InternationalTaskForce.org - Volume 13, Number 1

IAETF Update

Volume 13, Number 1 -- January - March 1999

In a study published in the New England Journal of Medicine (NEJM), researchers from the Oregon Health Division presented their analysis of the state's first year under the Oregon Death with Dignity law.

Proponents of the world's only physician-assisted suicide (PAS) law quickly seized the moment to hammer home their view that the law is working well and without abuses. Barbara Coombs Lee, executive director of the assisted-suicide advocacy group Compassion in Dying Federation and a co-author of the PAS law, told the media, "The Death with Dignity Act is being implemented in Oregon very reasonably and very carefully." "It's what we expected-a year of impeccable implementation," she said. [Reuters, 2/17/99; AP 2/17/99]

But the first-year report is not reflective of "impeccable implementation" as much as it is a new spin on the old story of the emperor's new clothes. Just because some are saying that the PAS law is working well, does not mean that it really is.

The report's findings

According to the OHD's study, 23 patients received legal lethal drug prescriptions between 1/1/98 and 12/31/98. Of those patients, 15 actually took the deadly drugs and died, 6 died from their illnesses without taking the lethal prescription, and 2 were still living as of 1/1/99.

Of the 15 patients who died from the lethal drugs, 7 were women, 8 were men, all 15 were white, 13 had cancer, 1 had congestive heart failure, and 1 had chronic obstructive pulmonary disease. The median age was 69. Four were referred for a psychiatric or psychological consultation.

Of the 15 patients who died from lethal drugs, only 2 were married at the time of death., while 4 were divorced, 5 were widowed, and 4 had never married. Most (12) had finished high school; 3 did not. Four had graduated from college. The average time it took for death to occur after taking the lethal drugs was 26 minutes, ranging from as little as 15 minutes to as much as 11.5 hours. There were no reports of vomiting, seizures, or botched suicides.

According to the doctors who reported their participation in an assisted suicide, the top reason given by 12 patients for wanting to end their lives was the fear of losing control. (Some patients cited more that 1 reason.) Ten (10) patients voiced their concern over the inability to participate in activities. Eight (8) patients said the loss of bodily functions was their reason for assisted suicide, while 2 cited being a burden on family, friends, and other caregivers. Only 1 said that they had inadequate pain control, and no one cited concern over the cost of medical treatment or prolongation of life.

The study also reported that six patients had to go to 1 or 2 doctors before they found one who would agree to end their lives. Five of those patients were specifically referred (perhaps by advocacy groups) for assisted suicide to the doctor who ended up writing the lethal prescription. The patients who committed assisted suicide had shorter doctor/patient relationships with the death-prescribing doctor than did the control group of patients who died naturally. All the reporting physicians were in full compliance with the PAS law. [Chin et al., "Legalized Physician -Assisted Suicide in Oregon - The First Year's Experience," NEJM, 2/18/99:577-583. Hereafter cited as Report.]

Flawed conclusions about a flawed law

Clearly, the spin being placed on the assisted-suicide report by its authors and others is a rosy one. "Many people feared that if physician-assisted suicide was legalized, it would be disproportionately chosen by or forced on terminally ill patients who were poor, uneducated, uninsured, or fearful of the financial consequences of their illness," the authors wrote. "In our study of physician-assisted suicides in Oregon in 1998, we found no evidence to support these fears." [Report, p. 582]

This conclusion has led other professionals, like Virginia Tilden from the Center for Ethics in Health Care, to conclude, "In general, the law worked," she said. "None of those bad things happened… I think we're all breathing a sigh of relief about that." [Oregonian, 2/18/99]

But, what is being glossed over is the fact that the data contained in the report is skewed and incomplete. Why? Because the Death with Dignity law contains no penalties for doctors who do not comply with its requirements, like reporting assisted deaths to the Oregon Health Division. As is mentioned in the report, it is "difficult, if not impossible, to detect accurately and comment on underreporting." "We cannot determine whether physician-assisted suicide is being practiced outside the framework of the Death with Dignity Act." [Report, p.583]

Moreover, the data for this study came exclusively from the death-prescribing doctors, with no corroboration from other sources. In fact, the OHD, citing privacy concerns, never even interviewed the patients' families, friends, or caregivers regarding the circumstances and/or pressures surrounding the deaths. Nor did the OHD contact the patients' other doctors who, for some reason, opted not to write the deadly prescription.

As the OHD's Center for Disease Prevention & Epidemiology warned in its summary newsletter entitled, "A Year of Dignified Death," there are limitations which should be considered regarding the study's findings. One such limitation is the possibility that the death-prescribing doctors may have had "recall bias," in their reports to the state. "For that matter," the summary states, "the entire account could have been a cock and bull story. We assume, however, that physicians were their usual careful and accurate selves." [OHD, "CD Summary," vol. 48, no. 6, 3/16/99; emphasis added]

In other words, the state is just assuming that doctors engaged in ending the lives of patients are of good will, have been totally compliant with the provisions of the PAS law, and are completely truthful and forthright in their reports to the state. But why would a doctor even bother to report a less-than-perfect death, one which might cause legal and professional problems for that doctor with the OHD, the state medical licensing board, or even the police?

