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Assisted dying.

As the population ages, assisted suicide--with the help of a physician or loved one--will continue to be controversial.

Resistance to legalization and regulation of physician-assisted suicide continues to generate work for lawyers and judges. Oregon, which passed (by citizen initiative) a Death with Dignity Act in 1994, is still the only state that provides physicians and families with realistic and clear legal guidelines for hastening the death of terminally ill patients who wish to have their suffering ended.

When desperate family members help patients to die in other jurisdictions--frequently resorting to brutal actions that may be based on incomplete knowledge of relevant facts--they are thrown on the mercy of a court system that produces unpredictable and disparate results.

Consider the Nebraska criminal case against 76-year-old Vernal "Bob" Ohlrich. Last October, Ohlrich's 74-year-old wife, Phyllis, asked for help in dying to release her from the pain she suffered while being treated for colon cancer. Ohlrich brought a gun into her hospital room and killed her with one shot to the head. He also tried to kill himself, but the gun misfired.

Ohlrich was charged with first-degree murder but avoided trial by pleading to manslaughter, because, he said, he did not want his four children to be kept away from work by an extended proceeding.(1) In Nebraska, manslaughter is a felony punishable by up to 20 years in jail.

In light of Ohlrich's age and motives, defense counsel asked the court to impose a sentence limited to probation, and the prosecutor asked for a minimal prison term. At this article's writing, Ohlrich had not yet been sentenced.

In a bizarre side development, the state pathologist who autopsied Mrs. Ohlrich reported her to be free of cancer at the time of her death. She had been diagnosed in May 1988 with colon cancer, had two tumors surgically removed, underwent chemotherapy, and had been hospitalized. In reaction, the prosecutor said he did not doubt that "Mrs. Ohlrich once had been diagnosed with cancer and was in pain at the time of her death," but he also did not doubt the accuracy of the autopsy.(2) Cases like this are becoming common in the United States. The following are samples of other recent cases.

* In Pennsylvania, 66-year-old Dietrich "Whitey" Brandt killed his 65-year-old wife, Louise, when she prayed for death to end her suffering from a

combination of asthma, congestive heart failure, and diabetes. In May 1998, Brandt walked to his wife's bedside, "picked up a 2-foot-long oxygen tank ... and slammed it into the side of her head hard enough to kill her."(3) He then tried to kill himself by slashing both of his wrists, but Brandt was saved when paramedics arrived on the scene. In February 1999, Brandt was convicted of first-degree murder and then sentenced to life in prison without parole.(4) The public defender has filed an appeal.

* In New York, 42-year-old Susan Scheufler was arrested last year and charged with second-degree murder for smothering her 55-year-old terminally ill husband with a pillow on his deathbed in July 1997. Despite strong public criticism, the Rensselaer County district attorney said that he has decided to prosecute Mrs. Scheufler.(5)

* In Maryland, 68-year-old William Fishback was arrested in October 1998 for assisting in his mother's suicide. Helen Van Meter Fishback suffered from legal blindness, limited mobility, emphysema, and heart disease. On the morning of September 7, police found her in bed suffocated by a plastic grocery bag placed over her head. On the basis of a tape recording and other evidence found at the scene, the state's attorney sought a homicide indictment, but a Howard County grand jury refused to return a true bill of indictment.(6)

* In Florida, several assisted dying cases made headlines last year. In one case, 71-year-old Elaine McIlroy helped her 75-year-old husband, Richard, commit suicide by giving him chocolate ice cream over which she had sprinkled the contents of Seconal tablets he had hoarded. Richard McIlroy had decided his suffering from leukemia had become unbearable. Although Elaine McIlroy confessed to her role in the death three times to three different police officers, the Palm Beach County prosecutor dropped the case, claiming that her uncorroborated confession was not evidence enough.(7)

Palm Beach County prosecutors also dropped an attempted murder case against 72-year-old Justina Rivero, who had tried to kill herself and her husband, a victim of Alzheimer's disease, by shared ingestion of D-Con rat poison. A circuit judge found Mrs. Rivero not guilty by reason of temporary insanity,(8)

The results of these Florida cases are particularly interesting in contrast with a famous Florida mercy-killing case of the 1980s. In 1985, Roswell Gilbert, 75, shot and killed his wife, Emily, 73, who was suffering from Alzheimer's disease and osteoporosis. Gilbert was tried and convicted of first-degree murder and sent to prison for life--although he was pardoned by the governor in 1990.

