Thursday, May 16, 2013

Fight Over Assisted Suicide Moves Back to Court

http://billingsgazette.com/news/state-and-regional/montana/fight-over-assisted-suicide-moves-back-to-court/article_7985baad-87a0-592a-b6dd-187073a4c47f.html?print=true&cid=print

Matt Gouras, Associated Press
May 8, 2013

HELENA — The fight over physician-assisted suicide in Montana is moving back to the courtroom after the Legislature failed this session to clarify that the practice is specifically legal or illegal.

Montanans Against Assisted Suicide is trying to strike the state Board of Medical Examiners' policy that guides doctors in the matter.

A Helena judge has scheduled oral arguments for next month in the case. The lawsuit was filed in December.    Since then, the Montana Legislature failed in efforts to either clarify that the practice is specifically legal or illegal. It was the second straight session where lawmakers couldn't agree on which direction to take the state.

[To view the lawsuit's petition and attachments, click here , here and here]

Individuals and Groups Who Worked with MAAS in the 2013 Legislative Session


The following is a sampling of individuals and groups who worked with Montanans Against Assisted Suicide during the 2013 legislative session:

1.  112 Montana doctors who joined together to support HB 505.  See this link for their press release:  http://www.montanansagainstassistedsuicide.org/2013/03/112-montana-physicians-who-support-hb.html

2.  The national disability rights group, Not Dead Yet, with members in Montana, endorsed HB 505.  See http://www.montanansagainstassistedsuicide.org/2013/03/not-dead-yet-supports-hb-505.html

3.  Carol Mungas, the widow of a prominent physician who was euthanized by nurses against his will in Great Falls, endorsed HB 505.  See http://www.montanansagainstassistedsuicide.org/2013/03/i-support-house-bill-505-which-clearly.html

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Wednesday, May 8, 2013

Fight Over Assisted Suicide Moves Back to Court

http://billingsgazette.com/news/state-and-regional/montana/fight-over-assisted-suicide-moves-back-to-court/article_7985baad-87a0-592a-b6dd-187073a4c47f.html?print=true&cid=print

Matt Gouras, AP

HELENA — The fight over physician-assisted suicide in Montana is moving back to the courtroom after the Legislature failed this session to clarify that the practice is specifically legal or illegal.

Montanans Against Assisted Suicide is trying to strike the state Board of Medical Examiners' policy that guides doctors in the matter.

A Helena judge has scheduled oral arguments for next month in the case. The lawsuit was filed in December.    Since then, the Montana Legislature failed in efforts to either clarify that the practice is specifically legal or illegal. It was the second straight session where lawmakers couldn't agree on which direction to take the state.

[To view the lawsuit's petition and attachments, click here , here and here]

Friday, May 3, 2013

Assisted suicide is still not legal

http://missoulian.com/news/opinion/mailbag/dignity-in-death-assisted-suicide-is-still-not-legal/article_1e19a630-b332-11e2-8c96-0019bb2963f4.html

May 2, 2013

I disagree that the defeat of House Bill 505 somehow renders assisted suicide legal under the Montana Supreme Court case, Baxter v. State. (“Montana Senate rejects doctor-assisted suicide bill”).

In the 2011 legislative session, Sen. Anders Blewett and I introduced competing bills in response to Baxter, which did not legalize assisted suicide. Baxter does, however, have toe-in-the-door type language, which invites legalization in the future. Neither bill passed. His bill had sought to legalize assisted suicide; mine had sought to reverse Baxter.

During the hearing on Blewett’s bill, he conceded that assisted suicide was not legal under Baxter. He said: “under the current law ... there’s nothing to protect the doctor from prosecution.” Dr. Stephen Speckart provided similar testimony: “most physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision.” (To view a transcript, see http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf .)
This session, there was a similar situation. SB220, which had sought to legalize assisted suicide, was defeated. HB505, which would have reversed Baxter, was also defeated.

In other words, Baxter, which did not legalize assisted suicide, remains the law. Assisted suicide is not legal in Montana. For more information, see www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html .

Greg Hinkle,
Senator (ret.)
Thompson Falls

Thursday, May 2, 2013

Assisted Suicide is Not Legal in Montana

Below, is a letter by attorney Craig Charlton.  For a print copy, click here.

Dear Physician:  

I represent Montanans Against Assisted Suicide & For Living with Dignity.  You may have received a letter from Compassion & Choices, formerly known as the  Hemlock Society, dated June 5, 2012.  The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009.  This is untrue.  I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.

The letter states: “Physicians [under Baxter] can provide prescriptions to such patients without fear that doing so could give rise to criminal or disciplinary sanction."  This statement is contrary to Baxter, which merely gives doctors a defense to prosecution.  Baxter states:

"We therefore hold that under § 45-2-211, MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply."

You may also be interested in this analysis of Baxter by attorneys Greg Jackson and Matt Bowman: 

"[T]he Court's narrow decision didn't even "legalize" assisted suicide. . . .  After Baxter, assisted suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[1]

Please note that the "aid in dying" letter omits any discussion of a doctor’s potential civil liability for wrongful death and/or malpractice.  Baxter did not overrule Montana case law imposing civil liability on doctors who cause or fail to prevent a suicide.  See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, Para 32-33 (1999).  Other cases include Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997) (affirming a civil judgment against a physician who had prescribed an ”excessively large dosage” of barbiturates to a suicidal patient who then killed herself with the barbiturates). 

For another example, see William Dotinga, “Grim Complaint Against Kaiser Hospital,” at http ://www.courthousenews.com/2012/02/06/43641.htm   This case is relevant to Baxter given that patient consent is the linchpin to  Baxter's defense to prosecution.  Moreover, even if a doctor avoids prosecution, there is civil liability. 

Finally, the letter also omits that the Montana Medical Board’s position statement is subject to ongoing challenge by my client.  I encourage you to review the information submitted to the Board on this issue and the information found at my client's website describing why legalization of assisted suicide would be a recipe for elder abuse.  See http://www.montanansagainstassistedsuicide.org/2012/03/medical-examiner-board-statement-is.html
Please contact me with any questions or concerns.  

Yours truly,

/s/

By:  Craig D. Charlton

[1]  “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at 
http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Wednesday, May 1, 2013

"If [Kress] is convicted, it will be under Baxter, not HB505."

http://missoulian.com/news/opinion/mailbag/physician-assisted-suicide-bill-will-not-be-retroactive/article_754b842a-adb8-11e2-b78b-0019bb2963f4.html

Physician-assisted suicide:  Bill will not be retroactive


Dr. Eric Kress, who claims to have assisted three suicides, is either uniformed or disingenuous about the legality of assisted suicide as described in his guest column (April 7). The present law, as taken from the Baxter case, is that under certain circumstances a physician who assisted someone to kill himself has a defense to a charge of homicide. If the doctor is charged with homicide and convinces a jury of certain facts, he will not be convicted.
Kress claims instead that his conduct will be judged under House Bill 505, which if enacted, will clarify the law of assisted suicide in the future. HB505 is not retroactive and will not apply to Kress and his three cases. If he is convicted, it will be under Baxter, not HB505.
I started out thinking that I was for legalizing physician-assisted suicide and moved to the other side after listening to the evidence. Legalizing physician-assisted suicide will lead to elder abuse. I support HB505, which clearly prohibits physician-assisted suicide.
Jim Shockley, Attorney at Law, 
Victor MT