Dr. Gregory Hamilton, head of Physicians for Compassionate Care, an organization opposed to PAS, has criticized the OHD for not tracking down doctors who write lethal prescriptions but do not report those cases to the state. "I believe the majority of assisted suicides and euthanasia will go unreported here in Oregon, just like in the Netherlands," he said. [Statesman Journal, 2/18/99] (For new information on the Netherlands, see "Dutch euthanasia practice out of control" in this Update.)

Dr. Hamilton is not alone in his opposition to the PAS law. A new national group, Americans for Integrity in Palliative Care (AIPC), shares his concerns-especially about the faulty OHD report. "There are conclusions here that are based on a lack of information," explained Dr. Herbert Hendin, head of the American Foundation for Suicide Prevention and AIPC member. "That's the big mistake in the report." Citing as an example the report's conclusion that none of the 15 patients who committed suicide under the PAS law did so because of financial pressures, Hendin pointed out that just because a patient chooses not to tell the doctor about his or her financial problems and pressures doesn't mean that they did not exist.

The report's lead author, Dr. Arthur Chin, agreed that there were better sources than the death-prescribing doctor for some of the data, but added that the report's authors were restricted by privacy concerns. Furthermore, he said, their aim was to fulfill the PAS law's requirement to issue a statistical report, not a comprehensive study on physician-assisted suicide. [AP, 2/26/99]

Many of Oregon's physicians have indicated that they have no intention of adding assisted suicide to their list of medical services. According to an informal poll by the state, 67% of Oregon doctors who routinely treat terminally-ill patients said they would refuse to engage in assisted suicide. "I haven't been trained to kill people," declared Portland oncologist Dr. Jana Reddoch. "I've been trained to help them live as long as possible." [AP, 3/5/99]

OREGON DEATH HIGHLIGHTS DISCRIMINATORY SIDE OF PAS LAW

In the opinion of Oregon Deputy Attorney General David Schuman, the state's assisted-suicide law more than likely violates both the Oregon Constitution and the federal Americans with Disabilities Act by discriminating against patients who are too disabled to swallow legally prescribed lethal drugs. The PAS law specifies that the lethal medication be ingested by the qualified patient. [D. Schuman, Letter to Senator Neil Bryant, 3/15/99; hereafter cited as Letter]

Schuman issued his opinion after details of the death of Patrick Matheny, 43, were published in the Oregonian. Matheny had Lou Gehrig's disease (ALS) and, since last October, had been the subject of two feature articles in the Oregonian detailing his dilemma in deciding when to actually take the lethal drug to end his life.

He would set arbitrary deadlines, then, when the time came, would set new deadlines. At first, it was to be after his 15-year-old son came to visit last Thanksgiving. Then is was to be when he could no longer dress and wash himself. As the article put it, "Pat felt he would rather be dead than accept help to bathe and dress." But when the time came, he was able to handle having his mother and hospice nurses help him-so he set new deadlines. [Oregonian, 10/27/99, 1/17/99]

Then, on 3/10/99, Matheny tried to swallow the barbiturates mixed into a chocolate nutrition drink, sweetened with a boxful of sugar substitute. Reportedly, he experienced difficulty swallowing the concoction. The only person Methany had asked to be with him in his trailer was his brother-in-law, Joe Hayes. Hayes told the Oregonian that he had to "help" Matheny to die, but would not say how. According to Hayes, it was too personal. "It doesn't go smoothly for everyone," Hayes explained. "For Pat it was a huge problem. It would have not worked without help," he added. [Oregonian, 3/11/99]

Coos County District Attorney Paul Burgett called for an investigation of Matheny's death after reading Hayes' comments in the Oregonian, but then quickly dropped the inquiry, saying, "We think the purpose of the law was served and we have no further questions."

The county investigator did not question Hayes at all, yet Burgett told reporters that he was satisfied that Hayes simply assisted Matheny in a legal act which Matheny intended to commit. Burgett went on to state that he thought disabled people who cannot swallow should have an equal right to assisted suicide as long as they meet the requirements of the law. [Oregonian, 3/17/99; Register-Guard, 3/16/99]

After reading Burgett's comments, State Senator Neil Bryant asked Deputy Attorney General Schuman for his opinion. "The Death with Dignity Act does not, on its face and in so many words, discriminate against persons who are unable to self-administer medication. Nonetheless, it would have that effect," Schuman wrote. "It therefore seems logical to conclude that persons who are unable to self-medicate will be denied access to a 'death with dignity' in disproportionate numbers," he added. [Letter, 3/15/99]

Comment: The slippery slope just got slicker in Oregon. Now it's the "purpose" of the laws (death) that counts, not its so-called "safeguards". The distinction between assisted suicide and euthanasia may soon be a thing of the past. As law expert Yale Kamisar once told a group of law students, "The modern history...of death and dying… is 'a history of lost distinctions of former significance.'" [Kamisar, Speech given at McGeorge School of Law, 4/21/94]

KEVORKIAN GUILTY OF MURDER

It was truly an historic verdict, and much too long in coming-too long to save the 130 or so lives victimized and destroyed over a nine-year span by the man referred to as Dr. Death. There had been other trials on felony counts before this, three ending in acquittals, one declared a mistrial. But this time the jury focused on the law. This time the verdict was "Guilty" on two counts, second-degree murder and delivery of a controlled substance without a medical license.

