In the Courts
Our Center for End-of-Life Law and Policy serves as a catalyst and a resource for legal efforts to improve end-of-life care and to make aid in dying legally available for terminally ill, mentally competent adults. Compassion & Choices focuses on four key areas in end-of-life choice:
1. Defending and expanding choice at the end of life, including defense of Oregon's aid-in-dying law. Examples of this work include:
• Baxter et al v. Montana
• Gonzales v. Oregon
• Glucksberg v. WA
• Quill v. NY
• Sampson v. AK
2. Enforcement of living wills/advance directives for health care. Examples of this work include:
• Furlong v. Catholic HealthCare West
3. Ensuring appropriate pain and symptom management for dying patients. Examples of this work include:
• Tolliver v. Hospice House
• Bergman v. Eden Medical Center
• Tomlinson v. BCC
4. Guarding the right of physicians to adequately treat dying patients' pain. Examples of this work include:
• Dr. Joan Lewis in New Mexico
• Dr. Harold Luke in California
Archive of Case Documents
Please visit our Document Database
Baxter et al v. Montana
This case contends that competent terminally ill Montanans are guaranteed privacy and dignity by the Montana State Constitution. These guarantees protect the right of such patients to control their own death by obtaining medications from their physician to enable the patient to achieve a peaceful death, if they so choose.
Robert Baxter, 75, a retired truck driver from Billings, and Steven Stoelb, 53, a former logger and forest technician from Livingston, are represented by Mark S. Connell, a Missoula attorney and Kathryn Tucker, Legal Affairs Director for Compassion & Choices. Baxter suffers from lymphocytic leukemia and Stoelb has Ehlers-Danlos Syndrome.
Read the Montanta Law Review article (PDF)
Watch the Montana CBS news story
Read the Bozeman Daily Chronicle article
Glucksberg v. WA & Quill v. New York
This case, sponsored by Compassion In Dying, sought recognition that the choice of an adult, terminally ill, mentally competent individual to choose to hasten death by obtaining a prescription for this purpose from their physician was a right deserving protection under the US Constitution's guarantees of liberty and equal protection. In decisions issued 1997 the Supreme Court declined to recognize the right at that time, reserving the possibility that it would do so in future and inviting the states to address the issue. The cases are widely recognized to have brought much needed national attention to improving the care of the dying. Importantly, the Court recognized that dying patients have a federal constitutional right to obtain as much pain medication as is necessary to achieve relief from pain, including through terminal sedation, even if the time of death is hastened as a result.
Sampson v. Alaska
In December of 1998 two terminally ill Alaskans challenged that state's ban on aid in dying in State court under the State constitution, saying they wanted control over end of life decisions and the option of a hastened death. The case, sponsored by Compassion In Dying Federation, was a state version of the Quill and Glucksberg cases. The Alaska Supreme Court declined to recognize a state constitutional right to this choice; an opinion that has been resoundingly criticized by scholars of Alaska constitutional law.
Furlong v. Catholic HealthCare West
When California resident Margaret Furlong was admitted to the emergency room, she knew what medical care she did and did not want if her life were in danger. She brought her living will, medical durable power of attorney and Do Not Resuscitate order with her and gave them to the staff. At 82 years old, Margaret knew without a doubt that she did not want to be subjected to CPR.
But when Margaret's heart stopped, hospital staff performed CPR anyway. Margaret lingered for 10 days in the hospital ICU, wracked with pain and agony. Her son filed suit claiming elder abuse.
Margaret and her son did not obtain justice in the California courts. The state appellate court concluded that the claim could only be brought as a medical negligence claim, not an elder abuse claim. Under California law the patient's pain and suffering cannot be recovered under a negligence claim and therefore there were no damages to recover. The State Supreme Court declined to review the case.
Tolliver v. Hospice House
On March 10, 2008, a jury trial kicked off in Nebraska that could have resounding effects on end-of-life care facilities nationwide.
Renowned trial lawyer Dave Domina and Compassion & Choices legal director Kathryn Tucker are representing the family of Frances Tolliver, a Nebraska woman who suffered a terrible death at an Omaha care facility in 2004.
Mrs. Tolliver’s family asserts that their mother suffered an unnecessarily painful death because the facility misrepresented itself and was inadequately prepared to treat her pain.
