A Petaluma doctor who spent a decade at the Sonoma Developmental Center, and another 12 years fighting a retaliatory firing for reporting patient abuse, finally prevailed in federal district court Nov. 14 when a jury returned a unanimous verdict awarding Dr. Van Peña $1.34 million.
Peña was also awarded all legal fees, which his attorney Lawrence J. King said would amount to “north of $1.5 million more.”
Peña, now 69, was a staff doctor when he became alarmed in the late 1990s at the frequency of injuries and signs of abuse among the patient population at SDC. Even more alarming, he said, was the lack of competent investigation of abuse, along with evidence of cover-up by administrators at the facility.
“They didn’t want the information I was promulgating – assaults, rapes, all sorts of abuse – to be public,” Peña said last week.
Peña was placed on administrative leave for five months, and subsequently fired in July of 2001, ostensibly for, among other things, failing to provide CPR to a 92-year-old woman suffering renal failure. The SDC medical director at the time, Judith Bjorndal, charged that efforts should have been made to revive the patient, even though her guardian had provided specific instructions not to resuscitate the woman. Peña argued CPR would provide no medical benefit and might cause additional trauma, including broken ribs and organ damage. And the woman’s medical crisis, he insisted, was a result of medical malpractice when she was given the wrong drug and lapsed into a coma.
That pivotal case came in the midst of a flurry of abuse reports that were brought to the attention of SDC police chief Ed Contreras, who also raised the alarm to both legislators in Sacramento and the local press.
In 2000, both Contreras and Peña met extensively with then-Index-Tribune Editor and Publisher Bill Lynch, who published a five-part series detailing abuse cases and evidence of both incompetent investigations by the in-house SDC police, part of the state’s Office of Protective Services, and efforts to cover them up.
Contreras went on record with accounts of what happened while he was at SDC from 1995 to 2002 and found what he described as hundreds of incidents of resident abuse, suspicious injuries, assaults, sexual assaults and deaths, most poorly investigated or not investigated at all. In many cases, administrators kept Contreras from crime scenes within the institution, or only allowed him in after the scenes had been cleaned of evidence, he claimed.
Like Peña, Contreras was fired and, like Peña, he filed a lawsuit against SDC and the Department of Developmental Services (DDS).
Eventually, the Equal Employment Opportunity Commission ruled that SDC administrators and DDS violated Contreras’ civil rights, and he accepted a settlement of $950,000.
In Peña’s case, his claim of retaliation for being a whistle-blower followed a circuitous course, with a first trial resulting in a hung jury (6-2 against him) when the trial judge refused to allow evidence regarding abuses, medical malpractice and cover-ups at SDC. As a result, the jury did not know the heart of Peña’s claim, that he was fired for reporting patient abuse that exposed SDC to critical public scrutiny and lawsuits.
Peña claimed that Contreras told him the SDC executive director even ordered the chief to “go out and find some dirt on Peña.”
But the 9th U.S. Circuit Court of Appeals reversed the trial judge in 2011 and the case eventually returned to the district court, where the unanimous verdict was entered for Peña.
Looking back on his own experience in 2005, Contreras said at the time, “The one puzzling thing is that no SDC or DDS administrator was held accountable for their actions. Those who were involved are still employed at the facility or in Sacramento or have been promoted.”
That pattern, according to Peña, persists today.
“Most of the people at SDC are not bad people. Most of them are hard working, under-paid and caring people. But there are a few level of care people who are just evil, and the problem is that, at SDC, it comes down to fear. Those people only make, at best, $20 an hour. They know they will be retaliated against if they speak up, so the place is controlled by fear. ‘If I go along, I’ll get promoted, if I don’t go along, I’ll be crushed.’ Developmental centers breed this culture.”
Peña now has a family medicine practice in Petaluma where he provides a form of counseling along with palliative care and patients use words like “transcendence physician” and “best doctor I ever knew” in describing him online.
He refers to his former SDC patients as “people who can’t speak, they can’t fight, they’re completely helpless. What better place for people to go who wish to harm people.”
Asked if he thought abuse was still going on at SDC, he answered adamantly, “Of course it’s still going on. Why? Because the system is still the way it was before. At one level, closing it would be just great. But then, what would you do with those people? You would condemn them to death. The state should change the management. Not the policies and procedures. They’re pretty good. But they’re not followed. When I was there, I was told, ‘There’s your way and there’s the state’s way.’ If I were king for a day, I’d fire all the managers and start over.”
For his part, Peña’s attorney King – who also represented Contreras – said he opposes closing SDC. “Ninety-five to 98 percent of the people at SDC are doing a good job, working extremely hard, caring for a very vulnerable and difficult population. They aren’t the problem.”
One enduring problem for Dr. Peña is the black mark on his listing in the National Practitioner Data Base in which the state has entered the accusations that he “refused essential care to a patient” (“CPR was the wrong thing to do, immoral, there’s no way to bring back a 92-year-old woman with no kidneys” he insists.), that he is dishonest, and untrustworthy.
Those charges, refuted by the jury verdict, can only be eliminated, he said, by the party that entered them. The only impact from those comments at present is emotional, but, Peña added, were he to revise his malpractice insurance, his rates could well go up, and were he to apply for a job with an HMO like Kaiser, he might not be hired.
A request for comment on the case, and the data base listing, from the state’s lead trial attorney, Terry Penne, had not been answered at press time.
In the end, Peña said of his victory, “I don’t feel any joy in this at all. It was an ugly battle. But maybe it will help the families of those patients in SDC to step up and go to bat for their loved ones.”