Gilah R. Mayer, Bergman v. Chin: Why an Elder Abuse Case is a Stride in the Direction of Civil Culpability for Physicians Who Undertreat Patients Suffering from Terminal Pain.

37 NEW ENG. L. REV. 313 (2003).

In Bergman v. Chin the jury found in favor of the Bergmans on the basis that Dr. Chin's conduct constituted elder abuse. This California case will have a notable impact on medical malpractice law and the pain management standards that exist for physicians. The Bergmans pursued legal action despite the obstacles before them, namely that in California the cause of action for pain and suffering dies with the person. Additionally, there is no recognized cause of action for medical malpractice where the physician is following the standard of care. Thus, Dr. Chin could not be held liable for negligence. Eventually the Bergmans sought damages from Dr. Chin and the Medical Center for violation of the Elder Abuse and Dependent Adult Civil Protection Act. They settled with the Medical Center before trial, and prevailed against Dr. Chin at trial under the Elder Abuse statute.

Reducing pain and suffering may be the most important reason students attend medical school. However, the truth is that numerous studies have shown that pain and suffering are routinely ignored or undertreated in most medical specialties. Now, more than ever, progress in the area of medical care is dependent on a powerful combination of technology and humanity. It is shocking to many that, even in today's morally advanced society, patients continue to suffer the adverse consequences that arise, and the discomfort associated with, terminal illness and chronic pain.

Pain is defined as "a more or less localized sensation of discomfort, distress, or agony, resulting from the stimulation of specialized nerve endings." Oligoanalgesia is the term used to describe the phenomenon that occurs when analgesics are used too infrequently or "at doses insufficient to relive pain." Pain is a complex experience that involves neurological and psychological components. In assessing patients with pain, it is essential that the physician evaluate the cause...