"Now judges and prosecutors are viewing these cases more compassionately because of the intense spotlight on the stress [that] caregivers face," the Ft. Lauderdale Sun-Sentinel reported.(9)

"Citing lack of evidence, uncooperative family members, and juries' reluctance to convict defendants, law enforcement authorities often close the books on such cases without prosecution," concluded the St. Petersburg Times.(10)

"The safest thing for a prosecutor to say in these cases is that there's not enough evidence. Let's face it: They don't make points and get great images as crusading DAs," said Yale Kamisar, criminal law professor at the University of Michigan.(11)

Greater tolerance of assisted death in Florida has not brought unalloyed joy to leaders of the right-to-die movement. "It's not a sign that assisting a loved one to die is safe," said Mary Bennett Hudson, president of the Hemlock Society of Florida. "Another city, another county, another set of circumstances ... these things could all color the next decision."(12)

"[I]t's scary," said Faye Girsh, executive director of Denver-based Hemlock Society USA, noting that prosecutors took a year to decide whether to prosecute McIlroy. "Right now it's so discretionary."(13) Indeed, Florida prosecutors admit as much. "Each case is evaluated based on the evidence and testimony at hand," said Michael Edmondson of the Palm Beach County State Attorney's Office.(14)

Among the elements that seem to make a difference in how such cases are handled are the means of death (subtle means, such as ingestion of medication, being favored over more patently violent means, such as firearms); whether family members are unanimously in favor of the act performed by the accused; the age, personality, and community standing of the accused; and the luck of the draw as to which police officers, prosecutors, jurors, and judges are assigned to the case.

The problem of disparate treatment of aid-in-dying cases is exacerbated at a national level. States that have less experience than Florida with these cases provide families and physicians with even less guidance about how they might be handled.

In 1993, there were approximately 9,300 suicides among people 55 and over in the United States, according to Donna Cohen, chair of the Aging and Mental Health Department of the University of South Florida. Of those, 10 a week were homicide-suicides.(15) As the American population ages, more assisted dying cases are likely to challenge the legal system.

The Oregon experiment

Oregon, where physician-assisted suicide has been legal and regulated since the fall of 1997, stands in stark contrast to the other 49 states. The Oregon Death with Dignity Act permits a terminally ill Oregon patient to have physician assistance in dying as long as

* the patient can find a physician willing to assist;

* the physician and a consulting physician confirm the patient's diagnosis and determine that the patient is terminally ill;

* the physician and a consulting physician determine that the patient is capable of making the request and that the patient's judgment is not impaired by depression or some other psychiatric or psychological disorder (if there is doubt, the patient must be referred to a psychiatrist or psychologist for counseling); and

* the physician informs the patient of all feasible alternatives to assistance in dying, such as pain control and hospice care.(16)

Under the act as it has been interpreted, the patient must make a request in writing and must make two oral requests at least 15 days apart. The physician assists by writing a prescription for lethal medication that the patient may self-administer. All prescriptions written under the act must be reported to the Oregon Health Division. The physician may attend the patient when the medication is taken, but the act does not require it.

In March 1998, the first two cases of physician-assisted death under the act were reported in the press. One patient was a woman terminally ill with breast cancer that had increasingly recurred for more than 20 years. The patient asked the physician to be with her when she took the medication, and she died within a half hour after taking it.(17)

The other patient was a man also terminally ill with cancer. "We felt it went very nicely, very peacefully," a family member reported of his death, "and it was certainly satisfactory as far as helping someone who wanted to go. We felt relieved that everything went as well as it did and there was no more suffering."(18)

By the end of its first year, even the strongest opponents of the Death with Dignity Act admitted it was working in exemplary fashion. Ann Jackson, head of the Oregon Hospice Association, which had opposed the law, acknowledged that the act was "giving Oregonians one more option at the end of life. It's just one of many choices."(19)

"It's not the harbinger of destruction that people thought it was going to be.... It's being implemented thoughtfully and carefully," said Rev. John Tuohey, a Catholic priest in charge of health care ethics at Providence Health System, Oregon's Catholic hospital network. "We'd rather people didn't choose it, but it challenges us to provide better care so they won't choose it."(20)

In the four years since the original law passed, caregivers have been provoked into making Oregon one of the best places in the country to receive palliative care. Oregon now ranks third in the nation in the rate of hospice admissions,(21) and it ranks in the top five in per capita use of morphine for medical purposes.(22)

"[M]ost of the major hospitals have established strong pain-management programs since 1994 as an alternative to assisted suicide," according to Dr. Susan Tolle, director of the Center for Ethics in Health Care at Oregon Health Sciences University in Portland.(23)

Results

In February 1999, the Oregon Health Division reported on the first year under the Death with Dignity Act.(24) Twenty-three terminally ill patients were prescribed lethal medication. Fifteen died after taking the medication, six died from underlying illnesses, and two were still alive.

