Update 002: Volume 10, Number 2 (April 1996)

Second Circuit Court of Appeals rules NY assisted-suicide laws unconstitutional

Following in the footsteps of its West Coast counterpart, the New York-based U.S. Court of Appeals for the Second Circuit has struck down, as unconstitutional, two New York statutes banning assistance in suicide and assistance in attempted suicide. The court’s decision affects Connecticut and Vermont as well. Earlier this year, in March, the Ninth Circuit Court of Appeals in San Francisco ruled that Washington State’s 142-year-old anti-assisted suicide law was also unconstitutional (see Update, 1-3/96:1). Both the New York and Washington State lawsuits challenging the constitutionality of anti-assisted suicide laws were argued by Washington State lawyer Kathryn Tucker and funded by the Seattle-based suicide advocacy group, Compassion in Dying.

The Second Circuit’s three-judge panel unanimously ruled on 4/2/96 that “[t]he New York statutes criminalizing assisted suicide violate the Equal Protection Clause [of the U.S. Constitution] because, to the extent that they prohibit a physician from prescribing medications to be self-administered by a mentally competent, terminally-ill person in the final stages of his terminal illness, they are not rationally related to any legitimate state interest.” [Quill v. Vacco, No. 60, slip op. (2d Cir. Apr. 2, 1996) at 27-28.] By so ruling, the court overturned a 1994 decision by Federal District Judge Thomas P. Griesa, which staunchly upheld the statutes’ constitutionality (see Update, 1-2/95:1).

Unequal treatment

The Second Circuit found that the NY statutes do “not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths.” [p. 18] Terminally-ill patients on life support, the court argued, have the legal right to hasten their own deaths with medical assistance by refusing life-sustaining measures. Yet terminally-patients not on life support are prohibited by the assisted-suicide statutes from obtaining medical assistance in hastening their deaths by means of drug overdoses. According to the court, “it seems clear that New York does not treat similarly circumstanced persons a-like….” [p. 23]

Judge Roger J. Miner, writing for the majority, rejected any distinction between letting nature take its course (removal of life-support) and intentionally causing death (assisted suicide): “By ordering the discontinuance of these artificial life-sustaining processes or refusing to accept them in the first place, a patient hastens his death by means that are not natural in any sense.” “Indeed,” wrote Judge Miner, “there is nothing ‘natural’ about causing death by means other than the original illness or its complications. The withdrawal of nutrition brings on death by starvation, the withdrawal of hydration brings on death by dehydration, and the withdrawal of ventilation brings about respiratory failure…. It certainly cannot be said that the death that immediately ensues is the natural result of the progression of the disease or condition from which the patient suffers.” [p. 23]

While it is true that there is no significant difference between assisted-suicide/euthanasia and the practice of starving and dehydrating to death certain patients whose lives lack “quality,” it is apparent that Judge Miner has overlooked, among other things, an important, major distinction between assisted suicide and the removal of unwanted, bodily-intrusive, life sustaining measures, which take over whole systems of the body (such as respirators and kidney dialysis machines). This distinction was discussed in a 1994 report on assisted suicide and euthanasia issued by the prestigious, government-sponsored New York State Task Force on Life and the Law. According to the Task Force, “The fact that the refusal of treatment and suicide may both lead to death does not mean that they implicate identical constitutional concerns. The imposition of life-sustaining medical treatment against a patient’s will requires a direct invasion of bodily integrity…. It is this right against intrusion — not a general right to control the timing and manner of death — that forms the basis of the constitutional right to refuse life-sustaining treatment. Restrictions on suicide, by contrast, entail no such intrusions, but simply prevent individuals from intervening in the natural process of dying.” [NY State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context, 1994, p. 71. Emphasis added.]

No legitimate state interest

In addition to finding that the anti-assisted suicide statutes in NY prevent patients from being treated equally under the law, the Second Circuit ruled that this inequality is not rationally related to any legitimate state interest, including the protecting or preserving of life. As Judge Miner wrote, “But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? Surely, the state’s interest lessens as the potential for life diminishes.” [Quill v. Vacco, p. 24] This is essentially the same argument put forth by Judge Stephen Reinhardt in his Ninth Circuit majority opinion when he wrote, “The state’s interest is dramatically diminished if the person it seeks to protect is terminally-ill or permanently comatose and has expressed a wish that he be permitted to die….” [Compassion in Dying v. Washington, No. 94-35534, 1996 WL 94848 (9th Cir Mar. 6,1996) at 3. See also, Update, 1-3/96:2] The idea that the state has less of an interest in protecting the lives of certain patients was proposed by Compassion-in-Dying lawyer Kathryn Tucker during oral arguments before the Ninth Circuit panel of 11 judges. Tucker argued, “With a patient [in] terminal-phase illness, there is no viable life, and the state interest is correspondingly less.” [Oral Arguments, Compassion-in-Dying v. Washington, 9th Cir., 10/26/95]

