Under Oregon’s law
permitting physician-assisted suicide, the Oregon Department of Human
Services (DHS) – previously called the Oregon Health Division (OHD) – is required to collect information,
review a sample of cases and publish a yearly statistical report. (1)
Since the law, called the "Death with Dignity Act," went into effect in 1997,
seven
official reports have been published. However, due to major flaws in the law and the
state's reporting system, there is no way to know for sure how many or under what
circumstances patients have died from physician-assisted suicide.
ASSISTED SUICIDE DEATHS REPORTED DURING FIRST SEVEN YEARS
Official Reports: 208
Actual number: Unknown
The latest annual report indicates that reported assisted-suicide deaths have increased
by more than 225% since the first year of legal assisted suicide in Oregon.
(2) The number of deaths, however, could be far greater. From the time the law went into effect, Oregon officials in charge of
formulating annual reports have conceded “there’s no way to know if
additional deaths went unreported” because Oregon DHS “has no regulatory
authority or resources to ensure compliance with the law.” (3)
The DHS has to rely on the word of doctors who prescribe the lethal
drugs. (4) Referring to physicians' reports, the reporting division
admitted: "For that matter the entire account [received from doctors]
could have been a cock-and bull story. We assume, however, that
physicians were their usual careful and accurate selves." (5)
The Death with Dignity law contains no penalties for doctors who do
not report prescribing lethal doses for the purpose of suicide.
COMPLICATIONS OCCURRING DURING ASSISTED SUICIDE
Official Reports: 10 (instances of vomiting)
Actual Number: Unknown
Prescribing doctors may not know about all complications since,
during the seventh year, physicians who prescribe the lethal drugs for
assisted suicide were present at fewer than 16% of reported deaths.(6)
Information they provide might come from secondhand accounts of those
present at the death (7) or may be conjecture.
Complications found in news reports are not included in official reports:
- Patrick Matheny received his lethal prescription from Oregon Health Sciences University
via Federal Express. He had difficulty when he tried to take the drugs four months later.
His brother-in-law, Joe Hayes, said he had to "help" Matheny die. According to
Hayes, "It doesn’t go smoothly for everyone. For Pat it was a huge problem. It
would have not worked without help." (8)
- Speaking at Portland Community College, pro-assisted-suicide attorney
Cynthia Barrett described a botched assisted suicide. "The man was at home. There was
no doctor there," she said. "After he took it [the lethal dose], he began to
have some physical symptoms. The symptoms were hard for his wife to handle. Well, she
called 911. The guy ended up being taken by 911 to a local Portland hospital. Revived. In
the middle of it. And taken to a local nursing facility. I don’t know if he went back
home. He died shortly – some….period of time after that…"
(9)
Overdoses of barbiturates are known to cause vomiting as a person begins to lose
consciousness. The patient then inhales the vomit. In other cases, panic, feelings of
terror and assaultive behavior can occur from the drug-induced confusion.
(10) But Barrett
wouldn’t say exactly which symptoms had taken place in this instance. She has refused
to discuss the case since her December 1999 revelation.