The death

Reportedly, Jack Kevorkian, an unlicensed pathologist, welcomed this latest trial. After all, he had deliberately orchestrated the 9/17/98 death of 52-year-old Thomas Youk for public consumption by video-taping the death and then giving the tapes to Mike Wallace to air nationally on CBS' 60 Minutes. An edited version of the tapes-clearly showing Kevorkian injecting Youk with a lethal series of drugs-along with Kevorkian's cold and business-like play-by-play account were broadcast on Sunday evening, 11/22/98. (See Update, 11-12/98 .)

It was during that broadcast that Kevorkian challenged Michigan prosecutors to charge him. "They must charge me," he said. "If not, they show that they cannot convict me in a court of law." ["Death by Doctor," 60 Minutes, 11/22/98] He told the Oakland Press (Pontiac, MI), "I want a showdown. It's time to end the circus. I want to be prosecuted for euthanasia. I am going to prove that this is not a crime, ever, regardless of what words are written on paper." [Oakland Press, 11/20/98]

Kevorkian got his wish on 11/25/98, when Oakland County Prosecutor David Gorcyca charged him with first-degree murder, assisted suicide, and delivery of a controlled substance. At his arraignment, he pleaded not guilty, and was released on a $750,000 personal bond. [Detroit News, 11/26/98; Detroit Free Press, 11/26/98; Reuters, 12/17/98]

The trial

From the very beginning, it was evident that this trial was going to be different. Not only was there a murder charge in addition to the assisted-suicide charge to contend with, but neither Geoffrey Fieger (Kevorkian's longtime, in-your-face lawyer) nor his partner, Michael Schwartz (nicknamed the 'barracuda"), would be seated at the defense table. Reportedly, the death doctor and Fieger had had a falling out late last year over who should be in control, and Kevorkian fired him. [Detroit Metro Times, 3/21/99]

Kevorkian wanted to act as his own lawyer, and reluctantly the trial judge, Oakland County Circuit Court Judge Jessica Cooper, granted his wish-but not until after she voiced her concerns numerous times. "Do you understand you could spend the rest of your life in prison?" she asked. "There's not much of it left," Kevorkian responded.

While two young lawyers, David Gorosh and Lisa Dwyer, would sit at the defense table and coach him in whispered tones throughout the trial, Kevorkian explained that taking control and defending himself was "what I've planned all along." "There are certain points I can bring out better than anyone else," he added confidently. However, it soon became obvious that Kevorkian was in way over his head. [AP, 3/22/99; Reuters, 3/22/99]

He no sooner began his opening statement than Judge Cooper had to order the jury removed from the courtroom. "To have a crime," Kevorkian had told the jury, "you need a vicious will and a vicious act," which is not the case under Michigan law. When Prosecutor John Skrzynski objected, saying that Kevorkian was improperly arguing the law, not summarizing the facts of his case, Judge Cooper agreed.

But Kevorkian stubbornly rambled on, speaking directing to the judge. "What I was trying to prove here is that I didn't have the intent to kill, just as the executioner doesn't," he said. "His intent is to do his duty, because he may despise what he is doing. But he's forced to do it by his position." So too, Kevorkian told the judge, "I despise a human being dying at my hands. But my intent isn't to kill a person. I am forced by my position as a physician to do this. And that is reasonable apprehension." [AP, 3/23/99]

Clearly, Kevorkian had missed the point. When the jury finally returned to the courtroom, a frustrated Judge Cooper simply explained to them that the legal definition of "malice" is "intent to kill," not "viciousness," as Kevorkian had argued.

But, things were about to go from bad to worse for Dr. Death. Just days before the trial started, prosecutors had filed a motion to bar any emotional testimony regarding Youk's physical condition, the type of pain and suffering testimony which Fieger had used so successfully in previous trials to persuade juries to ignore the law and acquit Kevorkian. Judge Cooper ruled that such testimony would be admissible for the assisted-suicide charge, but not for the murder charge. Prosecutors then took a huge gamble, and dropped the assisted-suicide charge altogether. Without that charge, they strategized, the emotion-laden testimony could not be introduced. [Detroit News, 3/13/99; Michigan Daily, 3/11/99; Court TV, 3/9/99]

The prosecution's gamble paid off big time, with Kevorkian calling no witnesses for his defense. He had planned to call Youk's wife, Melody, and his brother, Terrance, as his only witnesses to describe Thomas' debilitated condition and his alleged wish to die. But when Kevorkian tried to call them to the witness stand, the prosecutor objected, and the judge, having already ruled that such testimony was inadmissible, asked Kevorkian for a legal response to the objection. What she got instead was another Kevorkian rambling monologue, after which, she told him, "The law in Michigan is very clear." "And I know that you disagree with that," she added, "and I know that that's what you want to talk to the jury about. But you can't. The jury doesn't decide if the law is correct. The jury decides if the facts are correct." [NY Times, 3/24/99; Detroit Free Press, 3/24/99]

And the facts in this case were indisputable. They were documented on the video tapes Kevorkian, himself, made for all, including a jury, to see. Before the videos' initial showing, Skrzynski, the lead prosecutor, asked the jury to remember that, in spite of Kevorkian's "celebrity" status, he is not above the law.

