Beyond Death with Dignity
James D. Standish July/August 1999 Dr. Andrew Gotts[0] is a neurologist who practices in Washington State. Among his patients are some who have ALS (a.k.a. Lou Gehrig's disease). During his career he has often had to deal with the complex issues that patients and their families face when ALS progresses to the terminal phase in which the patient's body slowly closes down: the patient suffering, the family grief, and the inevitable question--when and how will this suffering end?In Michigan one physician has an answer: the suffering can end any time the patient would like. The doctor's name is Jack Kevorkian, and his answer is physician-assisted suicide. Of the patients Dr. Kevorkian helped commit suicide through 1996, almost 20 percent suffered from ALS. Dr. Gotts knows the moment physician-assisted suicide is legalized, he will be placed on the front line of the physician-assisted suicide controversy. He also knows that the creation of the legal option for physician-assisted suicide may place him and thousands of other physicians between their patient's legally sanctioned treatment option, and their own religious principles.
"Passports for Life"
The legalization of a right to physician-assisted dying opens up a plethora of murky issues to the physicians, hospitals, and patients whose religious beliefs forbid them from participating in the process. Of all these, the most severe invasion of religious freedom made possible by the legalization of physician-assisted dying is the possibility of lethal treatment administered without the patient's true consent. This threat could occur three ways: a physician could practice nonvoluntary euthanasia, involuntary euthanasia,[1] or a patient could be coerced to agree to request life-ending treatment.
The legalization of euthanasia presents the possibility that once the license for voluntary euthanasia has been granted, nonvoluntary and involuntary euthanasia may follow either as an abuse of the law, or because of the natural progression of societal and legal norms from the absolute protection of human life to the utilitarian balancing of human life against society's interests. In the Netherlands voluntary euthanasia is permitted under a 1981 agreement between the Royal Dutch Medical Society and Dutch prosecutors if it is done according to strict guidelines, which are similar to those many have proposed for America (e.g., the patient must make an informed decision and provide free and explicit consent, and this must be repeated over time). Yet the practice of nonvoluntary and involuntary euthanasia is endemic. In 1990 a report concerning euthanasia in the Netherlands found that of the roughly 3,600 cases of euthanasia and physician-assisted dying per year, approximately 1,000 of the instances involved nonvoluntary or involuntary euthanasia.[2] Even more startling are the specific instances in which physicians have placed their decision-making authority above the patient's.
The situation in the Netherlands has digressed to the point that patients who do not want to risk involuntary euthanasia have formed the Dutch Patient's Association, which fields inquiries of patients wanting to know which hospitals are unlikely to practice involuntary or nonvoluntary euthanasia.[3] Patients have also resorted to carrying a "passport for life," which indicates that they do not want their life terminated without their consent.
It is impossible to know whether the U.S. would follow the trend that has occurred in the Netherlands; nevertheless, the Dutch experience, in which people of faith opposed to euthanasia feel compelled to carry written instructions to prevent it from being practiced upon them, does, indeed, provide a cautionary tale.
Coerced Consent
Besides involuntary and nonvoluntary euthanasia, there lurks the danger of coerced consent. All legislation concerning physician-assisted dying requires that a patient consent. But even when a consent is obtained, could the consent be involuntary? Dr. Eric Chevlen, an oncologist in Youngstown Ohio, wrote: "I now know that regardless of informed con sent, it's doctors who make a patient's decision for them--often life-or death ones. . . . I've come to realize that most people can't really give informed consent. [Patients do not fully understand treatment options and often they are too physically ill and psychologically upset to make an informed decision.] Explicitly or implicitly they say, 'Whatever you say, Doc.' Informed consent is a sham, behind which doctors may hide the awful fact that it is really they who make the life-and-death decisions for their patients. . . . Legalized euthanasia is no freedom to choose; it is not even freedom to die. It is freedom to be killed."[4]
In addition to whether or not patients are in a position to give informed consent, many patients' consent may be colored by financial or family issues. In countries with universal health care and a more generous social welfare system, like the Nether-lands, patients may feel less of a burden to their families during long, terminal illnesses. In the U.S., however, a study in Washington State found that 75 percent of the people who asked their physician for help in dying did so because they feared burdening their families.[5] When the financial pressure is added to the obvious strain suffering causes to families and, in some cases, a desire by family members to inherit, the pressure may become too much for patients and therefore they request the termination of their lives, even though such a request violates their faith.