David Prueitt took the prescribed lethal dose in the presence of his family and
members of Compassion & Choices (C & C). [C & C is the name of the
merged Compassion in Dying and Hemlock Society organizations.] After being
unconscious for 65 hours, he awoke. It was only after his family told the
media about the botched assisted suicide that C & C publicly acknowledged
the case. (11) DHS issued a release saying it "has no authority
to investigate individual Death with Dignity cases." (12)
In the Netherlands, assisted-suicide complications and problems are not
uncommon. One Dutch study found that, because of problems or
complications, doctors in the Netherlands felt compelled to intervene (by giving
a lethal injection) in 18% of cases. (13) This led Dr. Sherwin Nuland of
Yale University of Medicine to question the credibility of Oregon's lack of
reported complications. Nuland, who favors physician-assisted suicide,
noted that the Dutch have had years of practice to learn ways to overcome
complications, yet complications are still reported. "The Dutch
findings seem more credible [than the Oregon reports]," he wrote. (14)
ASSISTED SUICIDE DEATHS OF PATIENTS WITH DEMENTIA
Official Reports: 0
Actual Number: Unknown
Kate Cheney, 85, died of assisted suicide under Oregon’s law even though she reportedly was suffering from early dementia. Her own
physician declined to provide the lethal prescription. When counseling to determine her
capacity was sought, a psychiatrist determined that she was not eligible for assisted
suicide since she was not explicitly seeking it, and her daughter seemed to be
coaching her to do so. She was then taken to a psychologist who determined that she was
competent but possibly under the influence of her daughter who was "somewhat
coercive." Finally, the managed care ethicist, who was overseeing her case,
determined that she was qualified for assisted suicide, and the drugs were prescribed.
(15)
ASSISTED SUICIDE DEATHS OF DEPRESSED PATIENTS
Official Reports: 0
Actual Number: Unknown
- The first known assisted-suicide death under the Oregon law was that of a woman in her
mid-eighties who had been
battling breast cancer for twenty-two years. Two doctors, including her own physician who
believed that her request was due to depression, refused to prescribe the lethal drugs.
Then Compassion in Dying (CID) became involved. Dr. Peter Goodwin, medical director of
CID,(16) determined that she was an "appropriate candidate" for death and
referred her to a doctor who provided the lethal prescription. In an audiotape, made two
days before her death and played at a CID press conference, the woman said, "I will be
relieved of all the stress I have." (17)
- In 2001, Dr. Peter Reagan, an assisted-suicide advocated affiliated
with CID, gave Michael Freeland a prescription for lethal drugs under
Oregon's law. Freeland, 64, had a 43-year history of acute
depression and suicide attempts. However, when Freeland and his daughter
went to see Dr. Reagan about arranging a legal assisted suicide, Reagan
said he didn't think that a psychiatric consultation was
"necessary." (18)
During the last year for which reports are available, only 5% of patients
were referred for a psychological evaluation or counseling before
receiving a prescription for assisted suicide. (19) Under the
assisted-suicide law, depressed or mentally ill patients can receive
assisted suicide if they do not have "impaired judgment." (20)
Concerning the decision to refer for a psychological evaluation, Oregon
epidemiologist Dr. Mel Kohn said, "According to the law, it's up to
the docs' discretion." (21)
ASSISTED SUICIDE REQUESTS BASED ON FINANCIAL CONCERNS
Official Reports: 6
Actual number: Unknown
Data about reasons for requests is based on prescribing doctors'
understanding of patients' motivations. It is possible that
financial concerns were much greater than reported. According to
official reports, 36% of patients whose deaths were reported
were on Medicare (for senior citizens) or Medicaid (for the poor). (22)
However, after the second annual report, the reports have not
differentiated between Medicare and Medicaid patients dying from assisted
suicide. Oregon's Medicaid program pays for assisted suicide (23) but not for many other
medical interventions that patients need and want.
PATIENTS WHO RECEIVED LETHAL DOSE MORE THAN 6 MONTHS BEFORE DEATH
Official Reports: 2 or 4 (After 2nd year, official
reports deleted category)
Actual Number: Unknown
Lethal prescriptions under the "Death with Dignity Act" are supposed to
be limited to patients who have a life expectancy of six months or less.
(24) However, one patient was still alive 17 months after the lethal drugs
were prescribed. (25)
During the first two years of the law's implementation, at least
one lethal dose was prescribed more than 8 months before the patient took it.
(26) The sixth annual report noted that 2 patients who received prescriptions in 2002 and
another who received the prescription in 2001 died from the lethal drugs in 2003.
