Lawsuit seeks to prove legality of Massachusetts physician-assisted suicide

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BOSTON — A pair of Cape Cod doctors, one suffering from terminal cancer, have filed a lawsuit in Suffolk County Superior Court as part of an effort to prove that physician-assisted suicide is not a crime in the Bay State.

Falmouth resident Dr. Roger Kligler, diagnosed with stage 4 metastatic prostate cancer, is named as a plaintiff in the suit along with Woods Hole Dr. Alan Steinbach, who runs a family practice.

“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,” Kligler is quoted as saying in a press release issued by the Colorado-based Compassion & Choices nonprofit advocacy group, which has filed the complaint on his and Steinbach’s behalf. “It would alleviate my anxiety about the dying process and allow me to live my final days more fully confidant that I would not have to suffer needlessly.”

Specifically, the lawsuit intends to establish “that medical aid in dying is not a criminal offense” in Massachusetts and seeks “a declaration that prosecution of physicians who provide medical aid in dying is unlawful and unconstitutional as applied to physicians who aid mentally competent, terminally ill adults by providing that the patients can self-administer if and when their suffering becomes unbearable.”

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Compassion & Choices scored a victory in 2009 when the Montana State Supreme Court ruled that while the state’s constitution did not guarantee a right to physician-assisted suicide, it also lacked any statutes that could deem the practice criminal.

Named in the lawsuit as defendants are Attorney General Maura Healey and Cape and Islands District Attorney Michael O’Keefe due to their roles as the prosecuting authorities. Citing Kligler’s failing health, Compassion & Choices has requested to expedite court scheduling.

Like the Montana case, the lawsuit claims that Massachusetts lacks any “statutory provisions,” or laws, criminalizing “medical aid in dying.”

“Nor is there a statutory provision that prohibits medical aid in another person’s suicide when such aid is provided with the intent to alleviate suffering pursuant to a medical standard of care,” the lawsuit adds.

The lawsuit does note, however, previous cases in which the state has charged those who have been proven to have aided in another’s suicide with involuntary manslaughter, an action that lawyers representing Kliger and Steinbach described as a “prosecutable offense.”

“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, according to a prepared statement. “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.”

O’Keefe told the Cape Cod Times that while he’s sympathetic to the issue, laws do exist prohibiting physician-assisted suicide. He also pointed to the medical profession’s time-honored Hippocratic oath, which is, “first do no harm.”

In an interview with the Boston Globe, Kevin Díaz, national director of legal advocacy for Compassion & Choices, cited a case involving a teen proven to have helped convince her mentally-ill boyfriend to kill himself. This past summer, the Supreme Judicial Court ruled that prosecutors could charge 19-year-old Michelle Carter with involuntary manslaughter.

Díaz told the Globe that because justices ruled that Carter’s role did not involve trying to ease her boyfriend’s suffering, there was an opportunity to go forward with the lawsuit.

Healey’s office has declined to comment on the case.

O’Keefe added that he believes physician-assisted suicide to be illegal until the state Legislature passes a law telling him otherwise.

Last November a physician-assisted suicide bill drew a horde of people to Beacon Hill who testified both for and against. The bill, however, quietly failed to move out of committee in June, marking the fourth such time since 2011 that the proposal has died.

Read a copy of the lawsuit:

2016-10-24 Compassion Choices Massachusetts Complaint by Evan on Scribd