Profiles of the cases indicated that the worst fears of the act's opponents had not been realized. Comparison of the 15 cases with a selected group of control patients strongly suggested that "sex, race, urban or rural residence, level of education, health insurance coverage, and hospice enrollment" were not factors in whether patients received physician assistance in dying. Ten of the 15 were under hospice care at the time of death, and three of the others were offered this care but refused it. Only one patient gave "inadequate" pain control as a reason for requesting aid in dying. The predominant reasons given were "loss of autonomy due to illness" and "loss of control of bodily functions."

The Oregon Health Division "cannot determine whether physician-assisted suicide is being practiced outside the framework of the Death with Dignity Act."(25) Only actions taken by physicians are reported to the division, and it has no authority or resources to conduct independent investigations. However, only one ambiguous case has publicly surfaced during the past year.

The case was reported but raised questions about the act's proper interpretation. In March 1999, the Coos County district attorney learned that Joe Hayes had helped his terminally ill brother-in-law Patrick Matheny ingest lethal medication prescribed for him under the act. Since the act legalizes only suicide, the district attorney requested a medical examiner's inquiry to determine the nature and extent of the help. The examiner concluded that Hayes merely held a glass for Matheny so that he could drink through a straw.

The district attorney said he was satisfied that Matheny intended to commit the act, and disabled people should have the right to physician-assisted suicide under terms of the act. To avoid problems in the future, he suggested at least two people should be with the dying person to substantiate that assistance is given only to help the person carry out a desired act.(26)

Even acts like Oregon's do not completely eliminate litigation, and if U.S. Congressman Henry Hyde has his way, these laws will not even significantly reduce it. Hyde and other congressional opponents of legal physician-assisted suicide drafted the Lethal Drug Abuse Prevention Act of 1998,(27) which would amend [sections]304(a) of the federal Controlled Substances Act(28) to remove Drug Enforcement Agency (DEA) prescription authority from any physician who "has intentionally dispensed or distributed a controlled substance with a purpose of causing, or assisting in causing, the suicide or euthanasia of any individual." This would deny any Oregon physician who prescribed a controlled substance under the Death with Dignity Act the right to prescribe controlled substances for any purpose.

Although the Hyde bill got lost in the frenzy of the impeachment process, it is likely to resurface in some form this year. The bill enjoyed avid support in right-to-life political circles, despite opposition from physician groups like the American Medical Association that have usually joined right-to-life groups in resisting legalization of physician-assisted suicide.

Palliative care physicians were frightened by the federal oversight the legislation would have imposed on "terminal sedation"--giving massive doses of pain-killing medicines that hasten death while they suppress pain. The bill stated that it did "not apply to the dispensing or distribution of a controlled substance for the purpose of alleviating pain or discomfort (even if the use of the controlled substance may increase the risk of death), so long as the controlled substance is not also dispensed or distributed for the purpose of causing, or assisting in causing, the death of an individual for any reason."

This would put the federal government in charge of deciding the motives of individual doctors in prescribing controlled substances in any case.

"We're very concerned that this sort of bill using the federal government, the Justice Department, the DEA, as a watchdog over physicians will have a very chilling or inhibitory effect on physicians aggressively treating patients ... with heavy doses of pain medication," said Thomas Reardon, president-elect of the American Medical Association.(29)

If federal legislation does pass, it will likely have a chilling effect on palliative care and provide further opportunities for litigation. Physicians are already providing too little pain relief to their dying patients. Studies show that about half of dying patients suffer unrelieved pain(30) and up to 90 percent suffer pain needlessly.(31)

In February 1999, a complaint was filed in the California case of Bergman v. Chin, claiming general and punitive damages for the defendants having caused the plaintiff "excruciating and unrelenting pain" as a result of undertreatment.(32) Plaintiff's co-counsel Kathryn Tucker of Seattle, who is also legal director of the national organization Compassion in Dying, hopes to develop a number of suits around the country that will make physicians more conscientious regarding pain relief. Realizing that one of the main causes of undertreatment is physician fear of discipline or prosecution for overprescription of scheduled drugs,(33) Tucker plans to challenge state regulatory procedures that discourage physicians from providing patients with all the pain medication they need.

