Falmouth doctor files lawsuit seeking right to die: ‘It’s an option that I want to have’

October 26, 2016

This article originally appeared in the Boston Globe on October 26, 2016

Dr. Roger Kligler during treatment.

A retired Falmouth physician, who has metastatic prostate cancer, filed a lawsuit this week in Suffolk Superior Court in Boston asserting he has a constitutional right to obtain a lethal dose of medication from his doctor and choose when he dies to avoid needless suffering.

Dr. Roger M. Kligler, a longtime advocate of expanding end-of-life options laws nationwide, asked a judge to affirm his right to die in this way and to prevent prosecution of doctors who assist. Dr. Alan Steinbach, a physician who wants the option to provide such medication to patients with terminal illnesses like Kligler, is also a plaintiff in the lawsuit.

This legal approach was used successfully in Montana to expand its right-to-die options. Four other states — Oregon, Washington, California, and Vermont — have passed laws through legislation or ballot measures allowing doctors to assist in such patient deaths.

Kligler, 64, in a telephone interview from his home, said that as a physician, he has witnessed the misery of patients dealing with the final stages of cancer. Now that he has advanced cancer himself, he wants some control over his own death through self-administration of medication.

“It’s an option that I want to have,” said Kligler, who practiced primarily in Brockton before retiring.

The suit ultimately seeks “clarification of what is allowed and not allowed” in Massachusetts, said Kevin Diaz, national director of legal advocacy for Compassion & Choices, which helped file the lawsuit. He said there is no law on the books in this state that explicitly prohibits a doctor from aiding terminally ill patients who want to hasten their own death.

Attorney General Maura Healey and Cape & Islands District Attorney Michael O’Keefe are both named as defendants in the case.

Massachusetts has so far pushed back against efforts to enact such laws, often also referred to as “physician-assisted suicide.” A 2012 “Death with Dignity” ballot initiative in Massachusetts narrowly failed, led by opponents who said such laws are immoral or worry they could be abused by family members who might become beneficiaries of a patient’s death. The Roman Catholic Archdiocese of Boston contributed significant funds to defeat the measure.

A state law allowing for such “Death with Dignity” provisions has also repeatedly stalled in the Legislature. These proposals, as well as the laws in other states, typically call for a number of safeguards to ensure that patients are cognitively fit to make the decision and are not being exploited.

Diaz said his nonprofit group chose to file the lawsuit Monday because of Kligler’s deteriorating health, as well as a legal development in a separate criminal case in July that led them to think the Massachusetts courts might be receptive to their arguments.

In the case in question, the Supreme Judicial Court affirmed prosecutors’ rights to bring involuntary manslaughter charges against Michelle Carter, 19, of Plainville for her role in allegedly persuading or encouraging an 18-year-old friend, Conrad Ray III of Mattapoisett, to kill himself. Ray died in July 2014 of carbon monoxide poisoning from his truck.

In the ruling, the justices noted that the case was “not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life” and was not about a person “offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her own life.”

After reading that ruling, Diaz said, his organization thought it might be a good time to bring a legal action because the justices appeared to understand the complexities of this issue of taking one’s own life.

Compassion & Choices initiated a similar legal strategy in Montana, with considerable success, said Sean Crowley, its spokesman. He said the group brought a lawsuit on behalf of a terminally ill patient, and the state’s Supreme Court ruled in 2009 that physicians who assisted in such deaths could be shielded from liability as long as patients gave explicit consent.

Crowley also said that while efforts to pass a state law in Montana codifying this option have thus far failed, its state’s high court ruling has been important protection for physicians in these cases, and he knows of no prosecutions that have been brought against doctors.

Diaz said he is prepared to bring this Massachusetts case to the state’s highest court if necessary.

O’Keefe told the Globe that he sees dim prospects for this lawsuit, as he anticipates that all state judges will be loath to “intrude into the legislative function” on such a sensitive issue. He said he sympathizes with the plight of gravely ill people such as Kligler; however, he believes the issue should be settled by state lawmakers.

Asked if he would prosecute Kligler’s physician if he knew that Kligler had died and the doctor had provided drugs for the death, O’Keefe replied, “We don’t answer ‘if’s.” Healey’s office declined to comment.

Diaz said he is optimistic that national trends show more public acceptance of these laws, and his interpretation of the high court decision in Massachusetts involving the teenagers led his group to believe this state might be ready for change.

Linda McClain, a Boston University law professor who has studied changes in laws related to same-sex relationships and other social movements, said advocacy groups often try to analyze hidden meanings in legal rulings, even ones only indirectly related to their issue.

She said she can’t judge whether this group seeking to expand end-of-life options is accurately detecting the sentiments of judges, but it’s a logical thing to try.

“Social change lawyers work with what they can,” she said. “People are always trying to read the tea leaves.”

Compassion & Choices
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Patricia A. González-Portillo
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