(27)
The DHS is not authorized to investigate how physicians determine their patients’
diagnoses or life expectancies.(29) If physicians are prescribing for
patients who do not have a terminal condition, there is no way to find out
since the same doctors who are violating the guidelines would have to
report their own violations. "[N]oncompliance is difficult to
assess because of the possible repercussions for noncompliant physicians
reporting data to the division." (30)
SHORTEST LENGTH OF TIME REPORTED FOR PRESCRIBING DOCTOR/PATIENT RELATIONSHIP
Official Reports: Less than 1 week
Actual length: Unknown
Although Oregon's assisted-suicide law requires that at least 2 weeks must elapse between the
patient's first and last requests for lethal drugs,(31) the physician who
actually prescribes the drugs for assisted
suicide need not be the same physician to whom the first request was made.
For the 3rd through the 6th years, the doctor-patient relationship in some assisted
suicide cases was under one week.(32) Thus, either
some physicians are not complying with the 2 week requirement or they stepped in to write
an assisted-suicide prescription after other physician(s) refused.
FIRST PHYSICIAN ASKED AGREED TO WRITE PRESCRIPTION
Official Reports: 27 (41%) (After 3rd year, official
reports deleted category)
Actual number: Unknown
"Many patients who sought assistance with suicide had to ask more than one
physician for a prescription for lethal medication." (33) Patients
or their families can "doctor shop" until a willing physician is found. There
is no way to know, however, why the previous physicians refused to lethally prescribe
(i.e. the patient was not terminally ill, had impaired judgment, etc.), since
non-prescribing
physicians are not interviewed for the official state reports. The
only physicians interviewed for official reports are those who actually
wrote lethal drug prescriptions for patients. (34)
The unwillingness of many physicians to write lethal prescriptions led
one HMO to issue a plea for physicians to facilitate assisted suicide and has
also resulted in an assisted-suicide advocacy organization's involvement in most
assisted-suicide cases.
- HMO's efforts to facilitate assisted suicide
On August 6, 2002, Administrator Robert Richardson, MD of Oregon's
Kaiser Permanente sent an e-mail to doctors affiliated with
Kaiser, asking doctors to contact him if they were willing to act as
the “attending physician” for patients requesting assisted
suicide. According to the message, the HMO needed more willing physicians because, “Recently
our ethics service had a situation where no attending MD could be
found to assist an eligible member in implementing the law for three
weeks....” (35)
Gregory Hamilton, MD, a Portland
psychiatrist pointed out that the Kaiser message caused concern for
several reasons. “This
is what we’ve been worried about: Assisted suicide would be
administered through HMOs and by organizations with a financial stake
in providing the cheapest care possible,” he said. Furthermore, despite promoters’ claims that assisted suicide
would be strictly between patients and their long time, trusted
doctors, the overt recruitment of physicians to prescribe the lethal
drugs indicated that those claims were not accurate. Instead, “if someone wants assisted suicide, they go to an
assisted-suicide doctor – not their regular doctor.”(36)
Kaiser’s Northwest Regional Medical
Director Allan Weiland, MD, called Hamilton’s comments “ludicrous
and insulting.” (37) However, it appears that Hamilton was correct, as
the involvement of an assisted-suicide advocacy group indicates.
-
Assisted-suicide
advocacy group involved in majority of assisted-suicide deaths
If a physician opposes assisted
suicide or believes the patient does not qualify under the law,
Compassion in Dying (CID) has often arranged the death. According to Dr. Peter Goodwin, CID’s medical director, about
75 percent of those who died using Oregon’s assisted-suicide law
through the end of 2002 did so with CID’s assistance.(38) During the
2003 calendar year, CID was involved in 79 percent of such deaths.(39)
[Note: In early 2005, Compassion in Dying merged with the Hemlock
Society and is now called Compassion and Choices.]
There are other troubling aspects of the Oregon experience.
Family members do not need to be informed before a doctor
helps a loved one commit suicide.
Family notification is only recommended, but not require, under
Oregon's assisted-suicide law.(40) The first time that a family
learns that a loved one was considering suicide could be after the
death has occurred.