The concept of a living patient with “no viable life,” whom the state has little or no interest in protecting, should be alarming. In adopting this rationale, both the Ninth and Second Circuits have essentially ruled as insignificant another compelling state interest: to protect patients from error and abuse. If the state has a diminishing interest in protecting certain patients, it could then be argued that these patients have diminishing rights to protection. At a time in this country when HMOs and managed care programs are already giving doctors financial incentives not to treat patients needing care, it would not be long before those patients — whom the state has little interest in protecting — may find that their only “choice” is death. As the NY State Task Force on Life and Law stated in its report, “[L]aws barring suicide assistance and euthanasia serve valuable societal goals: they protect vulnerable individuals who might otherwise seek suicide assistance or euthanasia in response to treatable depression, coercion, or pain; they encourage the active care and treatment of the terminally ill; and they guard against the killing of patients who are incapable of providing knowing consent…. The state’s interest in protecting these patients outweighs any burden on individual autonomy that prohibitions on assisted suicide and euthanasia might entail.” [When Death Is Sought, p. 73-74]

No constitutional right to die

While the Second Circuit did not find any compelling state interest in protecting patients by prohibiting assisted suicide, it also did not find a fundamental right to die in the U.S. Constitution. In fact, it strongly rejected the argument, espoused in the Ninth Circuit decision, that assisted-suicide laws violate a substantive liberty interest guaranteed in the Due Process Clause of the Fourteenth Amendment. The Second Circuit ruled that the NY statutes do not violate any “fundamental right or liberty”; that the “right” to die is not “implicit in our understanding of ordered liberty,” nor is it “deeply rooted in the nation’s traditions and history.” “Indeed,” the court said, “the very opposite is true.” In the majority opinion, Judge Miner concluded, “The right to assisted suicide finds no cognizable basis in the Constitution’s language or design, even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death. We therefore decline… to identify a new fundamental right.” [Quill v. Vacco, pp. 13-14]

Up to the people

In a separate but concurring opinion, Second Circuit Judge Guido Calabresi, while agreeing with his fellow judges that NY’s existing assisted-suicide statutes “cannot stand,” expressed his “unwillingness” to “make a final judgment” as to their constitutionality based on either the Equal Protection or Due Process Clauses. “What is not ready for decision ought not to be decided,” Judge Calabresi wrote. [Quill v. Vacco, No 60, slip op. (2d Cir. Apr. 2, 1996) Concurring Opinion, G. Calabresi, at 1] Judge Calabresi argued that “when a law is neither plainly unconstitutional… nor plainly constitutional, the courts ought not to decide the ultimate validity of that law without current and clearly expressed statements, by the people or by their elected officials, of the state interests involved.” [pp. 15-16] Since the rationale for NY’s assisted-suicide laws “has eroded with the passage of time,” Judge Calabresi would remand the question to the state legislature and the people to decide if the existing statutes, or new ones, should stand and, if so, to articulate the reasons for their existence. [p. 20] “Without a second look by the people, courts are liable to err in either direction,” he wrote. [p. 23]

While Judge Calabresi’s concurring opinion is contradictory at times, its emphasis on state’s rights may prove appealing to a U.S. Supreme Court reluctant to find new, fundamental rights in the Constitution or to create the same kind of rift in this country which occurred after Roe v. Wade. Both the New York and the Washington State attorney generals have indicated that they will appeal the Second and Ninth Circuit rulings, respectively, to the nation’s highest court. Washington Attorney General Christine Gregoire issued a press release stating that the basis of their appeal will be that it is the right of the state “legislature — or the people through the initiative process — to change the law.” [Press Release, 3/25/96] It remains to be seen if the Supreme Court agrees to hear either case. In the meantime, both the Second and Ninth Circuit rulings have been temporarily stayed, barring them from taking effect, to give the states time to appeal to the Supreme Court.

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Ninth Circuit may reconsider right-to-die ruling

On 3/25/96, in a most unusual move, the Ninth Circuit Court of Appeals issued an order directing the parties in Compassion in Dying v. Washington to submit briefs on whether the Ninth Circuit should rehear the case again, this time by a full panel of 28 judges. The order came 19 days after an 11-judge panel issued its 8-3 ruling which created a constitutionally-protected right to determine “the time and manner of one’s own death.” [Compassion in Dying v. Washington, No. 94-35534, 1996 WL 94848 (9th Cir Mar. 6, 1996) at 3. See also, Update, 1-3/96:1.]