"Begin to focus on what Jack Kevorkian does, and what Jack Kevorkian says," Skrzynski urged, "and what you will see is a man breaking the law." "Jack Kevorkian killed Tom Youk, and Jack Kevorkian does not have the right to kill." Skrzynski also established that Youk's death was not an assisted suicide. "Tom Youk did not kill himself with Jack Kevorkian's help. Jack Kevorkian killed Tom Youk by injecting him with drugs," he explained. [Detroit News, 3/23/99; Reuters, 3/23/99; AP, 3/23/99]

Closing arguments

Kevorkian rested his case without anyone testifying on his behalf, including himself. He used his closing argument to appeal to the jury, saying that he alone knew his intentions when he helped Youk die. "The aim," he said, "was the final solution to incurable agony." He restated his contention that, as a dedicated physician, he had a duty to help Youk end his suffering. He also reminded the jurors that they have the power to nullify laws if they wish. "Words on paper do not necessarily create crimes," he explained. "There are certain acts that by sheer common sense are not crimes. That's for you to decide." But if they convicted him, Kevorkian warned the jurors, "then take the harsh judgment of history, and the harsher judgment of your children and grandchildren if they ever come to need that precious choice." [Court TV, 3/26/99; Washington Post, 3/26/99:A2; AP 3/27/99]

During the prosecution's closing arguments, Skrzynski drew a parallel between what Kevorkian did and what happened in Nazi Germany. "There are 11 million souls buried in Europe who could tell you that there are some catastrophic effects when you make euthanasia law," he said. Calling Kevorkian "a medical hitman" who comes "in the night with his bag of poisons to do his job," Skrzynski reminded the jury that Kevorkian knew Youk for only 24 hours prior to killing him. While replaying parts of the tape showing Youk's actual death, the prosecutor pointed out that Kevorkian didn't even take the time to shut Youk's gaping mouth before removing the needles and other medical devices-implying that Kevorkian was more concerned about killing and advancing his agenda than he was about Youk's dignity. [Court TV, 1/26/99]

At one point, Skrzynski replayed for the jury a section of the unedited tape where Kevorkian is preparing to inject Youk. As Kevorkian starts to insert the needle, Youk tries to say something, but Kevorkian doesn't appear to even notice, and goes ahead and injects Youk with a drug to render him unconscious. "We don't know what he said," Skrzynski told the jury, "and it's too late now because he's gone now, he's asleep and he's never getting up again. What did he say? Did he say 'wait'? Did Dr. Kevorkian have a duty to stop and find out what he was saying?"

One observer described the word Youk was trying to say as having a long "a" sound. Another, Youk's hospice nurse Marianne Potter, who was usually able to understand what Youk said, told Court TV interviewers that she was asked by prosecutors weeks before to try and decipher Youk's last audible sound on the tape. While not able to discern a complete word, Potter did say that she could hear a "w." "I hope and pray," she said, "that he wasn't saying 'wait.'" "My heart goes out," she continued, "because, even if he wasn't saying 'wait,' why wasn't he given the courtesy of figuring out what he was saying?" [Court TV, 3/26/99]

This new information regarding Youk's last utterance gives added significance to a comment Kevorkian made during an interview late last year. When he was asked if Youk had anything to say at the end, Kevorkian just laughed and said, "I don't know. I never understood a thing he said." [Lessenberry, "I want a showdown," Oakland Press, 11/20/98:A1]

Potter told Court TV that the day before he was killed by Kevorkian she had asked Youk, "Do you want to die?" His answer, she said, was "No." She also indicated that her sense was that Youk was not fully informed on available ways to control his ALS symptoms, and he was not confident in his physician's ability to adequately improve the quality of his remaining life. Youk's greatest fear had been the prospect of choking to death, which, with proper care, would never have occurred. Youk's brother, Terrance, disagreed with Potter, saying that, while his brother didn't want to die, he didn't want to live like he was either. Potter said that the family had asked her opinion on assisted suicide and told her that they had obtained information off of the Internet on the Hemlock Society and the Michigan assisted-suicide advocacy group, Merian's Friends. [Court TV, 3/26/99]

The verdict

It took the jury of seven women and five men approximately 13 hours to reach their unanimous guilty verdicts. According to the only juror willing to speak to the press, the assisted-suicide issue never came into play. "We knew it was about the facts, we knew it was about a murder trial," he said. Reportedly, the jurors spent most of their time deliberating, not between guilt or innocence, but whether to find Kevorkian guilty of first- or second-degree murder. His guilt was never in question. [Detroit Free Press, 3/28/99; NY Times, 3/27/99].

