Monday, April 11, 2011


The annual national ritual of putting off taxes till the last possible moment concludes Friday amid long lines and anxieties at post offices around the country. Also Friday, in a federal appeals court in Pasadena, California, the tragic modern ritual of disputing how we die will be argued before a judge, many years after the death in question.

Where have you gone, Ben Franklin? It was Franklin who forever linked death and taxes as the inescapable pair, but even he couldn’t have envisioned this particular alignment on April 15, 2011.

Most disputes over end-of-life care end not in court, but with the patient’s death. But in Pena v. Meeker, the dispute has survived the patient by more than a decade.

Dr. Van Pena was terminated after a decade’s employment at the Sonoma Developmental Center. He says the firing violated his First Amendment rights, which he’d expressed by speaking out against and photographically documenting what he considered patient abuse and gross negligence -- the aggressive medical treatment of a woman for whom he’d signed a do-not-resuscitate order. The suit describes the patient as a 70-pound, 92-year-old woman with renal disease who had lost more than 30 pounds in four months.

For the Community Ethics Committee, how this court dispute plays out is of particular interest, because to read the court document ( is to revisit themes from studies we’ve already completed (Withholding Non-therapeutic CPR, Palliative Sedation – Continuous Deep Sedation as Comfort Care until Death) and from the one we’re just now undertaking on medical futility. There also are questions around decision-making capacity and an advance directive.

It was via attorney and futility expert Thaddeus Pope’s blog ( that I learned of the Pena case. “The actual basis for dismissal, argues Pena, was retaliation in violation of civil rights,” Pope writes. “Pena lost after a jury trial in November 2009. But one ground of appeal is that the trial court did not permit him to adequately present his medical futility argument to the jury.”

As we begin our futility study, the CEC is wrestling with how to consider the role of money in care. The subject of money tends to be avoided as too toxic, but if money isn’t the elephant in the room, it’s one in a small herd.

Interesting note: Failing by a day to coincide precisely with Tax Day and Pena’s appeal is National Healthcare Decisions Day. This national event, on April 16, is part of a movement to encourage advance care planning and creating advance directives.

How will you make your wishes known when you no longer can speak for yourself?


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