Overly burdensome government regulation of physician prescribing may violate the U.S. Constitution. Opinions in Washington v. Glucksberg(34) and Vacco v. Quill,(35) the Supreme Court physician-assisted suicide decisions of 1997, suggested that dying patients may have a constitutional right to adequate pain relief.(36)

State regulation

In the meantime, some state regulators seem to have gotten the message that pain relief is high priority. In March 1999, the Oregon Board of Medical Examiners announced it would discipline a pulmonary disease specialist for repeated acts of negligence in giving patients substantially inadequate amounts of pain medication. A board spokesperson said, "In the area of pain medication, it's important for physicians to stay current and be addressing these needs for patients."(37)

Tucker and Alaska civil rights attorney Bob Wagstaff are representing two dying patients who have filed a suit in Anchorage.(38) The suit claims that Alaska laws prohibiting assisted suicide violate the state constitution's explicit right to privacy provision insofar as they deny the plaintiffs physician assistance in hastening death.(39)

Tucker, who was also plaintiffs' counsel in Glucksberg and Quill, is undaunted by the Supreme Court's rejection in those cases of such claims under the Fourteenth Amendment. State supreme courts are free to interpret state constitutions to provide greater protection for individual rights than the U.S. Constitution does. Indeed, the now well-established constitutional right of a patient to refuse all forms of life-prolonging treatment was developed by state supreme courts interpreting state constitutional provisions with the Fourteenth Amendment.

The New Jersey Supreme Court in In re Quinlan(40) and the Massachusetts Supreme Judicial Court in Superintendent of Belchertown State School v. Saikewicz(41) found a right to die without unwanted medical intervention in their state constitutions in 1976 and 1977. The U.S. Supreme Court did not follow suit under the U. S. Constitution until 1990 when it ruled in Cnazan v. Director, MDH.(42)

Finally, after the recent murder conviction of Dr. Jack Kevorkian for assisting in the death of Lou Gehrig's disease patient Thomas Youk, public opinion polls in the United States consistently show a high and increasing level of support for legalization and regulation of physician-assisted suicide. A Field poll taken after the conviction shows that support in California has increased in the last two years from 70 percent to 75 percent (from 61 percent to 68 percent among Roman Catholics).(43) An ABC News poll showed that 55 percent of the public disagreed with the jury's verdict, and only 39 percent agreed.(44) Four times previously, Kevorkian was prosecuted for his activities, and four times the prosecution failed. One case ended in a mistrial, and juries acquitted him in the other three.

In the first four cases, Kevorkian was represented by Michigan trial lawyer Geoffrey Fieger. In the most recent case, Kevorkian represented himself.

The major lesson of the conviction seems to be the old one about a litigant who represents himself having a fool for a client. Kevorkian has retained counsel to handle his appeal.

Notes

(1.) David Hendee, Deshler Man Calls Plea Right Thing "For the Kids," OMAHA WORLD HERALD, Feb. 8, 1999, at 9.

(2.) David Hendee, Accuracy of Slaying Victim Autopsy Questioned, OMAHA WORLD HERALD, Feb. 10, 1999, at 19.

(3.) Tom Gibb, Trial Ordered for Retiree Who Killed His Dying Wife, PITTSBURGH POSTGAZETTE, Aug. 6, 1998, at B4.

(4.) Tom Gibb, He Calls It Mercy, Jury Says Murder, PITTSBURGH POST-GAZETTE, Feb. 18, 1999, at C1.

(5.) Cathy Woodruff, A Final Breath Cloaked in Doubt, TIMES UNION (Albany, N.Y.), Jan. 17, 1999, at A1.

(6.) Del Quentin Wilber & Nancy A. Youssef, Son Spared Charges in Death; Grand Jury Declines to Indict in Case of Ailing Woman, 90, BALTIMORE SUN, Mar. 5, 1999, at 1B.

(7.) Sydney P. Freedberg, Murder or Mercy? ST. PETERSBURG TIMES, Jan. 31, 1999, at 1A.

(8.) Nicole Sterghos & Diane Lade, Judge Rules Wife Insane; She Tried to Kill Ill Husband, Herself, SUN-SENTINEL (Ft, Lauderdale, Fla.), Feb. 24,1999, at 1B.

(9.) Id.

(10.) Freedberg, supra note 7, at 1A.

(11.) Id.

(12.) Nicole Sterghos Brochu, Wife Avoids Charges in Death; Not Enough Evidence in Assisted-Suicide Case, Prosecutors Decide, SUN-SENTINEL (Ft. Lauderdale, Fla.), Dec. 19, 1998, at 1B.

