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April 29, 1999

Hastening death: Courts generally have supported such rights, ethicist says

Hastening death: Courts generally have supported such rights, ethicist says

In this country, doctors have aided in hastening the death of terminally ill patients with the blessing of the law since the 1976 Karen Quinlan case in New Jersey.

Last month, Jack Kevorkian, previously acquitted on assisted-suicide charges three times, was convicted by a Michigan jury of second-degree homicide for delivery of a controlled substance that led to a fatality. On April 13, he was sentenced to 10-25 years in prison, although he faced a possible life term.

Alan Meisel, a Pitt law professor who specializes in health law and medical ethics, argued that in legal terms Kevorkian's actions represented "a difference without a distinction" from the court-approved assisted suicides of the past 25 years.

Meisel was the speaker April 8 at a bioethics lecture/discussion on the topic: "Is there a difference between actively and passively hastening death?" He maintained that it was splitting legal hairs to make a distinction between a "lethal prescription," that is, medicine given to relieve pain during an assisted suicide, and a "lethal injection," which the Michigan jury said represented murder on Kevorkian's part.

Suicide, from the Latin for self-killing, used to be illegal in the U.S. but is no longer, Meisel said. However, assisted suicide is illegal in every state but Oregon, which recently passed a law allowing it within certain limitations.

Euthanasia — Greek for "good death" — is the act of inducing the painless death of a person for reasons assumed to be merciful. It is illegal nationwide.

"In 1990, along comes this fellow Kevorkian," Meisel said. "He goes on the Donahue show and advertises his 'wares.' Later, he assists a woman, Janet Adkins, by providing a machine that she can push a button and inject herself, ending her life.

"Janet Adkins is a woman with Alzheimer's disease, but not in the later stages. She says, 'I don't want to become any more demented than I am, because I might lose my ability to control death later on. Better to check out sooner than later.'"

Kevorkian claims to have aided 130 people in life-ending/hastening death procedures. He maintains that he's recognizing patients' rights and that his intent is to stop suffering, Meisel said. P> "This leads to the 'principle of double effect': If a patient dies inadvertently or accidentally from an injection, it is not criminal; relieving suffering is the intent."

But Meisel said there is still the other half of the question: Suppose Kevorkian himself provides the injection, as he did in the recent case of Thomas Youk, whose actively hastened death Kevorkian taped and CBS played on "60 Minutes." Youk, 52, was suffering from Lou Gehrig's disease.

"Courts have found that there are no legal barriers to adequate pain relief application. So, if relieving suffering is the intent of the injection, how is this any different? What Kevorkian was convicted of is not assisted suicide, but mercy killing."

Why is one legally legitimate and the other not? Meisel asked, believing that they both should be legitimized under the law if the patient is evoking the right to die and the doctor intends to end suffering.

Meisel referred to several cases that focus on the legal gray areas of assisted suicide: Is there a legal difference between unplugging a ventilator and dismantling a feeding tube? Between stopping a treatment and injecting a potential lethal dose of pain killers? Between consent of the patient and "substituted judgment" consent when a patient is not of sound mind? Between the right to refuse treatment and the interest of the state in citizens' welfare?

In 1997, the U.S. Supreme Court ruled that states could enact laws against assisted suicide, but that it was a state-by-state choice.

In the 1980 Florida case of Satz v. Perlmutter, a terminally ill, ventilator-dependent patient sued to have his ventilator disconnected. But, physically, Perlmutter was incapable of removing the ventilator himself, so he requested that a doctor do it for him.

The Florida Supreme Court ruled that because there was the right to refuse treatment (in this case, the ventilator), if that right could not be effectuated, it became an empty right. The court allowed a doctor to hasten death.

"How is this different: the passive right to refuse treatment versus an act of intervention?" Meisel asked.

According to Meisel, the court decided that this was not really suicide because the actions of the patient and doctor did not literally cause death — instead the cause was the disease the patient had. In other words, he died of "natural causes."

"As I'm fond of saying, 'You can't indict Mother Nature,'" Meisel said.

A 1989 case, State of Georgia v. McAfee, involved approval of a device that would allow a terminally ill quadriplegic to end his own life.

But realizing that by using the device McAfee would open himself to a period of suffering before death, he sued to have a doctor's assistance during the process. What he wanted was pain medication to relieve suffering while he was dying. "The court ruled that it was okay if the intent of the medication was not to kill, so the doctor was not culpable," Meisel said.

In a 1986 California case, a bed-ridden woman in her 30s with cerebral palsy said she didn't want to continue to live under those conditions. The woman was not receiving any treatment except for a feeding tube. She was not, in fact, terminally ill, and could have expected a life-span, with the feeding tube, of 30-plus more years.

The California courts ruled that the feeding tube represented a form of medical treatment that she had the right to refuse as "an unwanted invasion of bodily integrity." Again, the woman was permitted to die. The courts said it was not a suicide, but a death caused by the underlying disease.

"This was applying a 1914 decision that a person of adult years and sound mind has the right to say what goes into the body," Meisel said. "But you can see why doctors seek legal rulings before acting and why [some] judges feel guilty [about their decisions]," he said.

In a twist on the latter case, a Florida court ruled in 1989 that, while a Jehovah's Witness patient had the right to refuse a blood transfusion that would probably save her from death from a bleeding ulcer, the state had an overriding interest in protecting the woman's minor children, who would be best served by forcing treatment on their mother.

"The courts have almost always found a way to insist on treatment for [these cases]. They have found for a right to refuse treatment, but then discovered ways to evade it," Meisel said. "But even though everyone's heard of these cases, there really have been only a half-dozen or so of them over the years."

When, if ever, is a doctor guilty of murder for hastening death?

The legal definition of murder has four components: the act, the intent, the cause and the result, Meisel said. "Doctors can characterize 'cause of death' so that it isn't murder; the cause is instead the underlying disease and [the doctor's actions] are to let nature take its course.

"Courts have usually said that it is not murder because it was not the intent [to kill]. You only need to eliminate one of the four [components] for it not to be murder. Occasionally, courts have said it was not an act of murder or the actions did not cause death. With intent, you can have the purpose be to relieve suffering or to honor the patient's wishes — anything but to kill them."

Meisel went on to say, though, that in his view many of these same cases fit the definition of murder. "But we don't treat them criminally because of consent of the patients. In the Quinlan case, it was the consent of the parents of the patient," he said.

During the Quinlan case, the court heard testimony from the parents that she would not want to live in a permanent vegetative state. "The parents wanted life-support discontinued," Meisel said. "The patient was of adult years, but certainly not of sound mind. The court let the parents decide, which has become known as the 'substituted judgment principle.'"

Almost all of these cases show that society is moving toward a legal legitimizing of hastened death and recognition of a patient's right to die, Meisel said.

"I realize I haven't proved my case in this short time," he said concluding the hour-long forum. "But these are flimsy distinctions. The courts have been interested in results-oriented decisions. I think you can make the argument [in the recent Kevorkian case] that the underlying cause of death is the patient's condition, not Kevorkian's activity, and that it should be [legally] legitimized by voluntary informed consent."

After the discussion, Meisel told the University Times he thought Kevorkian would lose on appeal and that the Michigan Supreme Court would refuse to hear the case. "Partly because of Kevorkian's arrogance and partly because the courts know that [if freed] he'll just keep doing it," Meisel said. "They finally had a jury convict him, and I think it will stick."

–Peter Hart

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