Terminally Ill Adults, Doctor File Notice of Appeal of Ruling Voiding California Medical Aid-in-Dying Law

June 1, 2018

Matthew Fairchild, a 48-year-old, retired Army staff sergeant in Burbank with terminal melanoma who supports the California End of Life Option Act.

Two terminally ill adults and a physician in California today filed a notice of appeal of a lower court’s decisions in a lawsuit seeking to overturn the California End of Life Option Act. The decisions include the rejection on Wednesday of a motion filed by a physician and two terminally ill adults urging the judge to “vacate” (i.e., cancel) his judgment last week invalidating the law.

Compassion & Choices requests state Attorney General Xavier Becerra to take a position on the group’s legal opinion that its notice of appeal with the 4th District Circuit of Appeal triggers an automatic stay of Riverside County Superior Court Judge Daniel Ottolia’s judgment. A stay would reinstate the law pending further court rulings.

Similar to laws in six other states and Washington, D.C., the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep.

“We are besieged with calls from anxious, confused, terminally ill Californians, doctors and health care providers about the status of the law,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices, whose sister organization, Compassion & Choices Action Network, led the campaign to pass the End of Life Option Act. “It is becoming increasingly obvious that doctors and patients need this clarity from the attorney general or the courts. Otherwise, doctors will not feel comfortable advising patients about medical aid in dying or writing a prescription.”

“There is legal precedent that when you file an appeal with the appellate court of a lower court judgment that it automatically triggers a stay suspending the judgment to maintain the status quo,” said John C. Kappos, a partner in the O’Melveny law firm working with Compassion & Choices, which filed an amicus brief earlier in the case. “Since certainty is so important for all involved, if the attorney general or Riverside district attorney has doubts as to the existence of a stay, we will ask the court for further guidance.”

The three Californians who are asking the appellate court for a reversal of the decisions by the lower court are:

  1. Matthew Fairchild, a 48-year-old, retired Army staff sergeant in Burbank with terminal melanoma that has spread to his bones, lungs and brain who has not received a prognosis of six months or less to live but wants the option of medical aid in dying when he does.

“I am devastated to learn that this [lower] Court has made a ruling that will interfere with my ability to receive a prescription from my doctor for aid-in-dying medication when I reach a diagnosis that I have no more than six months to live and when my suffering becomes unbearable,” said Fairchild in his petition to the court. “This ruling will likely mean that I have no option when my suffering becomes intolerable and that I will have to endure a needlessly agonizing death.”

2. Joan Nelson, an 82-year-old resident of Marin County with a rare terminal cancer called leiomyosarcoma, who requested and received a prescription for medical aid in dying before the judgment invalidating the law, but now fears the legal ramifications of self-administering her medication if, and when, her suffering becomes too great.

“…I am very troubled to learn that this [lower] Court has made a ruling that could interfere with my ability to use my aid-in-dying medication when my suffering becomes unbearable’” said Nelson in her petition to the court.  “This ruling leaves me with uncertainty about whether I can legally use my aid-in-dying medication and whether my passing will be considered a ‘suicide,’ rather than death from leiomyosarcoma as it should be considered.”

3. Dr. Catherine Sonquist Forest, a clinical associate professor of family medicine at University of California at San Francisco Natividad in Salinas, who has been actively involved in the care of over a dozen patients who have pursued medication under the End of Life Option Act.

“The recent decision that the End of Life Option Act was enacted unconstitutionally has left me, my colleagues and patients reeling as we try to navigate end-of-life care,” said Dr. Forest in her petition to the court. “The resulting confusion has compounded my patients’ suffering.”

Last June, Compassion & Choices released a report estimating that 504 Californians have received prescriptions for medical aid in dying since it took effect on June 9, 2016. Last July, the California Department of Public Health released a report showing 191 terminally ill Californians received prescriptions from 173 doctors for aid-in-dying medication during the nearly seven month period from June 9, 2016 until Dec. 31, 2016; 111 of those individuals (58%) decided to self-ingest the medication.

Polling shows 76 percent of Californians across the political and demographic spectrum support medical aid in dying. This majority support includes 82 percent of Democrats, 79 percent of independents, 67 percent of Republicans, 75 percent of whites, Latinos and Asian Americans, and 52 percent of African Americans.

California is one of seven states — including Colorado, Montana, Oregon, Vermont, Washington, and Hawai‘i — as well as the District of Columbia, that have authorized medical aid in dying. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.

Case Background:

On May 15, Judge Ottolia granted plaintiffs’ motion in the case, Ahn vs. Hestrin Case RIC1607135, to invalidate the law because he claimed the legislature violated the state constitution by passing it during a special session limited to health care issues.

Judge Ottolia gave Attorney General Xavier Becerra five days to appeal the ruling, and the attorney general did so on May 21. On May 23, the 4th District Circuit of Appeal denied a separate motion by the attorney general for a “stay” to suspend the ruling, but ordered the plaintiffs to show cause why the appellate court should not overturn the ruling in 25 days. Despite the appellate court’s denial of the stay, Judge Ottolia’s original ruling didn’t invalidate the law because he had not yet issued a judgment giving effect to his decision reflected in his order last week.

Compassion & Choices
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Patricia A. González-Portillo
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