Never before has an 11-judge ruling been reheard by a full panel of the Ninth Circuit’s active judges. Reportedly, a request for the rehearing came from at least one judge not happy with the Ninth Circuit’s last finding. The court declined to identify the judge or judges displeased with the ruling. [San Francisco Chronicle, 3/30/96:A19]

The court’s decision on whether to rehear the case is still pending. Some legal experts predict that the Ninth Circuit will decide against a rehearing, now that the Second Circuit has aIso found assisted-suicide laws unconstitutional. But if the court does hear the case again, it will be for the third time — a fact that some say proves that the question of legalizing assisted suicide and euthanasia does not belong in the courts.

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What they’re saying about the two Circuit Court decisions….

Syndicated columnist Charles Krauthammer:

“Question: If the liberty interest mandates permitting assisted suicide, how can one justify current drug laws? If the state may not impinge on your liberty to make yourself dead, how can it impinge your liberty to make yourself high?…

“Is it too much to hope that the Supreme Court will put a stop to it? It would do a great service to the democratic character of this country by reviewing these cases, overturning them, and remonstrating against the breathtaking arrogance of these imperial judges.” [“Physician-assisted suicides should be decided by public, not courts, Chicago Tribune, 4/15/96]

Syndicated columnist Tony Snow:

“Having brushed aside religion and legal precedent, the judges argue that people stricken with terminal illnesses do not have as compelling a “life interest” as other citizens. The idea is that the state doesn’t need to protect a diapered adult with the same zeal it uses to preserve the life of a strapping teen…. Although the court talks lovingly of the terminally ill, one cannot help feeling that the judges also view sick people as annoying reminders of our own mortality.”

“In a revealing aside, the eight judges who drafted the decision note that ‘we need not predict the court’s future course in order to decide the case before us.’ They may not worry about outcomes — but the rest of us should.” [“When compassion becomes eugenics,” Detroit News, 3/20/96]

Editorial, The Indianapolis Star:

“Now a federal appeals court has detected another heretofore unknown quantity: a constitutional right to die. The potential for havoc in that ruling is profoundly disturbing…. A society that esteems the right to die more that the right to life is a society that has lost its way.” [“Weighing death, life,” The Indianapolis Star, 3/18/96]

Editorial writer D. J. Tice:

“Should we expect modern jurors to respect the law and the Constitution when so many modern judges don’t?…

“The Constitution nowhere remotely discusses suicide, much less doctor-assisted suicide. Yet, there’s nothing new about suicidal wishes inspired by excruciating terminal disease. Previous generations of Americans knew all about this problem. Had they meant to create a right to assisted suicide in the Constitution or its amendments, they would have done so.” [“Federal appeals court ruling invented constitutional ‘right’ to assisted suicide,” St. Paul Pioneer Press, 3/13/96]

Writer & editor Ben Mattlin:

“I was born with a neuromuscular disability and use a wheelchair. With all the recent euthanasia news –Dr. Jack Kevorkian’s acquittal and new trial and two federal court decisions favoring assisted suicide — I don’t feel safe. It may be constitutionally protected, but the right to die seems dangerous to those of us who are not ideal physical specimens.” [“Walk a Mile in My Wheel-chair,” Los Angeles Times, 4/12/96]

Syndicated columnist Joan Beck:

“The issue is far from being settled — legally, medically or ethically. The pitfalls and dangers — legal, medical and moral — are many. The need for compassion is obvious, but there is no agreement even about what is compassionate. The potential for abuse is scary. And what might seem right in individual cases may be disastrous applied as broad law.” [“Confronting the death wish, ready or not,” Chicago Tribune, 3/14/96]

Syndicated columnist Ellen Goodman:

“Since recent court decisions lifted the ban on doctor-assisted suicide in 12 states, both those who favor and those who oppose these rulings are worrying about what happens next…. Now, ready or not — and we are not — this issue is on its way to the Supreme Court. It’s time to do more than worry.” [“Scary progress toward right to die,” Contra Costa Times, 4/11/96]

Columnist John Leo:

“Judge Stephen Reinhardt is pleased with himself, and no wonder. Discovering a new constitutional right is no longer quite as rare as finding an El Greco in your attic, but a lot of judges obviously yearn to do it and Reinhardt succeeded. Peering deep into the Constitution with his colleagues on the Ninth Circuit Court of Appeals, he discovered something nobody had known was lying around in there for 200-plus years: a constitutional right to physician-assisted suicide for the terminally ill….