The pressure may also be applied by the patient's health plan. The California Nurses Association has advocated against the legalization of physician-assisted dying because, among other things, they note that long-term health care to the dying isn't profitable. Precisely how the legalization of physician-assisted dying will impact on patient insurance is yet to be determined, but it is inevitable that without legislation, the market will reward the insurance company that can figure out a way to encourage its terminal patients to request physician-assisted dying.
Slippery Slopes?
With the passage of each new ruling that liberalizes controversial moral issues comes an accompanied body of common law that creates new legal perils. Though the purpose of this article is not to comment upon the judicial or moral correctness of abortion, the legal right to an abortion does provide a perfect example. When the Supreme Court found that such a right existed, it could barely have imagined the tort ramifications of its decisions. Indeed, the creation of the legal right to an abortion was accompanied by the development of two new tort actions: the tort of wrongful life, and the tort of wrongful birth. The tort of wrongful life awards damages for the pain and suffering that accompanies a disabled child through their life. This controversial action, recognized in New Jersey, California, and Washington, essentially awards damages to a child (who is born imperfect) for actually being born rather than being aborted. A wrongful birth action, which generally accompanies a wrongful life action, is based on the parent's emotional distress and economic hardship associated with the birth of a child whom they would have aborted had they known of the abnormalities in question.
The development of these torts is a natural progression from the legalization of abortion. Once someone has the right to an abortion, any medical decision that in some way impacts on this right may result in a malpractice case. If, for example, a physician fails to inform the mother of a test for Down's syndrome, and a baby is born with the syndrome, in some states the mother can sue the physician. After all, if the physician had informed her of the test, she would have taken it; and if she had taken it, she would have discovered that her child had Down's syndrome and aborted it. The physician's malpractice resulted in the birth of a child she now has to care for, along with the emotional burden of caring for a mentally disabled child.
Another tort area of tort litigation has developed subsequent to the Supreme Court's finding that there is a right to refuse medical treatment. Patients have sued their physicians for the tort of battery when the physician has provided medical care to them against their will. Another variant is demonstrated by a recent case based on the right to refuse treatment.
On January 16, 1998, a jury in Texas awarded $42.9 million in damages against Columbia/HCA, because Columbia/HCA had saved the life of a child. The parents of the child sued, because they had requested that the medical professionals involved provide no artificial efforts to save the life of the premature, retarded child. The professionals involved did, however, provide care--and were found liable by a jury as a result. The jury award was based primarily on the wrongful life and wrongful birth formula discussed above.
As with abortion and the right to refuse treatment, there will be a natural progression from the legalization of physician-assisted suicide to the development of new tort actions. Until then, it is impossible to predict what the new tort actions will be, but possible developments would have a dramatic impact on the rights of health-care providers to refuse--on religious grounds--to participate in physician-assisted dying. U.S. News & World Report noted that "surprisingly, only 37 percent [of the Dutch patients] who request help in dying actually get it. . . . Unlike what might be expected in America, however, the other 63 percent do not respond by going to court."
But how could the "other 63 percent" sue their physician or hospital for not killing them? Before a physician can be sued to the tort of malpractice, the plaintiff must establish that the physician violated the prevailing standard of medical care. This simply means that a physician will not be found liable for malpractice unless he or she is found by a jury to have acted outside the customary practice of the medical profession. This presents a major problem: the moment that physician-assisted dying is legalized, it is likely that a trend will have begun that will end with physician-assisted dying becoming the customary practice of the medical profession when faced with a patient who meets the statutory-defined guidelines to receive it. If this occurs, a physician's refusal to participate--for religious reasons--in physician-assisted suicide or voluntary euthanasia may open them to malpractice liability just as the physician who provides unwanted care may now be liable.
