Patient Advocacy Groups Welcome Federal Court Ruling Clarifying that Consent Agreement About Doctor-Patient Conversations “Does Not Represent” Court’s Views

Groups Emphasize Vermont Law Still Requires Doctors to Inform Patients of All End-of-Life Options, Including Medical Aid in Dying
December 20, 2017

Kevin Diaz, National Director of Legal Advocacy Compassion & Choices

Two patient advocacy groups today welcomed a federal judge’s  ruling that the Vermont Attorney General’s consent agreement with physician plaintiffs “does not represent” the court’s views in a dismissed lawsuit that sought to weaken the doctors’ duty to inform patients about all of their end-of-life care options.

The two organizations, Compassion & Choices and Patient Choices Vermont, emphasized that this ruling leaves intact a doctor’s duty to obtain informed consent from patients by providing all their end-of-life medical options.  

The groups intervened in the suit and filed the motion to strike the consent agreement from the court record because it caused confusion about physician obligations to patients under Vermont law, including the 2013 Patient Choice at End of Life Act (Act 39). The law gives mentally capable, terminally ill adults in Vermont the option to receive a doctor’s prescription for medication they can decide to take to end unbearable suffering and die peacefully in their sleep. The plaintiffs’ misrepresentation of the court’s dismissal of the case only worsened this confusion.

In his Dec. 18 ruling, U.S. District Court Judge Geoffrey W. Crawford concluded:

“The agreement does not represent the views of the court on the merits of the parties’ dispute … The consent agreement is a purely private agreement-not a judicial ruling-and not subject to review on appeal. But it is far from inconsequential and maintaining it on the court’s docket has value in informing the public of the terms of the settlement struck by the parties.”

“Judge Crawford’s original ruling dismissed the plaintiffs’ case for lack of standing, but then the plaintiffs and the Vermont Attorney General’s office entered into a private consent agreement that contradicted the plain language of Vermont law,” said David Bassett, of WilmerHale, co-counsel on behalf of Compassion & Choices, Patient Choices Vermont and two Vermont patients, Benedict Underhill and Monica van de Ven (who died peacefully in January by utilizing Vermont’s Patient Choice at End of Life Act). “Absent the clarification we obtained this week,  physicians could have mistakenly believed it was acceptable for patients to make critical medical decisions without being informed of what their real care options are at the end of life.”

“The plaintiffs have wrongly claimed victory in a case they lost, so we are happy that the court has set the record straight,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices. “We still believe the agreement the state reached with the plaintiffs was unnecessary.  We will be watching carefully to ensure that physicians fulfill their duty to fully inform terminally ill patients about all their end-of-life care options and the Attorney General’s office enforces the law.”

“The Vermont legislature was very clear in Act 39 and in our Patient’s Bill of Rights for Palliative Care and Pain Management that patients are required to be informed of all available options near the end of life,” said Betsy Walkerman, President of Patient Choices Vermont.  “The plaintiffs in this lawsuit sought to muddy the waters and confuse medical professionals about their obligations.”

Last April, Judge Crawford dismissed the suit filed in July 2016 against the state of Vermont by Alliance Defending Freedom on behalf of the plaintiffs, Vermont Alliance for Ethical Healthcare and Tennessee-based Christian Medical and Dental Association. The groups claimed Vermont’s Patient’s Bill of Rights for Palliative Care and Pain Management violated their religious rights by requiring doctors to discuss all end-of-life care options with their patients. Judge Crawford’s ruling concluded the Patient’s Bill of Rights for Palliative Care and Pain Management and another Vermont law, Limitation of Medical Malpractice Action Based on Lack of Informed Consent, “continue to govern physicians in all aspects of their care of the terminally ill. Under these provisions, physicians must inform patients about all choices and options relevant to their medical treatment.” [See page 8 of opinion here].

The plaintiffs then negotiated a consent agreement with the Vermont Attorney General without consulting Compassion & Choices and Patient Choices Vermont. The plaintiffs filed the consent agreement with the court on May 5, the day of the appeal deadline, without notifying the Attorney General, Compassion & Choices and Patient Choices Vermont.

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