Med Mal News

'Aid-in-Dying' Suit in NY Attempts to Prevent Physician Prosecutions

Attorneys for a group of terminally ill patients have sued the New York state attorney general and several district attorneys in an effort to prevent the prosecution of physicians who provide assistance in dying to terminally ill, mentally competent patients. “This case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness,” said Los Angeles based Disability Rights Legal Center Executive Director Kathryn Tucker, who is representing the plaintiffs, at a recent news conference at Debevoise & Plimpton.

Three patients, including Eric Seiff, partner with Scoppetta Seiff Kretz & Abercrombie, five medical professionals, and End of Life Choices New York are suing New York Attorney General Eric Schneiderman and five district attorneys who have jurisdiction over the respective residencies of the plaintiffs. Schneiderman's office declined to comment.

Seiff, a Bronx resident who has practiced law for 57 years handling civil and criminal cases, was an assistant district attorney in Manhattan from 1962 to 1967. According to the complaint, Seiff suffers from cancer and, while it is not in a terminal stage, he would like to have the option of dying with the assistance of a physician.

The district attorneys named as defendants in Myers v. Schneiderman , 151162/2015, are Westchester County District Attorney Janet DiFiore, Monroe County District Attorney Sandra Doorley, Acting Saratoga County District Attorney Karen Heggen, Bronx County District Attorney Robert Johnson and Manhattan District Attorney Cyrus Vance Jr.

Edwin Schallert, a partner at Debevoise, is also representing the plaintiffs. Schallert is pro bono.

Terminally ill, mentally competent New York residents do have a measure of control over the manner of their death ' they may opt to withdraw life-prolonging measures such as the use of a ventilator or feeding tube, or ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

But the plaintiffs argue that New York law is not clear as to whether terminally ill patients may obtain a lethal prescription drug from a physician to ingest at their own discretion. Though commonly referred to as “doctor-assisted suicide” or “assisted suicide,” advocates say the term is pejorative and instead refer to the process as “aid-in-dying.”

Aid-in-dying is legal in Montana, New Mexico, Oregon, Vermont and Washington.

The two statutes pertaining to assisted suicide are ' 120.30, which makes it a class E felony to “promote a suicide attempt,” defined as intentionally causing or aiding another person to commit suicide; and ' 125.15, which classifies the act of intentionally causing or aiding another person to commit suicide as second-degree manslaughter, a class C felony. A class C felony is punishable by a maximum sentence of up to 15 years in prison and a class E felony is punishable by up to four years in prison.

The plaintiffs allege that New York state statutes do not provide a “valid statutory basis” to prosecute physicians who provide aid-in-dying because a mentally competent, terminally ill patient opting for a “peaceful death” rather than enduring a death that the patient finds unbearable does not constitute “suicide” as it is defined in statute.

In an interview after the news conference, Tucker said she does not know of any instances in New York in which physicians have been prosecuted under the statutes. But, she said, the way New York law is interpreted now creates a “chill in the environment” that may make some physicians “fearful” of candidly discussing the provisions of that type of assistance. “No wink-wink, nudge-nudge,” Tucker said. “It should be an open conversation.”

Tucker was lead counsel in the landmark federal case Vacco v. Quill, 521 U.S. 793 (1997), in which the U.S. Supreme Court ruled unanimously in 1997 that New York's ban on assisted suicide does not violate the Equal Protection Clause of the 14th Amendment.

Two of the plaintiffs who appeared at the news conference did not say they had concrete plans to end their lives, but said they would like to have the option to end their lives on their own terms. “It's still enough for me to wake up in the morning and spend time with my partner, play with my dog and try to enjoy the life I have left,” said Steve Goldenberg, who said in prepared remarks that he is dying from AIDS-related diseases. “I still have the will to live. But I do see the day coming when I will no longer have the strength to fight my numerous ailments.” ' Andrew Denney, New York Law Journal

'

Bill Introduced to End Confusion over TX High Court Decision

In response to a 2012 Texas Supreme Court decision, Rep. Chris Turner, D-Grand Prairie, has introduced House Bill 956, which would limit health care liability claims to medical patients or those representing them. Under the terms proposed by the bill, a health care liability claim would have to be directly related to the provision of health care. The bill's language explains that the term “health care” does “not include claims arising from an injury to or death of a person who is not a patient, including employment and premises liability claims.” The need for this legislation, according to its advocates, is to remedy the situation created by the State Supreme Court's Texas West Oaks Hospital v. Williams decision, which held that a claimant did not have to be a patient of a health care provider for his claim to fall under the Texas Medical Liability Act. David Chamberlain, president of the Texas Chapters of the American Board of Trial Advocates, explains: “There has been some confusion over how far this goes, and there has been a lot of litigation over it. If we could calm the litigation and make it more clear about who is covered or who is not, that would be a good thing.”