“But the gravest legacy of this decision, which could end up in the Supreme Court, is that a crucial and gradually unfolding debate has been suddenly constitutionalized into yet another constricted and specialized legal argument about rights. Not much room here for the issue many of us think of as central: What kind of society, with what values, do we want America to become?” [“Judges 1, people 0,” U.S. News & World Report, 3/25/96]

Editorial, The National Law Journal:

“Both courts used stirring words, full of respect for the dignity of human life and the liberty of the individual to do as he or she chooses. But neither court seemed to appreciate the harsh commercial reality of modern medicine, in which doctors’ decision-making is increasingly influenced by health maintenance organizations’ cost strictures. Nor do they seem aware that physicians themselves, whether in the realm of drug prescription or elective surgery, have been acting less like gatekeepers than service providers dedicated to keeping their clients or customers happy. [“Death Wish,” The National Law Journal, 4/15/96]

Letter to the editor, Theodore E. Spielberg, M.D.

“Recent articles have touched on the economic pressure legally sanctioned assisted suicides might have on terminal patients, converting a right into an obligation. By extension, there will be economic pressure on physicians, in an era of managed care, where not incurring further medical expenses by assisting in a suicide becomes personally profitable….

“Lawyers do not have these conflicts and would be the appropriate professionals to actually perform assisted suicides. They obey the law. They also have a tradition as jurists who have sometimes imposed capital punishment and could impose capital protection to those not fortunate enough to qualify for withdrawal of life-sustaining treatment. Indeed, their motto might paraphrase Patrick Henry: ‘Give me liberty and give me death!” [Letter to the Editor, New York Times, 4/16/96]

Editorial, American Medical News:

“We can’t recall a time when medical ethics has suffered such a damaging series of blows in rapid succession. However well-intentioned, these courtroom decisions undermine medicine’s most fundamental ethical tenet: First, do no harm. Anyone pondering this issue seriously should think twice before accepting these determinations and the reasoning behind them at face value….

“All of this comes at a time when profits and cost containment are already putting pressure on other ethical standards in medicine. If anything, patients need to know now that their physicians will remain advocates on their behalf and not be party to the inevitable claims that some patients are needlessly ‘taking up space’….

“The acceptance of physician-assisted suicide is a sign of failure to help patients in need — not a victory to be celebrated.” [“Court-assisted ETHICIDE,” American Medical News, 4/8/96]

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Settlement reached in Klooster case

A settlement reached by members of the Klooster family has resulted in Alzheimer’s patient Dr. Gerald Klooster, Sr., being returned to his home in California. Dr. Gerald (Chip) Klooster II agreed to the settlement only after his mother, Ruth, signed court documents promising not to assist in her husband’s death, even if assisted suicide ever becomes legal in California. The settlement came while an ugly two-state court battle was being waged between Chip Klooster, a Michigan resident, and his mother, sister, and three brothers in California. The case had also pitted two judges — one in Michigan, the other in California — against each other over who had jurisdiction in the matter. (See Update, 1-3/96:6.)

At stake in this case was the life of the Gerald, Sr., who has repeatedly said that he wants to continue living. His son, Chip, had found out that his mother was making plans with Jack Kevorkian to end the elder Gerald’s life. Chip removed his father, who has Alzhiemer’s dementia, from Ruth’s control, and in so doing prevented his father from unknowingly becoming Kevorkian’s 27th victim. (See Update, 11-12/95:1) “This was an attempted murder,” Chip’s wife, Mary, said. “Jerry’s Alzheimer’s is so far along he couldn’t make a decision about ending his life.” [Contra Costa Times, 4/3/96:1A]

Ruth, however, now claims that she never intended to assist in her husband’s death and that she and Gerald, Sr., planned to meet with Kevorkian only to gather information. But Chip told the media that he had personally talked to Kevorkian, “and he [Kevorkian] confirmed indeed that he was going to end my father’s life…. He told me everyone in your family wants your father’s life ended — except me — and that I was a kook not to let it go.” [San Francisco Chronicle, 4/4/96:A13]

Chip returned his father to California only after certain protective conditions in the settlement were agreed upon. In addition to Ruth abandoning any plans to end her husband’s life, the settlement requires that a third person be present when Ruth visits with her husband for the next 6 months; that Gerald, Sr., undergo regular medical examinations; that an autopsy be performed upon his death; and that Ruth receive counselling. [San Francisco Chronicle, 4/2/96:A1]

But after Gerald, Sr., arrived home in California, Kristin Hamstra, his daughter and recently appointed legal guardian with whom he will live, told a reporter, “My mom will have open access to my house and can visit whenever she likes.” Kristin, who had known about her mother’s “assisted-suicide” plan for her father but did nothing legally to stop it, added, “They will be able to be together, to sleep together, take short day trips together, as long as there is another adult around. I’m an adult, right?” [Contra Costa Times, 4/3/96:1A]

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Increasing suicide rate among elderly