Kevorkian's legal counsel, David Gorosh, disagreed with the verdict. "We believe it is certainly unjust to try to equate an act of compassion with an act of murder," he told reporters. Kevorkian, who tried to remain impassive in the face of conviction, later expressed anger.

"Manslaughter, I could understand how they would arrive at that. But murder? This? They must have been an astonishingly cruel jury!" he told friend and reporter Jack Lessenberry. "You tell them I said this," he went on. "I don't want to be a martyr. I want to be free. And that's why I am doing this, and you should print that. I need to be free to die." [Oakland Press, 3/27/99:AI]

But others gathered at the courthouse were overjoyed with the verdict. "If this had happened sooner, there are 130 people who would still be alive," said Diane Coleman as tears formed in her eyes. Coleman and about 40 members of Not Dead Yet, a national disability rights group she founded, traveled long distances to peacefully demonstrated outside the courtroom each day of the trial. Their witness placed Kevorkian's so-called crusade in proper perspective for the media and others.

One Canadian paper covering the trial aptly described Not Dead Yet's presence there as "a wheelchair army bent on stopping the euthanasia movement." "We are the potential victims," Coleman said, "it is our lives at stake." [National Post, 3/25/99]

Not Dead Yet members are planning to be at the courthouse on April 13 for Kevorkian's sentencing. While the maximum penalty for second-degree murder is life in prison, the actual sentence is left up to the judge. Prosecutors have indicated that there are state sentencing guidelines which, if the judge follows them, could land Kevorkian in prison for 10 to 25 years. But it is also possible that Judge Cooper could sentence Kevorkian to probation. Likewise, the penalty for delivery of a controlled substance can be up to seven years in prison or probation, if the judge so rules. In the meantime, Kevorkian's lawyer has indicated that an appeal is being planned. [Court TV, 3/26/99]

But Skrzynski thinks that Kevorkian will actually go to prison. When asked if he had created a martyr, Skrzynski replied, "I created an inmate." [NY Times, 3/27/99]

New poll finds most think Kevorkian guilty… and more

A recent national poll has found that 52% of Americans thought that Kevorkian should have been found guilty on some charge, while only 27% indicated that the jury's verdict should have been not guilty. This Portrait of America telephone survey of 1,000 randomly selected adults was conducted on March 30, 1999, by Rasmussen Research. The margin of sampling error was ± 3 percentage points.

The survey also found that 45% of Americans have a generally positive opinion of Kevorkian, while 36% have an unfavorable view of him. However, after being informed of the fact that Kevorkian does not have a license to practice medicine and that he supports the right of doctors to assist healthy patients to die, Kevorkian's favorable rating dropped drastically to only 19%, while his unfavorable rating dramatically rose to 57%.

Likewise, public support for physician-assisted suicide was confined to the limited situation where a terminally-ill patient would ask a doctor for help to commit suicide. Fifty-four percent (54%) thought that doctors should be able to give a lethal dose to these patients; 32% did not.

But there is virtually no support for physician-assisted suicide if the patient is not terminally ill. Only 11% said doctors should give a lethal dose to non-terminally ill patients who feel they are a burden on their families. Just 7% said it should be legal for doctors to prescribe lethal doses to healthy patients who want to commit suicide.

Perhaps most significant is the finding that the vast majority want doctors to reduce the number of suicides, not increase them. In fact, 81% held that doctors have a "moral obligation" to try and talk the patient out of committing suicide.

What others had to say about the Kevorkian verdict…

George Annas, ethicist, Boston University

"It couldn't have happened to a nicer guy." [Boston Globe, 3/27/99]

Derek Humphry, co-founder of Hemlock Society

"This grotesque verdict in Michigan will only serve to drive the widespread practices of voluntary euthanasia further underground…. Dr. Kevorkian may be a flawed messiah, but he is on the right track." [Humphry Press Release, 3/26/99]

American Medical Association

"Patients in American can be relieved that the guilty verdict against Jack Kevorkian helps protect them from those who would take their lives prematurely." [NY Post, 3/27/99]

Los Angeles Times, commentary

"A right to die does not include the right to serve as someone else's executioner. Kevorkian never understood the distinction." [LA Times, 3/28/99]

New York Post, editorial (3/27/99)

"At long last, a jury got it right when it comes to Dr. Jack Kevorkian."

Yale Kamisar, University of Michigan

"People can no longer say that Kevorkian is invincible. It shows that jurors are not going to nullify the law, despite all the sympathy for the victim and the family members, if the judge takes charge." [USA Today, 3/29/99]

Faye Girsh, Hemlock Society director

"He's a martyr. He's acted in a great American tradition of civil disobedience." "It was so clearly not a crime." [Detroit News, 3/28/99]

Geoffrey Fieger, former Kevorkian attorney

"It's over. We always knew if he ever got convicted, he had no hope of appeal. Even if he had the best appealable issue known to law, the present constituency of the court of appeals in the state of Michigan will never find for Kevorkian." [Detroit Free Press, 3/29/99]

Pete Waldmeir, columnist, Detroit News

"This is not some angel of mercy that we're dealing with here…. But when the body bags are tallied, [Kevorkian] is revealed for what he is: A romanticized version of Ted Bundy, stacking corpses like cordwood and proud of it." [Detroit News, 3/28/99]

