manded and punished the involved physicians andfacilities to correct the situation and preventfurther episodes in the future. This case happened

Elder Abuse for Undertreated Pain 227

medical practice and by urging medical schools toestablish and support pain medicine residencies.This would result in a significant improvement inpain care education for all physicians, nurses, andtreatment facilities, resulting in the avoidance ofmore cases with poor pain care like that receivedby Mr. Tomlinson. It would result in a far morebroad-based solution than filing charges againstphysicians, one at a time. The expenditure offinancial and educational resources would be farbetter utilized in fixing the problem, not putting aBand-aid on one cut at a time.

Albert Ray, MDDiplomate, American Board of Pain Medicine

Diplomate, American Board of Psychiatry and NeurologyMedical Director, Pain Medicine Solutions

Clinical Associate Professor of Psychiatry,University of Miami, School of Medicine

Miami, FloridaE-mail: array@painmedicinesolutions.com

228 Fishman et al.

at a time when pain care standards were just beingimplemented nationally. In fact, the state of California did not pass a mandatory educationalrequirement in pain management for physicians(AB 487) until June 1, 2002, long after this inade-quate care had happened. The California mandategives physicians until December 31, 2006 to com-plete this education. This case serves us all as agood example of why such educational require-ments are being implemented, as well as showingthe inadequacies of the system in providing ade-quate pain care. Physicians will be more aware ofthe specialty of pain medicine and more inclinedto call for a pain specialist consultation when thesystem embraces the relatively young specialtyinto its ranks and promotes better pain care for the U.S. public. State medical boards, which arecharged with protecting the public, would furtherpublic well-being by urging the American Boardof Medical Specialties to admit new memberboards that represent the changes in current