(13.) Id.

(14.) Sterghos & Lade, supra note 8, at 1B.

(15.) Id.

(16.) OR. REV. STAT [subsections]127.800-127.897 (1987). The law's application was enjoined for three years after the initiative's 1994 passage because of alleged defects under the Fourteenth Amendment to the U.S. Constitution. See Lee v. Oregon, 107 F.3d 1382 (9th Cir.), cert. denied, 118 S. Ct. 328 (1999).

(17.) Erin Hoover, 2 Deaths Add New Angle to Debate, THE OREGONIAN, Mar. 27, 1998, at A1.

(18.) Id.

(19.) Michael Vitez, In Oregon, Some Find Comfort in Assisted-Suicide Option, PHILA. INQUIRER, Jan. 19, 1999, at A1.

(20.) Id.

(21.) Susan W. Tolle, Care of the Dying: Clinical and Financial Lessons from the Oregon Experience, 128 ANNALS INTERNAL MED. 567 (1998).

(22.) DRUG OPERATIONS SECTION, DRUG ENFORCEMENT AGENCY, ARCOS Q. REP. 4, 43-44 (1998).

(23.) Center for Ethics in Health Care, Oregon Health Sciences University School of Medicine, MC L101, 3181 S.W. Sam Jackson Park Rd., Portland, OR 97201-3098.

(24.) Arthur E. Chin et al., Legalized Physician-Assisted Suicide in Oregon--The First Year's Experience, 340 NEW ENG. J. MED. 577 (1999).

(25.) Id. at 583.

(26.) Erin Hoover Barnett, Coos County Drops Assisted-Suicide Inquiry, THE OREGONIAN, Mar. 17, 1999, at D1.

(27.) H.R. 4006, 105th Cong., 2d Sess. (1998).

(28.) 21 U.S.C. [sections] 824(a) (1994).

(29.) Morning Edition (NPR transcript, broadcast Aug. 31, 1998).

(30.) See A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients (SUPPORT Study), 274 JAMA 1591 (1995).

(31.) See, e.g., Ada K. Jacox et al., New Clinical-Practice Guidelines for the Management of Pain in Patients with Cancer, 330 NEW ENG. J. MED. 651 (1994); David Joranson et al., Opioids for Chronic Cancer and Non-Cancer Pain: A Survey of State Medical Board Members, 79 FED'N BULL.: MED. LICENSURE & DISCIPLINE 15 (1992).

(32.) Bergman v. Chin, No. H205732-1 (Cal. Super. Ct. filed Feb. 16, 1999).

(33.) See, e.g., Robyn S. Shapiro, Health Care Providers' Liability Exposure for Inappropriate Pain Management, 24 J.L. MED. & ETHICS 360, 363 (1996); David Joranson, State Medical Board Guidelines for Treatment of Intractable Pain, AM. PAIN SOC'Y BULL., May/June 1995, at 2.

(34.) 521 U.S. 702 (1997).

(35.) 521 U.S. 793 (1997).

(36.) See Robert A. Burt, The Supreme Court Speaks--Not Assisted Suicide but a Constitutional Right to Palliative Care, 337 NEW ENG. J. MED. 1234 (1997).

(37.) Erin Hoover Barnett, Roseburg Doctor Faces Penalty on Pain Control, THE OREGONIAN, Mar. 27, 1999, at D1.

(38.) Sampson v. Alaska, No. 3AN-98-11288 CML (Alaska Super. Ct. filed Dec. 15,1998).

(39.) ALASKA CONST., Art. I, [sections] 22: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section." In Ravin v. State, 537 P.2d 494, 504, 511 (Alaska 1975), the Alaska Supreme Court held, "This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, noncommercial context in the home." The court concluded on the facts of the case that "no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown."

(40.) 348 A.2d 801 (N.J.), cert. denied, 429 U.S. 922 (1976).

(41.) 370 N.E.2d 417 (Mass. 1977).

(42.) 497 U.S. 261 (1990).

(43.) Field Poll press release, Apr. 21, 1999; see also Assembly Panel OKs Assisted-Suicide Bill, S.F. CHRON., Apr. 21, 1999, at A1.

(44.) ABC News press release, Apr. 12, 1999.

Charles H. Baron is a law professor at Boston College Law School and co-author of A Model State Act to Legalize and Regulate Physician-Assisted Suicide (33 Harv. J. Leg. 1 (1996)).
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Author:Baron, Charles H.
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Date:Jul 1, 1999
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