According to a report issued by the Centers for Disease Control (CDC), the suicide rate among those 65 years and older increased nearly 9% from 1980 to 1992. This steady rise came after four decades (since 1940) of declining suicide rates for the same age group. By 1992, people 65 and older made up 13% of the total population, but accounted for almost one-fifth of all suicides. Of the 384,262 suicides in the U.S. between 1980 and 1992, 74,675 (19%) occurred among seniors. By 1992, suicide had become the third leading cause of injury-related deaths for those over 65. Experts predict that the suicide rate for older citizens will probably continue to increase because seniors constitute the fastest growing age group in the country. Risk factors specific to the elderly include a higher prevalence of depression, alcohol abuse, and social isolation. The CDC report emphasizes the need for suicide-prevention activities aimed at the older population and points to the fact that health care professionals and others have not fully recognized that suicide is a preventable health problem among the elderly. [Morbidity and Mortality Weekly Report, 1/12/96:3]

An Associated Press article on the CDC report pointed out that the period from 1980 to 1992 “saw the rise of the right-to-die movement, living wills, Dr. Jack Kevorkian and his assisted-suicide machine, and the 1991 publication of Final Exit, a suicide manual that became a best-seller. Those events have made suicide more acceptable to people who once would not have considered it….” [San Francisco Chronicle, 1/12/96:A3]

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Assisted-suicide cases, current and pending

  • George Delury gets prison term

George Delury, 62, who claimed that he acted out of love and devotion when he helped his disabled wife, Myrna Lebov, kill herself, has pleaded guilty to attempted manslaughter. The charge was reduce from second-degree manslaughter as part of his plea agreement. Delury is scheduled to be sentenced on May 17 to six months in prison; he will likely serve four months.

Last December a Manhattan grand jury indicted the former editor of the World Almanac. Initially, he plead not guilty, but changed his plea after prosecutors released transcripts of a diary he kept, entitled, “Countdown: A Daily Log of Myrna’s Mental State and View Toward Death.” It is clear in the diary that it was Delury, not his wife with multiple sclerosis, who saw her “suicide” as the answer to all their problems. At one point, Delury wrote, “You [Myrna] are sucking my life out of my [sic] like a vampire and nobody cares. In fact, it would appear that I am about to be cast in the role of villain because I no longer believe in you.” In another entry, he wrote, “From all this I conclude that it is divorce time again. But this time, I am going to do my damnedest to get out of it with something for myself.” Myrna Lebov died on 7/4/95 after Delury mixed a lethal potion of an antidepressant and honey, and gave it to her to drink. Myrna’s sister, Beverly Sloane, says that Myrna was coerced by emotional abuse into drinking the deadly solution. The diary certainly provides ample grounds for questioning her state of mind at the time. (See Update, 11-12/95:3)

Generally speaking, right-to-die proponents have tried to distance themselves from this case, stating that there is some question as to whether Myrna really wanted to die. But Helen Voorhis, acting executive director of The Hemlock Society U.S.A., had an additional concern. She told the New York Times, “The sad thing is he kept such a detailed diary that I’m afraid he helped convict himself.” [New York Times, 3/16/96:23]

  • CA judge refuses to drop assisted-suicide charges

A Los Angeles Municipal Court judge has refused to dismiss felony charges brought against Keith W. Green for assisting in the suicide of his gay partner, who had AIDS. Judge Linda Lefkowitz rejected a motion from Green’s attorney, John Duran, that rulings from the Ninth and Second Circuit Courts of Appeal had rendered California’s assisted-suicide law unconstitutional. Judge Lefkowitz agreed with the prosecution that the federal rulings did not sanction all forms of assisted suicide. Referring specifically to the Ninth Circuit decision, the judge said that she “read the opinion to stand for no more” than the right of doctors to help terminally-ill patients end their lives.

Green remains charged with aiding and abetting a suicide and faces up to three years in prison. Last December, he helped his partner, James Northcutt, die of carbon monoxide poisoning by running a hose from the exhaust pipe to the rear window of Northcutt’s car. If Green is found guilty, he will be prohibited from collecting the inheritance Northcutt left to him, since probate law precludes anyone who has feloniously killed another from benefitting from the estate.

