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Petaluma doctor gets $1.35M in whistleblower lawsuit

Published: Thursday, November 21, 2013 at 4:00 p.m.
Last Modified: Thursday, November 21, 2013 at 5:09 p.m.

After a dozen years of heart-wrenching court appearances, Petaluma physician Dr. Van Pena won a settlement of $1.35 million in his wrongful termination suit against the state-operated Sonoma Developmental Center. Pena has always maintained that he was fired for blowing the whistle on cases of patient abuse and medical negligence, and on Monday a jury with the Ninth District Court of Appeals agreed.

“It was a very emotional moment for the doctor (Pena),” said Petaluma attorney Lawrence King, who represented Pena throughout the 12-year legal battle, with help from co-counsel David C. King of Petaluma and Barbara Giuffre of San Francisco. “We, of course, are thrilled,” he said of the attorneys.

Pena worked as a physician at Sonoma Developmental Center (SDC) from October 1991 to July of 2001, which at the time was home to more than 1,000 severely developmentally disabled adults. Over the years, he grew increasingly concerned that reports of patient abuse and suspicious deaths were not properly investigated by authorities. Edward Contreras, who was chief of police at SDC from 1995 to 2002, confirmed that there was cause for alarm.

“Other doctors and nurses came to me with suspicious injuries, it wasn't just Pena,” he said, explaining that serious incidents were supposed to be reported to his department, but regularly were not.

“There were very significant and serious injuries under suspicious circumstances that were never reported to the (SDC) police department,” he said.

Frustrated by the lack of response internally, in 1999 Pena took the issue to the press and the California State Legislature, which held hearings to investigate the claims. As a result, a new law was passed requiring facilities like SDC to report any deaths or serious injuries to local law enforcement to investigate, instead of handling the cases internally.

Meanwhile, in attempts to document the abuse, Pena began photographing injuries he saw on clients. He soon realized those photos were disappearing from the medical files, and made a formal complaint to the Department of Health Services (DHS), the body that oversees SDC. Several months later, SDC's then medical director, Judith Bjorndal, fired Pena.

Pena filed a lawsuit against her, claiming he was fired in retaliation for blowing the whistle on myriad incidents of abuse. Bjorndal claimed it was justified because Pena went against a patient's wishes. She was referencing an incident involving a 92-year-old woman who was dying from renal failure. Because of her fragile state, Pena declined to perform CPR on the patient, even though the patient had requested extraordinary measures to keep her alive.

“All you're going to do, if you tried to do CPR on someone in that condition, is cause them pain and damage,” King said, adding that the woman's only living relative requested CPR not be performed, and other physicians confirmed CPR was not appropriate due to her fragile state.

The lawsuit worked its way through slow-moving legal channels, leading to a hung jury in 2009 and a split decision in Bjorndal's favor in 2011. Pena appealed that decision, which launched the third round of the legal battle on Nov. 4. By this time, SDC had been jolted by a new series of patient abuse claims, which caused the facility to lose $35 million in federal funding.

“We felt like we had a rock-solid case, and we thought we presented it well,” King said, “but you never know.”

The jury deliberated just a few hours before coming forward with a unanimous decision in Pena's favor. Not only was he awarded $1.35 million in damages, the Petaluma doctor will have all of his legal bills covered as well, which King said could double the amount of the settlement.

“There have been thousands of hours of attorney time working on this case over the past 12 years,” he said. “This is going to be a very expensive case for the state. They could have settled years ago with us for a lot less.”

The state could file an appeal on the ruling, but would have to prove the judge, Elizabeth D. LaPorte, was negligent in her handling of the case. King said that was “unlikely.” A call to Bjorndal's attorney, Terry Senne, was not immediately returned. Pena also did not return the Argus-Courier's call.

“It's been a very long haul for the doctor (Pena). He hung in there not just for himself, but for the clients,” King said.

Contreras agreed, “I hold Pena in the highest regard, this guy was truly an advocate, I mean truly.”

(Contact Emily Charrier at emily.charrier@arguscourier.com.)

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