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Massachusetts Law Allows Doctors to Offer Medical Aid in Dying, Suit Asserts

End-of-Life Care Advocacy Group Won Similar Suit in Montana

 

Dr. Roger Kligler

Dr. Roger Kligler

(Suffolk, Mass. – Oct. 26, 2016) Compassion & Choices has filed suit in Massachusetts Superior Court on behalf of two Barnstable County doctors asserting current state law allows physicians to offer terminally ill, mentally capable adults the option of medical aid in dying. Compassion & Choices won a similar suit in 2009 when the Montana Supreme Court ruled in Baxter v. Montana that: “… we find no indication in Montana law that physician aid in dying provided to terminally ill, mentally capable adult patients is against public policy.”

“In Massachusetts, there is no law that specifically prohibits providing medical aid in dying. Criminal prosecution against physicians who provide medical aid in dying violates our plaintiffs’ privacy rights under the Massachusetts Constitution,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices.It interferes with a person’s basic autonomy in deciding how to confront their own mortality and choose their own destiny.”

“Massachusetts courts recognize a fundamental right of citizens to make end-of-life care decisions, including the right to refuse life-sustaining treatment or nutrition,” said John Kappos, a partner in the law firm of O’Melveny & Myers LLP, which worked with the Boston-based law firm Morgan Lewis to help Compassion & Choices file the suit. “There is no rational or meaningful basis to distinguish between withdrawal of life-sustaining treatment to a terminally ill person and a physician providing the alternative end-of-life care option of medical aid in dying.”

The physician plaintiffs seek a declaration that medical aid in dying is not a crime under Massachusetts law. They also seek an injunction prohibiting the defendants, Attorney General Maura Healey and Cape & Islands District Attorney Michael O’Keefe, from prosecuting physicians who provide medical aid in dying, because they assert such prosecution is unlawful and unconstitutional. The complaint is posted at: www.compassionandchoices.org/wp-content/uploads/2016/10/10.24.16-Massachusetts-Complaint.pdf.

“Having a prescription for aid-in-dying medication that I could self-administer if my suffering became too great in the final days would provide great comfort to me,” said physician plaintiff Roger M. Kligler, M.D., a resident of Falmouth, who was diagnosed with stage 4 metastatic castrate-resistant prostate cancer. “It would alleviate my anxiety about the dying process and allow me to live my final days more fully confident that I would not have to suffer needlessly.”

Since Dr. Kligler’s medical conditions are worsening, plaintiffs will seek preferential treatment for expedited court scheduling.

“It’s unfair that Massachusetts physicians fear prosecution for offering or even discussing medical aid in dying with their terminally ill patients who want this end-of-life care option. It may make these patients feel abandoned,” said physician plaintiff Alan Steinbach, M.D., a resident of Woods Hole, who treats patients in both urgent care and as a primary care doctor. “The limit on physicians’ ability to provide patients with information on available end-of-life care options hinders our ability to provide them with full and complete information. They need this information to give us informed consent for their subsequent medical treatment.”

“Massachusetts law permits its terminally ill, mentally capable adults to request and receive medical aid and advice to shorten an unbearable dying process by withdrawing life-sustaining treatment, including nutrition and hydration,” said Kappos. “These are active steps medical professionals take to shorten an unbearable dying process and prevent prolonged pain. Yet terminally ill, mentally capable adults who cannot avoid suffering in this way would be prevented from similarly receiving affirmative medical aid if medical aid in dying is not permitted.”

Seven out of 10 Massachusetts voters (71%), including a majority of Catholics (64%), Republicans (61%) and disabled voters (74%), support medical aid in dying, according to a Feb. 2014 Purple Strategies survey.

A fall 2014 Medscape online survey of 17,000 U.S. doctors representing 28 medical specialties said they agreed by a 23-percent margin (54% vs. 31%) that: “I believe terminal illnesses such as metastatic cancers or degenerative neurological diseases rob a human of his/her dignity. Provided there is no shred of doubt that the disease is incurable and terminal, I would support a patient’s decision to end their life, and I would also wish the same option was available in my case should the need arise.”

A growing number of national organizations representing healthcare professionals have endorsed or taken a neutral position on medical aid in dying as an end-of-life care option for terminally ill, mentally capable adults. They include the American Academy of Hospice & Palliative Medicine, American Academy of Legal Medicine, American Medical Student Association, American Public Health Association and American Medical Women’s Association.

Medical aid in dying is currently authorized in six states, with a combined 30+ years of experience with this end-of-life option: Oregon, Washington, Montana, Vermont, California and Colorado. There is not a single documented case of abuse or coercion involving the practice of medical aid in dying in these states.