Compassion & Choices filed suit on behalf of three Californians with terminal or advanced diseases and a physician asserting that the California constitution and existing state law allow the medical practice of aid in dying. Medical aid in dying allows mentally capable adults with six months or less to live to request a doctor’s prescription for medication that they could decide to take in their final days or weeks to end unbearable suffering and die peacefully.
After adverse rulings at the trial court and court of appeals the plaintiffs asked the California Supreme Court to review the decision in light of the fact that new legislation would likely not go into effect before lead plaintiff Christy O’Donnell died. The court declined to grant review. Shortly thereafter, on February 6, 2016, Christy died at the age of 47.
John Kappos, a Newport Beach-based partner in the law firm of O’Melveny & Myers LLP, and Jonathan Eisenberg, a San Francisco based partner in the law firm of Horvitz & Levy LLP, worked in conjunction with Compassion & Choices on behalf of the plaintiffs.
“Some dying people face unbearable suffering in their final days that even the best hospice and palliative care cannot relieve,” said Compassion & Choices National Director of Legal Advocacy Kevin Díaz, who also worked with death-with-dignity advocate Brittany Maynard. “As Brittany Maynard recognized, these people desperately need the option of medical aid in dying so they can die painlessly, peacefully in their sleep – and they need it now – before it’s too late.”
The suit also asserted 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 coincided with the legislative campaign to authorize medical aid in dying in California by passing the End of Life Option Act (SB 128), which was signed into law by Governor Jerry Brown on October 5, 2015. SB 128 is closely modeled after the Oregon’s Death With Dignity Act, which has worked well for 17 years, without a single documented case of abuse or coercion.
In conjunction with filing the suit in California Superior Court in San Diego County, Compassion & Choices released a video featuring Christy O’Donnell, the lead plaintiff, who had a terminal prognosis of less than six months to live. She was a Christian, Republican civil rights attorney who lived in Santa Clarita and was a former sergeant in the LAPD. Despite receiving chemotherapy every week, Christy died on February 6, 2016, before the End of Life Option Act – another avenue for a peaceful death that Christy relentlessly championed – was enacted.
“The situation is urgent for terminally ill Californians like Christy because they cannot afford to wait for relief from unbearable suffering in their last days,” said Lynette Cederquist, M.D., a plaintiff from La Jolla who is a board certified physician in internal medicine as well as hospice and palliative medicine, and is a clinical professor of medicine.
The second patient plaintiff is Sacramento resident Elizabeth Wallner, 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 any other method that offers even the slightest hope of extending her life. Elizabeth and her family, including her 19-year-old son and her Catholic father, support her end-of-life wishes, including the option of aid in dying.
“No one would want to live through unbearable pain,” said Elizabeth. “Quite frankly, one simply can’t understand it until they are faced with the reality.”
The third patient plaintiff is Wolf Breiman, a retired landscape architect from Ventura who was diagnosed six years ago with an incurable cancer of the white blood cells called multiple myeloma. Although he is coping with fatigue and a compromised immune system, Wolf continues to work in his yard daily. He and his wife, Debbie, are staunch supporters of end-of-life options for all Californians.
“I see it as an expansion of individual rights by giving people more autonomy,” said Wolf. “I am 87 years old. I’m OK with death. I just don’t want to go out in misery.”