University of Southern California law professor Erwin Chemerinsky said that, while the Ninth and Second Circuit rulings seem to limit assistance in suicide to physicians only, the rationale used in both could also extend to other situations. Chemerinsky called Judge Lefkowitz’s ruling “technically correct,” but added, “I’m not sure it follows the spirit of those decisions.” [Los Angeles Times, 4/9/96]

  • Howard prosecution suspended

Unlike the California court which refused to drop charges for a non-physician-assisted suicide (see p. 7), a court in Missouri has temporarily deferred assisted-suicide charges against the husband and son of Velma Howard, 76, pending further rulings on the Ninth and Second Circuit decisions. Velma, who had Lou Gehrig’s disease, and her husband, Bernard J. Howard, 75, travelled to a motel in Joplin, MO, where other family members gathered to celebrate the couple’s 50th wedding anniversary. After the celebration, her husband and son, Bernard A. Howard, prepared a glass of orange juice laced with vodka and sleeping medication, mixed narcotics into a cup of pudding, provided her with a plastic bag and rubber bands to secure the bag around her neck, arranged the furniture so she could reach the items, and read to her play-by-play instructions from the suicide manual, Final Exit. The husband and son were the very first people ever to be charged under MO’s 1873 law banning assisted suicide, but, after the two U.S. Circuit Courts of Appeal issued their rulings, the county prosecuting attorney, Greg Bridges, decided to defer the prosecution for at least 12 months. When asked about the Howard case, Kathryn Tucker, lead attorney in both the Washington and New York constitutional challenges, commented that both rulings merely said “dying patients have the right to hasten their death with physician assistance. Spousal assistance is outside their scope.” But others, like Univ. of Pittsburgh law and bioethics professor Alan Meisel, say, if the rulings are upheld, it will be hard to draw a line between physician-assisted and non-physician-assisted suicide. “It will be equally difficult,” Meisel added, “to draw the line between assisted suicide and mercy killing.” [Chicago Tribune, 4/16/96:4; St. Louis Post-Dispatch, 1/13/96:1A]

  • Kevorkian on trial – again

Jack Kevorkian is currently on trial for the 1991 assisted deaths of two non-terminally-ill women, Sherry Miller and Marjorie Wantz. This time he is charged under common law, which the Michigan Supreme Court has said makes assisted suicide a felony. The next issue of the Update will give a full report on both the trial and the verdict.

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News from around the world

  • Effective date set for Northern Territory euthanasia law

The world’s first law permitting euthanasia will go into effect on July 1, 1996. The law, which was passed by a 15-10 vote in Australia’s Northern Territory Parliament on 5/25/95, makes it legal for doctors to prescribe, prepare, and administer deadly drugs to end qualified patients’ lives. (See Update, 5-6/95:1.) The starting date had been postponed to allow for the drafting of amendments needed to clarify specific provisions in the new law and to develop guidelines for implementation. The guidelines, however, are still in draft form, prompting criticism that the setting of the effective date was premature. But the Minister for Health Services rejected that claim, stating that the educational programs would be running for about 6 weeks prior to July 1 and that the guidelines would be released in May. [The Australian, 4/11/96:3] One of the proposed guidelines recommends that doctors warn the patient’s family and friends that a euthanasia death may be agonizing to watch. Doctors should advise those watching the induced death that lethal injections could likely induce convulsions and “violent muscle spasms,” and those in attendance should have the option to leave the patient’s bedside. One draft of the guidelines also stated, “A medical practitioner shall recommend to friend and family members, who wish to be present at the time of death, that they not be in attendance at the precise moment of drug delivery.” [The Australian, 3/22/96:1]

  • Australian doctor develops software for death

A Northern Territory doctor has developed a computer software program that would allow a person to push a button and have a lethal injection administered into an intravenous line. Dr. Philip Nitschke, a euthanasia advocate and spokesman for Doctors for Choice, said that his new “Deliverance” program would mean that physicians would not have to “push in a syringe.” Nitschke designed the program to ask three questions, the last one being, “If you press ‘Yes’ you will cause a lethal injection to be given within 30 seconds, and will die. Do you wish to proceed? Yes/No.” According to Nitschke, “We are talking about a simple device which would allow a person to decide when they wish to die and to have the medication administered.” “In other words,” he added, “to separate a doctor away from the patient.” Referring to doctors’ reluctance to personally engage in the distasteful task of killing patients under the new Northern Territory euthanasia law, Nitschke said, “I don’t know any doctors who specifically want to sit there and push in a syringe even when the patient asks, even though we are strong adherents to the idea that this is civilising legislation.” [Brisbane Sunday Mail, 3/24/96; Sydney Morning Herald, 3/22/96; San Francisco Chronicle, 4/19/96:E1]