Oregon's law provides greater protection for doctors than
for patients.
While assisted-suicide advocates claim that patients are given
new rights under Oregon's law, nothing could be farther from the
truth. Prior to the law's passage, patients could request,
but doctors could not provide, assisted suicide. It was
illegal and unethical for a physician to knowingly participate in
a patient's suicide. The law actually empowers doctors by
promising them legal immunity if they provide a patient with an
intentionally fatal prescription. Yet, advocates still say
that the law grants patients a new legal right - the right to ask
their doctors for suicide assistance, even though such a request
was never illegal. Suicide requests from patients may have
been cries for better pain control, support, or psychiatric help -
but they were never a crime.
In addition, doctors who prescribe assisted suicide under
Oregon's law are exempt from the standard of care that they are
required to meet when providing other medical services.
Under the assisted-suicide law, a health care provider is not
subject to criminal or civil liability or any other professional
disciplinary action as long as the provider is acting in
"good faith." (41) This subjective "good
faith" standard is far less stringent than the objective
"reasonable standard of care" which physicians are
required to meet for compassionate medical care such as hospice,
palliation or curative treatment.
As a result, a doctor who negligently "participates"
(42) in assisted suicide cannot be held accountable so long as he
or she claims to have acted in "good faith." On
the other hand, a doctor who negligently provides other medical
interventions can be held legally accountable in civil court
regardless of his or her "good faith."
This lowering of the standard of care for assisted suicide
could serve as an inducement for doctors to recommend assisted
suicide over palliative care at the end of life.
In the coming months, other states will be considering
Oregon-type laws. It remains to be seen whether
decision-makers will rely on the deceptively rosy picture painted
by assisted-suicide supporters, or on its reality.
Endnotes:
(1) ORS 127.865 §3.11.
(2) DHS, "Seventh Annual Report on Oregon’s Death with
Dignity Act," March 10, 2005. (http://egov.oregon.gov/DHS/ph/pas/docs/year7.pdf)
(3) Linda Prager, "Details emerge on Oregon’s first
assisted suicides, " American Medical News, September
7, 1998.
(4) Joe Rojas-Burke, "Suicide critics say lack of problems
in Oregon is odd," Oregonian, February 24, 2000.
(5) Oregon Health Division, CD Summary, vol. 48, no. 6
(March 16, 1999), p. 2. (http://www.ohd.hr.state.or.us/chs/pas/pascdsm2.htm)
(6) Supra note 2, p. 14.
(7) DHS, "Fifth Annual Report on Oregon’s Death with
Dignity Act," March 6, 2003, p. 9. (http://www.ohd.hr.state.or.us/chs/pas/year5/ar-index.cfm)
(8) Erin Hoover, "Dilemma of assisted suicide: When?"
Oregonian, January 17,1999 and Erin Hoover, "Man with
ALS makes up his mind to die," Oregonian, March 11,
1999.
(9) Audio tape on file with author. Also see Catherine
Hamilton, "The Oregon Report: What’s Hiding behind the
Numbers?" Brainstorm, March 2000 (http://www.brainstormnw.com);
David Reinhard, "The pills don’t kill: The case, First of
two parts," Oregonian, March 23, 2000 and David
Reinhard, "The pills don’t kill: The cover-up, Second of
two parts," Oregonian, March 26, 2000.
(10) Johanna H. Groenewoud et al, "Clinical
Problems with the Performance of Euthanasia and Physician-Assisted
Suicide in the Netherlands," 342 New England Journal of
Medicine (February 24, 2000), pp. 553-555.
(11) Associated Press, "Assisted suicide attempt
fails," March 4, 2005.
(12) DHS news release, "No authority to investigate Death
with Dignity case, DHS says," March 4, 2005.
(13) Supra note 10.
(14) Sherwin Nuland, "Physician-Assisted Suicide and
Euthanasia in Practice," 342 New England Journal of
Medicine (February 24, 2000), pp. 583-584.