'

'Aid-in-Dying' Suit in NY Attempts to Prevent Physician Prosecutions

Attorneys for a group of terminally ill patients have sued the New York state attorney general and several district attorneys in an effort to prevent the prosecution of physicians who provide assistance in dying to terminally ill, mentally competent patients. “This case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness,” said Los Angeles based Disability Rights Legal Center Executive Director Kathryn Tucker, who is representing the plaintiffs, at a recent news conference at Debevoise & Plimpton.

Three patients, including Eric Seiff, partner with Scoppetta Seiff Kretz & Abercrombie, five medical professionals, and End of Life Choices New York are suing New York Attorney General Eric Schneiderman and five district attorneys who have jurisdiction over the respective residencies of the plaintiffs. Schneiderman's office declined to comment.

Seiff, a Bronx resident who has practiced law for 57 years handling civil and criminal cases, was an assistant district attorney in Manhattan from 1962 to 1967. According to the complaint, Seiff suffers from cancer and, while it is not in a terminal stage, he would like to have the option of dying with the assistance of a physician.

The district attorneys named as defendants in Myers v. Schneiderman , 151162/2015, are Westchester County District Attorney Janet DiFiore, Monroe County District Attorney Sandra Doorley, Acting Saratoga County District Attorney Karen Heggen, Bronx County District Attorney Robert Johnson and Manhattan District Attorney Cyrus Vance Jr.

Edwin Schallert, a partner at Debevoise, is also representing the plaintiffs. Schallert is pro bono.

Terminally ill, mentally competent New York residents do have a measure of control over the manner of their death ' they may opt to withdraw life-prolonging measures such as the use of a ventilator or feeding tube, or ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

But the plaintiffs argue that New York law is not clear as to whether terminally ill patients may obtain a lethal prescription drug from a physician to ingest at their own discretion. Though commonly referred to as “doctor-assisted suicide” or “assisted suicide,” advocates say the term is pejorative and instead refer to the process as “aid-in-dying.”

Aid-in-dying is legal in Montana, New Mexico, Oregon, Vermont and Washington.

The two statutes pertaining to assisted suicide are ' 120.30, which makes it a class E felony to “promote a suicide attempt,” defined as intentionally causing or aiding another person to commit suicide; and ' 125.15, which classifies the act of intentionally causing or aiding another person to commit suicide as second-degree manslaughter, a class C felony. A class C felony is punishable by a maximum sentence of up to 15 years in prison and a class E felony is punishable by up to four years in prison.

The plaintiffs allege that New York state statutes do not provide a “valid statutory basis” to prosecute physicians who provide aid-in-dying because a mentally competent, terminally ill patient opting for a “peaceful death” rather than enduring a death that the patient finds unbearable does not constitute “suicide” as it is defined in statute.

In an interview after the news conference, Tucker said she does not know of any instances in New York in which physicians have been prosecuted under the statutes. But, she said, the way New York law is interpreted now creates a “chill in the environment” that may make some physicians “fearful” of candidly discussing the provisions of that type of assistance. “No wink-wink, nudge-nudge,” Tucker said. “It should be an open conversation.”

Tucker was lead counsel in the landmark federal case Vacco v. Quill , 521 U.S. 793 (1997), in which the U.S. Supreme Court ruled unanimously in 1997 that New York's ban on assisted suicide does not violate the Equal Protection Clause of the 14th Amendment.

Two of the plaintiffs who appeared at the news conference did not say they had concrete plans to end their lives, but said they would like to have the option to end their lives on their own terms. “It's still enough for me to wake up in the morning and spend time with my partner, play with my dog and try to enjoy the life I have left,” said Steve Goldenberg, who said in prepared remarks that he is dying from AIDS-related diseases. “I still have the will to live. But I do see the day coming when I will no longer have the strength to fight my numerous ailments.” ' Andrew Denney, New York Law Journal

'