Kevorkian on Trial:
The Death of Thomas Youk

by Herbert Hendin

Jack Kevorkian, M.D., gave Thomas Youk, a 52-year-old Michigan man suffering with amyotrophic lateral sclerosis (ALS), a lethal injection, videotaped the deed, and arranged for an edited version of that tape to be broadcast on the national television program "60 Minutes." He then challenged Michigan prosecutors to try to convict him, threatening to starve himself to death if they succeeded. Michigan authorities have accommodated him, charging him with premeditated murder, criminal assistance in a suicide and improper use of a controlled substance. Kevorkian's license to practice medicine, and thus to dispense controlled substances, had been suspended in 1991 by the Michigan Board of Medicine.

The public first learned about this case in the rather sensational promotions aired by CBS for the "60 Minutes" episode. Many reacted to the news and the program with shock, feeling the case for legalization of euthanasia could have been made, even using the suffering of Youk to support it, without showing his death. At least six CBS affiliates refused to show the Kevorkian segment. Youk's wife, who supported her husband's request for death, spoke of him as a person who cherished his privacy without seeming to recognize the irony in which his death was publicized and treated was a means for Kevorkian to achieve his own ends.

Some were shocked that Kevorkian crossed the boundary between assisted suicide, in which patients perform the lethal act with physicians providing the means, and euthanasia, in which the physicians directly induce death through lethal injection. Experience, however, over the past decade seems persuasive that assisted suicide does not offer much protection against the coercion that many fear may accompany euthanasia. Nor, if assisted suicide becomes legal, will it long be possible to draw the line short of euthanasia.

Although Youk could have swallowed lethal medication, many terminally ill patients cannot, and would need a doctor's help to effect their deaths. If assistance in suicide becomes accepted medical practice, it would be hard to deny help in providing it to such patients.

Although the media treated this as the first showing of euthanasia on American television, in December 1994, ABC's "Prime Time Live" played an excerpt from a Dutch documentary showing a physician ending the life of a patient, also diagnosed with ALS. That program introduced the film as a story of "courage and love," but enough detail was provided to make it clear that the patient was very ambivalent about dying, and wanted to put off the date for his death. That ambivalence was ignored by the doctor, who supported the desire of the patient's wife to move forward quickly.

The clip shows that this doctor never sees the patient alone, permits the wife to answer all questions for him about whether he wants to die, and presents a frightening and inaccurate picture of the death that awaits him without euthanasia. The doctor says of his patient, "I can give him the finest wheelchair there is, but in the end it is only a stopgap. He is going to die and he knows it." That death may be years away, but a physician with this attitude may not be able to present plausible alternatives to such a patient.

Youk was asked questions requiring only one- or two-word answers. Therefore, missing in the segment played on "60 Minutes" is his voice and any attempt to engage him in any other subject than the question of how and when he should die. Kevorkian and Youk's family constantly speak for him.

Kevorkian does not address the role of Youk's family in the decision to end his life. At one point, Youk's brother states, "We were at the end of our rope." We know that a family who feels overburdened by an illness can play a powerful role in influencing a patient's wish to die.

A Swedish study, for example, looked at the response of relatives to the suicide attempts of patients with somatic illnesses. Family members, overwhelmed by what they felt were the relentless needs of the patient, were likely to have delayed calling the doctor, to urge nonresuscitation of the patient and to have expressed death wishes to the patient. Once help from social welfare agencies was arranged, family attitudes changed and the patients wanted to live.

Kevorkian does not inquire about the desperation that invariably underlies a patient's request for death. Nor does he ever address with Youk what might be done to relieve his distress. For example, Youk was said to be afraid of choking because he was unable to swallow his saliva, but there is no discussion of medications that can control this problem.

Dame Cicely Saunders, the English physician who founded the hospice movement, has written that she has treated hundreds of patients with ALS and none of them choked or suffocated to death. Given proper medical care, death is painless for most people with this disease.

Although Youk preferred assisted suicide, Kevorkian claims to have persuaded him to accept euthanasia. The segment of the tape containing that persuasion was not shown. We are told that Youk was in a hospice program, yet we never hear from anyone in that program. We are also told that Youk was unhappy with his medical treatment, but not why or what could have been done to improve it.

Nor did Mike Wallace's interview for "60 Minutes" reflect any feeling on Kevorkian's part for Youk. Youk's death seemed subordinate to Kevorkian's starvation threat if convicted of murder. The final and ultimate disrespect shown to Youk was in televising his death, and sacrificing the privacy and dignity that should accompany death to Kevorkian's need to attract our attention.

Structuring their program in a way that was sympathetic to Kevorkian while trying to appear to be unbiased, CBS did not give its audience enough background information to enable them to view the Kevorkian tape in any meaningful context.

