Judge Rejects Motion to Dismiss Suit to Authorize Medical Aid in Dying in Mass.

June 5, 2017

(Boston, Mass. – June 6, 2017) A Massachusetts judge rejected a motion to dismiss a lawsuit asserting the state constitution protects, and existing state law does not bar, doctors in Massachusetts who provide medical aid in dying for mentally capable, terminally ill adults. Compassion & Choices filed the lawsuit on behalf of two Barnstable County physicians, Alan Steinbach and Roger Kligler.

Suffolk County Superior Court Judge Mary K. Ames affirmed Dr. Kligler’s and Dr. Steinbach’s right to advance the case to reach a decision on whether terminally ill patients have a constitutional right to the option of medical aid in dying.

Dr. Steinbach wants to support his patients by counseling them on the full range of end-of-life options including medical aid in dying. If the patient chooses medical aid in dying then, pursuant to the medical standard of care, he wants to be able to write them a prescription.

Dr. Kligler is suffering from stage 4 (terminal) metastatic prostate cancer. He wants this option to request prescription medication he can decide to take if his suffering becomes intolerable so he can die peacefully in his sleep, at home, with his wife, Cathy, by his bedside. (Note: Dr. Steinbach is not Dr. Kligler’s physician).

“My wife Cathy and I are elated with this initial ruling in my favor,” said Dr. Kligler, who attended the hearing with his wife Cathy. “As a physician who has treated numerous terminally ill adults, I know medical aid in dying provides peace of mind for many dying patients. I do not know if I would use this option, but I want it for myself if my suffering becomes intolerable at the end of my life.”

Dr. Kligler and Dr. Steinbach seek a legal declaration that medical aid in dying is not a crime in Massachusetts since there is no state law that specifically prohibits practicing medical aid in dying. Even if it were, such a law would violate the Massachusetts Constitution. Two days after Compassion & Choices filed the suit in October, Cape & Island District Attorney Michael O’Keefe told the Cape Cod Times that if a physician provided medical aid in dying in his jurisdiction, it would result in the charge of murder. Dr. Kligler and Dr. Steinbach also seek an injunction prohibiting the defendants, Attorney General Maura Healey and Cape & Islands District Attorney Michael O’Keefe, from prosecuting physicians who provide medical aid in dying, because they assert such prosecution is unlawful and unconstitutional.

“We are pleased with the court’s decision because it will allow our clients to challenge the constitutionality of the law without having to take actions that could risk prosecution by an aggressive district attorney,” said John Kappos, a partner at O’Melveny, who worked with law firm Morgan Lewis to help Compassion & Choices file the suit on behalf of Dr. Kligler and Dr. Steinbach. “We need the court to clarify the law because the prosecution threat is real to physicians who provide medical aid in dying to terminally ill patients … and patients’ senseless suffering without this option is equally real.”

“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 Kevin Díaz, national director of legal advocacy for Compassion & Choices. “We look forward to making our case that there is no rational or meaningful basis to deny medical aid in dying for a terminally ill patient who requests this option to end unbearable suffering.”

The plaintiffs’ memorandum opposing the motion to dismiss the lawsuit is posted HERE.

The court’s memorandum of decision and order on defendants’ motion to dismiss is posted HERE.

Compassion & Choices
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VICTORY: Colorado Gov. Jared Polis signed the improved End-of-Life Options Act.