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Calif. Death-with-Dignity Plaintiffs Vow to Appeal Case’s Dismissal

(San Diego, CA – July 24, 2015) Gravely ill plaintiffs vowed to appeal a judge’s dismissal today of their suit asserting the California constitution and existing state law allow terminally ill adults the option of death with dignity, also known as medical aid in dying.

Compassion & Choices has won two similar suits asserting state law and/or state constitution allow medical aid in dying in Montana in 2009 and New Mexico in 2014. Compassion & Choices is providing legal advice in a similar, current suit filed in Tennessee.

The terminally ill lead plaintiff in the California suit, Christy O’Donnell, a Christian, Republican, single mom, civil rights attorney and former LAPD sergeant, is dying from brain, liver, lung, rib, and spine cancer. Christy cried after she watched the judge announce the dismissal of the case at end of the hearing.

“This is not the outcome I had prayed for, but as a lawyer, I am confident the appeals court will see our case in a different light,” said O’Donnell, who turned 47 today and lives in Santa Clarita with her 21year-old daughter, Bailey. “I don’t have much time left to live and that is why I support all end-of-life options, whether they are authorized by litigation or legislation. These options are urgent for me.”

The ruling came a few weeks after Superior Court Judge Gregory Pollack granted the plaintiffs’ motion to expedite review of the case because doctors say O’Donnell, who is morphine intolerant, is likely to die in agony within a few months if she cannot utilize medical aid in dying.
Judge Pollack concluded in his dismissal of the case today that: “It’s up to the legislature or the people to change the law, not a superior court judge.”

“We respectfully disagree with the court’s ruling and intend to appeal,” said lead plaintiffs’ attorney John Kappos, a Newport Beach-based partner for O’Melveny & Myers. “We are hopeful an appeals court will recognize the rights of terminally ill adults like Christy O’Donnell, who are facing horrific suffering at the end of their lives that no medication can alleviate, to have the option of medical aid in dying.”

“We will continue to support Christy O’Donnell for courageously carrying on in the tradition of other gravely ill plaintiffs who successfully led the fight to authorize medical aid in dying in their states,” said
plaintiffs’ attorney Kevin Díaz, national director of legal advocacy for Compassion & Choices. “Like Bob Baxter in Montana and Aja Riggs in New Mexico, Christy understands this case means as much to other terminally ill adults as it does to her.”

Medical aid in dying gives mentally competent, terminally ill adults the option to request a doctor’s prescription for medication they can take in their final days to end their dying process painlessly and peacefully. According to a bipartisan poll conducted last month by Goodwin Simon Strategic Research & Probolsky Research, 82 percent of California voters agree and 67 percent strongly agree that, “A terminally ill, mentally competent person should be able to make a private decision to end their own life, in consultation with their family, their faith, and their doctor.”

The suit also asserts that medical aid in dying is a more peaceful alternative to palliative sedation. Palliative sedation involves medicating the patient into a coma and withholding nutrition and fluids until the patient dies. Both the U.S. Supreme Court and California courts have recognized palliative sedation as a legitimate medical practice. The suit is posted at: www.compassionandchoices.org/userfiles/ComplaintCA-Lawsuit.pdf.

The second patient plaintiff present at the hearing was Sacramento resident Elizabeth Wallner, 51, who has stage IV colon cancer that has metastasized to her liver and lungs. She has fought the cancer with 18 rounds of weeklong chemotherapy treatments that made her “mind-bendingly sick,” four surgeries to remove parts of her liver and colon, radiation, radio-ablation, and other methods that offered even the slightest hope of extending her life. Elizabeth’s 19-year-old son, her Catholic father, and the rest of her family, support her end-of-life wishes—including the option of aid in dying.

“Despite this temporary setback, I remain optimistic that we will prevail in the end, so I can enjoy my last days with my son and my parents, instead of worrying about a painful death,” said Wallner.

The suit coincides with the legislative campaign to authorize the option of medical aid in dying in California by passing the End of Life Option Act (SB 128), which Christy O’Donnell testified in support of. SB 128 made history in the Golden State last month when the state Senate passed it, two weeks after the California Medical Association dropped its 28-year opposition to aid-in-dying legislation. The End of Life Option Act is closely modeled after the death-with-dignity law in Oregon, which has worked well for 17 years, without a single documented case of abuse or coercion. Currently, four other states authorize the option of medical aid in dying: Washington, Montana, Vermont and New Mexico.

“Terminally ill Californians with months, weeks or just days to live are running out of time to get relief from intolerable suffering,” said Toni Broaddus, California Campaign Director for Compassion & Choices. “They desperately want medical aid in dying as an end-of-life option by any legal means necessary. But our legislature still can—and should—establish additional safeguards for medical aid in dying by passing the End of Life Option Act before its Sept. 11 deadline.”