Plaintiffs to Appeal Dismissal of Suit Asserting Mass. Constitution and State Law Allow Medical Aid in Dying

But Court Rules Mass. Doctors Can Advise Terminally Ill Patients about Medical Aid in Dying in Authorized Jurisdictions

Jan 13, 2020 Dr. Roger Kligler legal advocacy Massachusetts medical aid in dying

Compassion & Choices will appeal a Massachusetts court’s dismissal of all but one count in a lawsuit asserting the state constitution and existing state law allow medical aid in dying for mentally capable, terminally ill adults. 

The court did rule in the plaintiffs’ favor in one of the six counts in the lawsuit: physicians are free to advise terminally ill patients about this end-of-life care option to peacefully end unbearable suffering in the 10 jurisdictions where it’s authorized: California, Colorado, Hawai‘i, Maine, Montana, New Jersey, Oregon, Vermont, and Washington, and Washington, D.C.

Compassion & Choices filed the lawsuit on behalf of two Barnstable County physicians, Alan Steinbach and Roger Kligler. Dr. Steinbach seeks to provide information about medical aid in dying and write prescriptions for this medication to his terminally ill patients who want this palliative care option. Dr. Kligler is suffering from metastatic prostate cancer (Dr. Kligler is not Dr. Steinbach’s patient).

In affirming plaintiff’s right to counsel terminally ill patients about the full range of end-of-life care options, Suffolk County Superior Court Judge Mary K. Ames concluded: 

“…the plaintiffs are correct that the law of involuntary manslaughter does not prohibit such provision of information and advice … where MAID [medical aid in dying] is legal … In concluding that MAID is not authorized under Massachusetts law, the court notes that there appears to be a broad consensus that this issue is best not addressed by the judiciary” (see pages 11, 23 of ruling posted here).

“This setback is disheartening, but we will continue this legal battle,” said Dr. Kligler. “As a physician who has treated numerous terminally ill adults, I know many of them would want medical aid in dying as an option to peacefully end their suffering. I do not know if I would use this option, but I want it for myself if my suffering becomes intolerable at the end of my life.”

“We are disappointed with this ruling and we plan to appeal it,” said John Kappos, a partner at O’Melveny & Myers LLP, which worked with the Boston-based law firm Morgan Lewis and Compassion & Choices to file the suit on behalf of Dr. Kligler and Dr. Steinbach.

“The silver lining is the attorney general's office abandoned its position that doctors could not share information with patients about the full range of end-of-life care options, including medical aid in dying in the 10 jurisdictions where it is authorized. And the court concurred that doctors have this free speech right,” said Kevin Díaz, chief legal advocacy officer & general counsel for Compassion & Choices. “It’s not the win we had hoped for, but it’s a step in the right direction to ensure that terminally ill adults can make fully informed decisions.”