1 DEFINING THE RIGHT TO DIE By MICHAEL D. LEMONICK Monday, Apr.

15, 1996
2 DR. BRY BENJAMIN WILL NEVER FORGET the first time he helped a patient commit suicide. It was
3 more than a quarter-century ago. An elderly couple came to his office, husband and wife, both terminally ill
4 and in terrible agony with cancer. They told me they would like a supply of pills on hand just in case,
5 recalls the 71-year-old New York City internist. The law forbade him to agree; his conscience dictated
6 otherwise. In the end, his conscience won, but Benjamin had to wrestle with this ethical dilemma alone. At
7 the time, doctors didnt even whisper among themselves about assisted suicide, much less debate it in
8 medical journals.
9 Suddenly doctors are talking about little else. In a decision that took legal scholars and medical ethicists by
10 surprise last week, the Second Circuit Court of Appeals struck down a New York State law that prohibited
11 physicians from helping their patients die. Its already legal for doctors to withhold or withdraw treatment at
12 a patients request. Now, as long as a patient is in the final stages of a terminal disease, mentally competent
13 and able to take a lethal dose of medicine on his or her own, the state cant bar a doctor from prescribing that
14 dose.
15 Taken alone, the three-judge panels decision would be important enough, but it comes after a similar ruling
16 last month by the Ninth Circuit Court in San Francisco, also one of the nations most influential appeals
17 courts. Unless the Supreme Court reverses both decisionsand theres no guarantee it will even hear the
18 casesthe laws against physician-assisted suicide now on the books in a majority of states may be on their
19 way out. In the past 30 days there have been more developments in this field than there have been in the
20 previous 20 years, says University of Michigan law professor Yale Kamisar.
21 If so, it means the law is finally catching up to what some physicians have been quietly doing all along. In a
22 survey of Oregon doctors published in the New England Journal of Medicine earlier this year, 60% said they
23 should be able to help some terminal patients die, and 7% admitted to having done so. The actual number,
24 say ethicists, may be much higher.
25 Yet because the practice has been carried out in private, the medical establishment has yet to develop a
26 consensus on how and when to help a patient die. Until now, explains Leslie Pickering Francis, a professor
27 of law at the University of Utah, patients who are sophisticated enough to want the aid and physicians who
28 are sympathetic enough to want to give it often do it in such a way that the intent and the knowledge are left
29 deliberately ambiguous. Only a few, like Dr. Jack Kevorkian, have defied this conspiracy of silence.
30 But now that legal prohibitions against assisted suicide may be crumbling, doctors all over the country could
31 soon be as up front as Kevorkiana prospect that has always disturbed many of them. For one thing, doctors
32 may become more vulnerable to lawsuits because they will suddenly be open to scrutiny by family members
33 and attorneys. If health professionals are going to be held accountable, says Dr. Howard Grossman, one of
34 the three doctors who successfully challenged the New York law, there must be clear guidelines of what
35 constitutes a terminally ill patient.
36 Many physicians also fear that making the practice legal will lead to ill-considered decisions to terminate
37 life. Some doctors believethough have not provedthat a 1993 Dutch decision to legalize euthanasia has
38 resulted in some cases of mercy killing without the patients explicit consent. Clinical depression can often
39 be the reason behind a terminal patients death wish; so can unremitting, intense pain. Says Dr. William
40 Wood, clinical director of the Winship Cancer Center at Emory University in Atlanta: If we treat their
41 depression and we treat their pain, Ive never had a patient who wanted to die. Even those who believe
42 assisted suicide is ethically sound agree that it should not be undertaken lightly. Benjamin, whose car sports
43 a bumper sticker reading GOOD LIFE, GOOD DEATH, gets one or two requests a month for help in dying
44 but talks most of his patients out of it. Says he: You dont want to give pills to someone you think decided
45 to commit suicide on Tuesday and on Wednesday would have changed his mind.
46 Is that a good argument for keeping the practice illegal? No, says Grossman: Its incredibly arrogant to say
47 nobodys going to be careful so we shouldnt let patients make this decision for themselves. What doctors
48 do need is a set of standards that make clear the role a physician should play in letting a patient go. How
49 imminent should death be? How do physicians make sure a patient is mentally competent and really wants to
50 die? What alternatives should be suggested? What sort of counseling is appropriate? The American Medical
51 Association presently frowns upon doctors who participate in patient suicide. Now it has announced plans to
52 revisit the matter. Reported by Jenifer Mattos and Andrea Sachs/New York
53 With reporting by JENIFER MATTOS AND ANDREA SACHS/NEW YORK
54 Find this article at: http://www.time.com/time/magazine/article/0,9171,984389,00.html