  • Dutch euthanasia advocates fear practice threatened

According to a recent article from Australia’s Northern Territory News, Dutch euthanasia proponents are fearful that, unless the current Dutch government officially makes euthanasia and assisted suicide legal by statute, the present policy tolerating these practices will be overturned if the anti-euthanasia Christian Democrat party gains power in a future election. Concerned by this possibility, Dutch Voluntary Euthanasia Society director Marion Rookhulzen said, “We need a law which clearly sets out when euthanasia and assisted suicide is [sic] allowed and when it is not.” “As the law stands now,” Rookhulzen added, “doctors are still being accused of murder. The onus is on them to prove that, faced with two conflicting obligations — preserving life and relieving suffering — it was a case of force majeure [necessity].” [Northern Territory News, 3/18/96] But the fact that euthanasia is still technically illegal does not appear to be a formidable deterrent for many physicians. An annual report released last year by the Dutch National Public Prosecutor’s Office showed that reported cases of euthanasia rose 9% from 1993 to 1994. At that time, another spokesperson for the Dutch Voluntary Euthanasia Society, Martine Cornelisse, stated, “The numbers reflect more openness. It’s less menacing for doctors to report cases.” [American Medical News, 10/16/95:30]

(Note: In 1991, a government-sponsored study, which encouraged doctors to answer truthfully by granting them immunity, revealed that the majority of Dutch euthanasia deaths were involuntary, meaning that doctors actively killed these patients without the patients’ knowledge or consent. Such deaths clearly violate established euthanasia guidelines. But, because doctors do not report these deaths as required, there is no way to control or regulate the practice — even if the government wanted to — as long as euthanasia is considered acceptable.)
  • Scottish policy allows starvation & dehydration

As the result of a food and fluids case involving a comatose woman, Scoland’s Lord Advocate has issued a policy statement that “he will not authorise the prosecution of a qualified medical practitioner (or any person acting upon the instructions of such a practitioner) who, acting in good faith and with the authority of the Court of Session, withdraws or otherwise causes to be discontinued life sustaining treatment or other medical treatment from a patient in a persistent, or permanent, vegetative state, with the result that the patient dies.” [Statement of Policy by the Lord Advocate on Withdrawal or Discontinuation of Medical Care, 4/11/96] Dr. Peggy Norris, head of the British anti-euthanasia group, ALERT, issued a press release stating, “In Scotland the Lord Advocate has announced a decision giving doctors authority to kill patients whom they believe to be in a persistent vegetative state… despite recent evidence that ‘PVS’ diagnosis cannot be certain…. This is a cruel and unusual punishment. What degree of illness will merit death from our doctors in the future? This law must be reversed before Medicine is totally corrupted.” [ALERT press release, 2/11/96]

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Legal news notes

  • Michigan dermatologist Dr. Gregory Messenger and his wife, Traci, have filed a lawsuit against Sparrow Hospital and three doctors, alleging that those involved acted negligently in the premature birth of the Messengers’ son, Michael, and that the baby was put on life-support against their wishes. A year ago, Messenger was acquitted of felony manslaughter in the death of the infant. Shortly after the birth, he disconnected his son’s respirator without the doctors’ approval and before any diagnostic tests were completed. Messenger claimed that he acted in the baby’s best interests. However, Dr. Padmoni Karna, one of the doctors now being sued by the Messengers, testified that the baby, who was born 15 weeks prematurely, had a 50% chance of a normal life. The autopsy found no abnormalities, and the death was ruled a homicide. (See Update, 3-4/95:6.) The Messengers’ lawsuit also claims that the doctors, who handled Traci’s case after she was admitted to the hospital with contractions, did not recognize and treat quickly enough a build-up of fluid in her lungs which, the Messengers say, impeded the oxygen supply to the baby. [Associated Press, 2/16/96]
  • The parents of Brianne Rideout have filed suit against Hershey Medical Center in Hersey, PA, for taking their 3-year-old daughter off of life-support in 1992 against their wishes. The child died two days later, on July 17. Brianne had a tumor growing around her brain stem which left her comatose and in need of a respirator. She was not considered “brain dead” nor did she meet any other legal criterion for death. Yet the hospital unilaterally decided to shut off her mechanical ventilation over the protests of her parents. The Rideouts’ attorney, Thomas Hall, file the lawsuit on several grounds, charging that the hospital failed to get informed consent for a medical decision, inflicted emotional harm on the parents, and infringed upon the Rideouts’ religious freedom. “The way I saw her and the way they saw her were two different things,” Brianne’s mother, Marlene Rideout, told the New York Times. “I saw her as my baby. They saw her as just a body.” When asked about this case, nationally known medical malpractice lawyer Louis M. Tarasi, Jr., said, “Never have I heard of a case in which a hospital unilaterally decided to remove life support without a living will, a family’s consent or a court order. It’s crazy — I mean it.” A hospital spokesman has denied that Brianne’s treatment costs were a factor in the hospital’s decision to turn off life support, but according to the Rideouts’ attorney, the child’s medical records contain notations by a hospital social worker that the family’s health insurance was running out. [New York Times, 3/9/96:6]
  • On 2/8/96, the Sixth U.S. Circuit Court of Appeals dismissed a suit brought by Geoffrey Fieger, Kevorkian’s lead attorney, challenging the constitutionality of Michigan’s lawyer disciplinary system. As previously reported in the Update (7-8/96:3 & 1-2/95:7), ethics charges had been brought against Fieger for unprofessional, out-of-court statements he had made regarding several judges and a prosecutor. Fieger reportedly had called an Appeals Court judge “amazingly stupid,” referred to another judge as “corrupt a judicial temperament as one could possibly imagine,” and referred to MI Supreme Court justices as “political hacks,” calling one a “failed senator.” The Michigan Attorney Grievance Commission (AGC) had originally brought the ethics charges against Fieger, but an AGC panel later dismissed them — then the MI Supreme Court reinstated them. Fieger responded by filing a suit in federal court, arguing that Michigan’s disciplinary system violates his constitutional right to free speech, procedural due process, and equal protection. In dismissing Fieger’s claim, Sixth Circuit Chief Judge Gilbert S. Merrit stated, “[Under] Michigan attorney discipline rules…there are many opportunities for a lawyer to raise constitutional challenges.” Fieger apparently disagreed: “What [law school] course… says lawyers have no First Amendment rights? I don’t remember that course.” [National Law Journal, 3/4/96:A4]