Kevorkian has told us that he sees as euthanasia candidates not only those suffering from disease, deformity or trauma, but people with "intense anxiety or psychic torture inflicted by self or others." The latter could have been his justification for assisting in the suicide of Judith Curren, a woman with chronic fatigue syndrome and fibromyalgia, a nonlethal muscular disorder. Three weeks before her death, her husband, who played an active role in the arrangements with Kevorkian, had been arrested on a domestic assault charge. Curren was addicted to painkillers, and had complained of depression as well as spousal abuse. Like Curren, many of those Kevorkian has assisted in suicide were not terminally ill, and some had doubts about dying. At least one person's autopsy showed no evidence of physical disease.

Kevorkian's fascination with death, also expressed in his paintings of dismembered bodies, has a long history. He was first called "Dr. Death" in 1956 during his medical residency because of his interest in photographing the retinal blood vessels of patients at the moment of their deaths. He achieved notoriety a few years later with papers suggesting that death row inmates be anesthetized at execution time so that their living bodies could be used for experiments lasting hours, or even months, after which they would be given a lethal dose of the anesthetic. Thus, this would save the lives of innocent animals killed in the name of science.

His persistent advocacy of such experimentation made him a pariah among physicians, and caused him to lose an academic appointment at the University of Michigan. Speaking of his interest in euthanasia in 1990, he told U.S. News and World Report, "The medical profession made a mistake when they ostracized me. I have no career anymore. This is the substitute."

Becoming the instrument of death for others or oneself is a way that death-obsessed individuals sometimes deal with their own anxieties. Using their own death as an instrument of control is characteristic. I won't live "if I lose my looks, power, prestige or health," or "if I am going to die soon" or, in Kevorkian's case, "if I am not permitted to perform euthanasia." Prisoners are not given the right to starve themselves to death, so, in fact, that option will not be open to Kevorkian.

Michigan prosecutors concerned with putting a stop to Kevorkian's activities will need to educate the jury (and the public) about the eccentric and unprofessional nature of Kevorkian's behavior, as well as its illegality, or they will run the risk of arousing sympathy for him. Kevorkian has been acquitted three times by Michigan juries on charges of assisted suicide. Although Michigan now has a statute prohibiting assisted suicide, a jury may again understandably, but mistakenly, see him as a champion of those who are terminally ill. The best chance for conviction may rest on the charge of misuse of controlled substances, which by itself could lead to several years of imprisonment. Kevorkian plans to act as part of his legal team in this case, which may give the jury a better opportunity to witness his erratic behavior.

Proponents and opponents of assisted suicide legalization see this case as a battleground in their ongoing struggle. Proponents, though embarrassed by Kevorkian, know that if he is acquitted it will be hard to convict any physician in Michigan for ending the life of a patient who requests it, no matter how negligently or irresponsibly the physician behaves. Opponents hope that a conviction will provide momentum to their efforts to educate the public on the need for palliative care, and the dangers of using physician-assisted suicide and euthanasia as substitutes.

Putting Kevorkian on trial is not the same as developing a rational health care policy for those who are terminally ill. Kevorkian needs to be checked, but too much significance should not be given to his case. Our concern with the care for those who are seriously or terminally ill is too important to relegate to the trial of someone who is so narrowly fixed on being the instrument of his own death or that of others.

Herbert Hendin, M.D., is the medical director of the American Foundation for Suicide Prevention and the author of Seduced by Death: Doctors, Patients, and the Dutch Cure (W.W. Norton, 1997). His article originally appeared in Psychiatric Times, vol. XVI(2), 2/19/99, and is reprinted here with permission. Copyright © 1999 CME, Inc., Irvine, CA.

Book Review
KILLING PATIENTS PROPOSED AS COST CUTTING
by Wesley J. Smith

Freedom to Die - People, Politics, and the Right-to-Die Movement
Derek Humphry & Mary Clement
St. Martins, 384 pages, $24.95

In Freedom to Die, suicide guru Derek Humphry, co-founder of the Hemlock Society, and Mary Clement, a pro-euthanasia attorney, describe the assisted-suicide movement as "a pure flame of revolution," rising from the cultural upheavals of the 1960s. It is an era they proclaim to be of greater historic importance than the American and Russian Revolutions, and in the authors' view, the last great unfinished business of those glorious days is legalizing assisted suicide and euthanasia. Indeed, they see the freedom to be killed as "the ultimate civil right."

Freedom to Die is both a partisan history of euthanasia and propaganda for its legalization. To make their case, Humphry and Clement blend half-truths, fabrications, and tactical omissions, with a near-hysterical diatribe against the free-speech rights of Catholics. Taken as a whole, the book epitomizes the intellectual dishonesty of most assisted-suicide advocacy-which is exactly why it is so hard to explain the authors' one major strategic mistake.

Although most of Freedom to Die is retreaded material, Humphry and Clement open up a new line of argument by advocating assisted suicide as a way to control medical costs. In doing so, they actually strengthen the anti-euthanasia cause. For years opponents have warned that killing the sick and disabled will prove not to be about compassion or choice, but about money. And in response, euthanasia advocates have called them paranoids and fantasists.

But now Humphry and Clement admit that cost containment is one of their ultimate purposes:

A rational argument can be made for allowing [assisted suicide] in order to offset the amount society and family spend on the ill, as long as it is the voluntary wish of the mentally competent, terminally ill adult….The hastened demise of people with only a short time left would free up resources for others. Hundreds of billions of dollars could benefit those patients who not only can be cured but who want to live.