The likelihood of potential tort liability for health-care providers whose religious faith prevents them from participating in physician-assisted suicide is tacitly acknowledged in the controversial Oregon "Death With Dignity Act." It contains in its "Immunities and Liabilities" section a provision that notes that "no health-care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life. . . . If a health-care provider is unable or unwilling to carry out a patient's request . . . and the patient transfers his or her care to a new health-care provider, the prior health-care provider shall transfer, upon request, a copy of the patient's relevant medical records to a new health care provider."
This type of state immunity provision does not resolve three important issues. First, state-by-state implementation of physician-assisted suicide statutes does not guarantee that all states will provide such protection. Second, the Act mandates that a conscientious objector physician is legally required to cooperate in the physician-assisted suicide process by transferring care and assisting with the provision of records (which legally belong to the patient). Third, it is not inconceivable that a physician could believe that he or she can have no part at all in the process of ending a life. If a physician did so, Oregon law would find such a refusal to act illegal.
Dying for Dollars?
Health care is becoming an increasingly cost-conscious business, which has led to insurance companies (including HMOs) contracting with physicians and hospitals to ensure they get competitive prices for treatment, with health-care professionals providing as little expensive care as possible. Not surprisingly, physician-assisted suicide and voluntary euthanasia have the potential to be extremely cost-effective "treatments" for patients with terminal diseases. Kathleen Foley, director of Pain Service at New York's Memorial-Sloan Kettering Cancer Center, was quoted in Business & Health as saying that "my worry is that it's going to be cheaper to kill people than to care for them when they're dying." This would present a major problem to physicians and hospitals who refuse to participate in ending the lives of their patients in the event physician-assisted suicide and voluntary euthanasia are legalized; they would no longer be economically competitive with hospitals and physicians who practice euthanasia.
Many physicians and hospitals are paid a fixed dollar amount by managed-care plans to take care of all the medical needs of their patients. Thus, if they provide a lot of expensive care, they can lose money. If, on the other hand, they provide care economically, they can do well. In response, hospitals have attempted to reduce the amount of unnecessary care provided, and streamline their care giving to ensure they can economically sustain themselves.
Physician-assisted dying, however, creates a whole new issue. The hospital who is willing to participate in the killing of its patients will, by default, ensure it has lower costs on average than a hospital that provides high-quality care until their patients die from natural causes. The result will be to place enormous economic pressure on religious physicians and hospitals to participate in
physician-assisted dying.
Economic realities surrounding the legalization of physician-assisted dying do not end with managed-care companies. There remains the issue of employment. With the increasing density of health-care professionals to the general populations, the individual health-care provider is becoming increasingly expendable. Thus, the nurse who refuses to prepare the lethal injection on the basis that it violates his religion, the physician who refuses to perform euthanasia while she is on call for a group, or the physician employee of an HMO who refuses to participate in physician assisted suicide could lose their jobs. While there are legal protections for employees, it is highly questionable whether these would ensure that no action could be taken against health-care professionals who refuse to provide legal "treatment" that will likely become the customary standard of care.
Professor Destro of the Columbus School of Law notes that the realities of firings because of a refusal to participate in abortions and sterilizations have already occurred for observant Catholic health-care providers. Employment protection for health-care workers negatively impacted in this manner could be enacted, but once again, there is no assurance such laws would accompany the legalization of physician assisted dying.
Economics can be as effective as direct laws in placing pressure on religions to act in a particular way. The legalization of physician assisted dying will likely place tremendous economic pressure on health care providers, and thereby coerce them to participate in something their religious principles forbid.