Before she died, Mrs. Tolliver spent a month at Hospice House with the understanding she would receive adequate pain management and comfort care as she died of breast cancer. But her daughters attest that a Hospice House nurse chose not to apply a new morphine skin patch prescribed to Mrs. Tolliver since she did not want to ‘waste’ a patch on a dying person. Mrs. Tolliver lived longer than the nurse predicted and suffered a death full of pain and anxiety.
The case serves as a national call to end-of-life care providers around the nation. If the jury finds for the plaintiffs, care facilities will be forced to recognize the importance of providing appropriate end-of-life care. Such facilities claiming to provide comfort and end-of-life care must accurately represent themselves or suffer severe consequences as a result.
Bergman v. Eden Medical Center
On June 13, 2001 we achieved a landmark victory for the rights of the terminally ill. A California jury returned a $1.5 million dollar verdict for the under-treatment of pain at the end of life. The doctor was found reckless for not relieving the pain of an elderly man dying of lung cancer in a California hospital. The case sent a resounding wake up call to hospitals, providers and insurers that failure to treat the pain of terminally ill patient can constitute elder abuse, with serious financial ramifications. The ruling will change the way healthcare providers view pain care for the terminally ill, and the consequences of not providing proper pain management.
Tomlinson v. BCC
This under-treated pain case achieved momentous change. The California Medical Board took corrective action for failure to treat pain adequately.
Two physicians, a hospital and a nursing home have agreed to hold classes in pain management as a result of lawsuit we filed.
Ginger Tomlinson called us after the tragic death of her father. Lester Tomlinson, an 85 year old retired refinery worker, died of lung cancer. His physician in Contra Costa California never effectively treated Tomlinson's severe pain. Later, Tomlinson was cared for by at Bayberry Care Center and the physician there, Dr. Whitney, also failed to treat his pain adequately In a lawsuit filed on behalf of the Tomlinson's his final days were described as "twenty days of unremitting agony" despite the constant advocacy of his wife Rosa and daughter Ginger.
"It is something I will never get over," said Ginger Tomlinson. "My mother is 83 years old and she suffered terribly seeing my father die in such agony. No one should have to watch that."
This under-treated pain case improves care at the bedside by achieving broad accountability: through a civil tort suit, through disciplinary action imposed by the California Medical Board on Dr. Whitney (requiring 40 hours of clinical training program in pain management among other things); and through corrective action taken on a complaint filed with the state Department of Health and the Center for Medicaid and Medicare Services (CMS).
Dr. Joan Lewis, Pain Management Physician, Punished for treating pain in New Mexico.
Dr. Joan Lewis faced the possible loss of her medical license for treating pain of her seriously ill patients. We wrote an amicus brief in support of Dr. Lewis that was co-signed by Americans for Better Care of the Dying and The American Academy of Pain Management.
Dr. Harold Luke in California
Dr. Harold Luke, of Redlands, CA endured investigation and disciplinary proceedings after a nurse reported her concern that a patient died shortly after Dr. Luke ordered increased morphine, which was easing the patient's breathlessness. The medical Board of California investigated and decided to revoke Dr. Luke's license. Facing mounting concern among the state's palliative care providers, the board has stayed its action temporarily.
Experts in this case testified that Dr. Luke's care met modern standards of treatment for distress in a dying patient. Dr. Luke testified he intended to relieve the patient's suffering and did not intend to cause the patient's death. To second-guess this physician's intention and revoke his license would put a state-wide chill on pain care for dying patients. In extreme end-of-life situations, the amount of medication needed to ease suffering may have the untended consequence of hastening the time of death. The duty to relieve suffering in this setting is well-established in medical literature and ethics. Dr. Luke's compassionate treatment should be applauded, not punished.
Updated March 14, 2006
The Medical Board of California, the State agency that licenses medical doctors, investigates complaints, and disciplines those who violate the law, has reconsidered the revocation of Dr. Luke’s license and has chosen to issue instead a public reprimand for inadequate record keeping. Compassion & Choices filed an amicus brief on behalf of Dr. Luke. We are thrilled with the outcome of this case. Decisions like this are not only important to the life and career of this individual physician, they also help reduce clinician concern that prescribing aggressively to mitigate pain and other distressing symptoms in a dying patient may result in punishment.
> To view all documents related to the Dr. Luke case, click here
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