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Studies show patients’ preference for CPR and care

The first large, multi-institutional study of nursing home residents regarding life-sustaining treatment preferences found that the majority of these residents would prefer to have cardiopulmonary resuscitation (CPR) in the event of cardiac arrest and would want to be hospitalized if they became seriously ill. The study — based on data from 421 randomly selected, decisionally capable patients from nursing homes in Pennsylvania, New Jersey, Delaware, and Maryland — found that 60% wanted CPR and 89% preferred hospitalization in the event of serious illness. Of the later group, 73% wanted to be hospitalized in the event they were ever permanently brain damaged. [AMA Science News Press Release, 12/13/95] Another recent study, published in the February issue of The American Journal of Medicine, revealed that the overwhelming majority of the critically-ill patients studied would want CPR if their hearts stopped. Only 28% indicated that they would not want to be resuscitated. The survey compiled data on 1,664 patients from hospitals in Massachusetts, California, Ohio, Wisconsin, and North Carolina, all of whom were in late or advanced stages of critical or terminal illnesses, such as acute respiratory failure, congestive heart failure, cirrhosis, and lung cancer. One-third died within six months of the study. Forty-two percent (42%) said they were willing to stay on ventilators indefinitely; 27% would rather be comatose than die; 64% would prefer living in pain over death. According to the study’s lead author, Dr. Russell Phillips of Beth Israel Hospital in Boston, “For people who are really in this situation, it’s very hard to give up on life.” [New Haven Register, 2/9/96:A7]

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Medical news round-up

  • ALS gene discovery

Researchers from UCLA and the La Jolla Cancer Foundation say they have discovered how a defective gene can cause the inherited form of ALS, also known as Lou Gehrig’s disease. The culprit, researchers say, is the overactivity of an enzyme containing copper which is produced by the defective gene and which leads to the death of brain and spinal cord cells, resulting in loss of muscle control. This discovery is expected to speed up trials of new experimental drugs which are capable of stopping the degenerative cell process by attaching to the copper in the enzyme and prolonging the life of the nerve cells containing the mutant enzyme. [Oakland Tribune, 1/26/96]

  • New treatment for stroke patients

A recent government study showed that an injection of the clot-dissolving drug TPA (tissue plasminogen activator) soon after a stroke can prevent permanent brain damage that results in paralysis and speech loss. The drug was found to dramatically improve stroke patients’ chances of pulling through with little or no lasting effects. But researchers warn that if TPA is injected too late, it could actually cause bleeding in the brain and even death. In order to be effective and safe, TPA must be administered within the first three hours of symptoms. A CT scan is also recommended because TPA should be given to only those patients whose stroke was caused by a blood clot, not by a hemorrhaging blood vessel. About 80% of all strokes are caused by blood clots. Researchers also point out that, since time is an important factor, strokes should be considered emergencies by ambulance crews, hospitals, family and friends, and the patients themselves. [New York Times, 12/14/95:A1; The Intelligencer (Wheeling, WV), 12/14/95:1] A recent study in San Francisco revealed paramedics failed to correctly diagnose 43% of stroke patients. “This is not a slam against paramedics, but it points out that training should be stepped up to take advantage of new medical advances,” said neurologist Dr. Wade Smith. Smith also recommended that a large scale public education campaign be conducted to help people recognize stroke symptoms, like paralysis or numbness on one side of the body or face, slurred speech, or difficulty understanding language. [San Francisco Chronicle, 3/29/96]