Final Closure
The debate regarding the legalization of physician-assisted suicide and voluntary euthanasia is incomplete until the impact on religious liberty is considered. Such legalization could lead to the following:
1. Malpractice liability for both health-care providers and hospitals who refuse on religious grounds to participate in the administration of suicide may be initiated.
2. Collaboration in the suicide may be mandated, and in such case, a refusal on religious grounds to aid and abet the process through transferring files, arranging for transfer to another hospital, and finding alternate providers who participate may result in prosecution.
3. The economic impact on religious-based physicians and hospitals who refuse on religious grounds to participate in physician-assisted dying may ensure that such systems can no longer attract patients, as insurance companies will not pay average additional costs incurred for providing care to the dying to all patients cared for, rather than the fraction who decide not to receive euthanasia.
4. Health-care professionals may find that their jobs are threatened if they do not participate in physician-assisted dying because of their religious principles.
Though all of these issues could conceivably be taken care of through careful drafting of legislation, to date this has not occurred, as evidenced by Oregon's statute. If such infringements are to be avoided, those concerned must draw attention to these issues within the larger debate. This is particularly true now that Oregon has chosen its path. Even if all of the preceding issues were resolved, however, there remains the issue of the nonvoluntary euthanasia, involuntary euthanasia, and coercion through pressure from physicians, finances, and familial pressures, during a period of immense stress that by its very nature coerces a patient to consent to suicide even if it is against their faith and against their will. It is difficult to imagine the comprehensiveness of the legislative scheme, the vigorousness of regulatory compliance, and the level of societal vigilance necessary to ensure these abuses do not occur.
Society must always remain watchful against movements that intend to impose their religious/moral views on others. But it must be equally prudent in its approach to issues that appear to be a simple case of individual autonomy, but that have complex and pervasive effects upon society as a whole (e.g., legalization of narcotics, legalization of prostitution). These issues should only be acted upon once they are fully understood and their alternatives thoroughly investigated. Society has yet to evaluate effectively the impact on religious freedom the legalization of physician-assisted dying will have. The experience in the Netherlands, the economics of health care, and judicial experience all tend toward the conclusion that any legalization of physician-assisted dying can only come at the expense of some religious freedom. Physician assisted dying has been presented as a simple issue of individual autonomy, but its impact will likely be felt not only on the rights of how those who object to it live, but on how we die.
Meanwhile, in June, Attorney General Janet Reno decided that physicians who participate in physician-assisted suicide in Oregon will not be prosecuted. The Drug Enforcement Agency has taken the opposite view, stating that the use of controlled substances in physician-assisted suicide is a violation of federal drug laws. A Senate bill that would have outlawed physician-assisted suicide was withdrawn in October of this past year. It appears likely that there will be federal legislation dealing with physician-assisted suicide in the next few years, although it is impossible to predict what effect this legislation will have on Oregon's law or the expansion of physician-assisted suicide into other states.
James Standish is in his third year of law at Georgetown University. Prior to enrollment in law school he received a B.B.A. from Newbold College, England, and an M.B.A. from the University of Virginia, and worked for five years in health-care administration.
ENDNOTES
[0]. Name slightly altered to protect privacy.
[1].Nonvoluntary euthanasia: A physician administers life- ending treatment to a patient who is incapable of giving permission; e.g., a person other than the patient approves the administration of a lethal injection of narcotics to a patient with Alzheimer's disease. Involuntary euthanasia: A physician administers life-ending treatment to a patient without the patient's permission, e.g., a patient is not capable of making the decision, and therefore the physician decides to end the patient's life.
[2]. Ezekiel Emanuel, "Whose Right to Die?" Atlantic Monthly, March 1997, pp. 73, 77.
[3]. Ibid., p. 99.
[4]. Eric Chevlen, "Euthanasia Promises Marcus Welby, but Gives Us Jack Kevorkian," Medical Economics, Jan. 9, 1995, pp. 25, 26, 28.
[5]. Joseph P. Shapiro, "Euthanasia's Home," U.S. News & World Report, Jan. 13, 1997, pp. 24, 26.