Imagine a health-care system that favors death as the best treatment for cancer, Lou Gehrig's disease, or spinal injury. Imagine the money to be made if HMOs are spared the expense of caring for such patients. And imagine the potential for coercion when killing leads to the profits the authors envision. As Freedom to Die points out with approval, this means a return to the morality of the ancient practices of exposing disabled infants on the hillside and leaving the elderly and infirm to die by the trail-or, as Humphry and Clement candidly call it, "the abandonment of the unproductive."

If only the authors had been so candid in the rest of their book. Unfortunately, they often merely chant the shopworn mantra that suicide is to be restricted to "the mentally competent, terminally ill adult." On this point, Humphry's own writings betray them. In the 1996 version of his how-to-commit-suicide guide, Final Exit, Humphry wrote, "Severely handicapped people have an inalienable right either to live or choose to die, just the same as anybody else."

Humphry is not the only prominent ideologue who advocates suicide for those not terminally ill. His colleague Faye Girsh, executive director of the Hemlock Society, issued a 1998 press release stating that the Hemlock Society supported legalization of assisted suicide for "every person with an incurable illness and unbearable suffering." That "incurable" is telling. It's meant to make us believe it refers only to terminal illness, but it actually means something else. Osteoarthritis, for example, is incurable. So is diabetes. So is asymptomatic HIV infection. So is shingles.

Most of the nation's assisted-suicide advocates have at one time or another endorsed euthanasia for patients without terminal illness. Timothy Quill, for example, had written that assisted suicide should be available for the disabled, though he later recanted the idea when confronted with it in front of a congressional committee. Last October, the World Federation of Right to Die Societies advocated in its Zurich Declaration legalized suicide for "all competent adults, suffering sever and enduring distress." Death for the distressed?" The declaration is a call for death on demand.

The idea that euthanasia will be limited to the mentally competent is equally bogus. In Final Exit, Humphry specifically called on states to authorize people to appoint surrogates empowered to order their deaths if they became incompetent.

In response to the 1997 conviction of a Louisiana man who murdered his Alzheimer's-diagnosed father, Girsh issued a press release stating, "A judicial determination should be made when it is necessary to hasten the death of an individual, whether it is a demented parent, a suffering, severely disabled spouse, or a child." A red-faced Girsh subsequently issued a "clarification," but she had already demonstrated that all the talk about limiting euthanasia to mentally competent patients suffering terminal diseases is nothing more than talk.

No book of this sort would be complete without discussing Holland, where euthanasia has been allowed since 1973. Quoting the 1991 Remmelink Report, a Dutch government-sponsored study of euthanasia practices, Humphry and Clement write that "only" 2.3 percent of Dutch deaths are caused by euthanasia and 0.4 percent by assisted suicide, totaling approximately 2,700 deaths per year. At best, these statistics are misleading.

The Remmelink Report applies the term "euthanasia" only to those deaths in which a doctor lethally injects a patient with a poison. But that isn't the only manner in which Dutch doctors intentionally kill their patients. Far more often, they use intentionally massive overdoses of morphine, not to reduce pain but with the primary purpose of ending life. According to the Remmelink Report, there were 8,100 such killings in 1990.

Humphry and Clement also publish the Remmelink statistic that approximately 1,000 people who had not requested euthanasia were killed in 1990 by Dutch doctors. But, the report itself explains that of the admitted 8,100 intentional morphine overdoses, 4,491 were without request or consent. Thus, out of the approximately 11,400 people killed by Dutch doctors in 1990 (about 8.5 percent of the 130,000 Dutch deaths), more than half (5,981) were involuntary. In America, this would amount to about 85,000 involuntary killings per year. This part of the Remmelink Report was considered so significant that the United States Supreme Court cited it in its 1997 refusal to create a constitutional right to assisted suicide.

Freedom to Die acknowledges that Dutch doctors also euthanize depressed people with no organic illness. But far be it from Humphry and Clement to condemn that. They merely ask whether such euthanasia for depression isn't a "step toward a more progressive medical understanding" of human suffering.

They also omit completely the fact that Dutch euthanasia has entered the pediatric wards, where doctors kill babies for "quality of life" considerations. According to a July 1997 article in the British medical journal Lancet, approximately 8 percent of infant deaths in Holland are at the hands of doctors. Of the neonatologists surveyed, 45 percent "had administered drugs with the explicit intention of ending life," as had 31 percent of Dutch pediatricians. The study also found that most such infant killings are not reported to the authorities, a clear violation of Holland's much-vaunted "protective guidelines."

Along with misrepresenting their intentions and distorting their data, Humphry and Clement exaggerate the influence of the Catholic Church. It's true that the Catholic Church has been an effective opponent, but primarily by joining with disability-rights activists, hospice associations, advocates for the poor, right-to-life groups, and most medical and nursing associations. This coalition is so young that it hadn't fully come together when Oregon voters legalized assisted suicide in 1994. It had, however, by last November's election in Michigan, when voters rejected a similar proposal by 71-29 percent.