(15) Erin Barnett, "A family struggle: Is Mom capable of
choosing to die?" Oregonian, October 17, 1999.
(16) Dr. Peter Goodwin was an Associate Professor (now
professor emeritus) in the Department of Family Medicine at the
Oregon Health Sciences University in Portland, Oregon and was
Chair of Oregon Right to Die during the campaign to pass Oregon’s
assisted-suicide law. He had been active in the Hemlock Society.
Speaking at a 1993 Hemlock conference in Orlando, Florida, he
explained that he favored both the lethal injection and assisted
suicide, but he realized that most people were not yet ready to
accept the former so incremental steps would need to be taken.
(17) Erin Hoover and Gail Hill, "Two die using suicide
law; Woman on tape says she looks forward to relief," Oregonian,
March 26, 1998; Kim Murphy, "Death Called 1st
under Oregon’s New Suicide Law," Los Angeles Times,
March 26, 1998; and Diane Gianelli, "Praise, criticism follow
Oregon’s first reported assisted suicides," American
Medical News, April 13, 1998.
(18) N. Gregory Hamilton, M.D. and Catherine Hamilton, M.A.,
"Competing Paradigms of Responding to Assisted-Suicide
Requests in Oregon: Case Report," presented at the American
Psychiatric Association Annual Meeting, New York, New York, May 6,
2004. (http://www.pccef.oorg/articles/art28.htm)
(19) Supra note 2, pg. 13.
(20) ORS 127.825 §3.03.
(21) Andis Robenznieks, "Assisted-suicide numbers in
Oregon," American Medical News, April 5, 2004.
(22) Supra note 2, p. 24, Table 4.
(23) Erin Hoover Barnett, "Suicide coverage passes
review," Oregonian, April 26, 1999.
(24) ORS 127.800 §12; ORS 127.815 §a.
(25) Supra note 18.
(26) Department of Human Services (DHS), Oregon Health Division
(OHD), "Oregon’s Death with Dignity Act: The Second Year’s
Experience," February 23, 2000, Table 2. (http://www.ohd.hr.state.or.us/chs/pas
/year2/ar-index.cfm)
(27) DHS, "Sixth Annual Report on Oregon’s Death with
Dignity Act," March 10, 2004, p. 11. (http://www.ohd.hr.state.or.us/chs/pas
/ar-index.cfm)
(28) Supra note 2, p. 12.
(29) Katrina Hedberg et al, Letter to the Editor in response to
"The Oregon Report: Neutrality at OHD?," Hastings
Center Report, January-February 2000, p. 4.
(30) Amy Sullivan, Katrina Hedberg, David Fleming,
"Legalized Physician-Assisted Suicide in Oregon – The
Second Year," 342 New England Journal of Medicine
(February 24, 2000), p. 603.
(31) ORS 127.840 §3.08.
(32) Supra note 2, p. 25.
(33) Supra note 30.
(34) Supra note 2, p. 10.
(35) Andis Robeznieks, "HMO query reignites
assisted-suicide controversy," American Medical News,
September 9, 2002.
(36) Ibid.
(37) Ibid.
(38) Transcript of tape of Peter Goodwin, "Oregon,"
January 11, 2003, presented at 13th National Hemlock
Biennial Conference, "Charting a New Course, Building on a
Solid Foundation, Imagining a Brighter Future for America’s
Terminally Ill," January 9-12, 2003, Bahia Resort Hotel, San
Diego California.
(39) "Compassion in Dying of Oregon Summary of Hastened
Deaths," Data attached to Compassion in Dying of Oregon’s
IRS Form 990 for 2003.
(40) ORS 127.835, §3.05.
(41) ORS 127.885, §4.01 (1).
(42) "Participate" means to perform the duties of an
attending physician, consulting physician, or counseling function
described in the law ORS 127.885, §4.01(5)(D)(b).
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