Oregon's First Year: Raising New Questions

Oregon's report on its first year of legalized assisted suicide, intended to resolve questions about the law's "safeguards," has raised new questions about the possibility of regulating the practice.

This first annual report by the Oregon Health Division was published in the February 18 issue of the New England Journal of Medicine and widely hailed by the law's supporters. It finds only 15 patients dying by lethal overdose in the law's first year, and reports no evidence that guidelines were violated. The New York Times expressed "relief" that the report found "no run on death, no confusion and no abuse" [Editorial, 2/27/99].

Closer scrutiny, however, revealed that the Oregon report was by no means comprehensive. The report's authors even concede that they have no idea how many unreported cases have occurred because of the new law [see page 3].

Among the report's critics is a new group of physicians and others opposed to assisted suicide. In a February 17 press release, Americans for Integrity in Palliative Care said the report "actually conceals facts from the public." In a statement the same day, the Oregon-based group Physicians for Compassionate Care said the report provides little useful information because "the assisted suicide law has no penalty for doctors who do not report cases of assisted suicide."

The state's reporting system is not the only aspect of the Oregon law to raise new questions:

• While the report found no patients who were led to assisted suicide by poverty, all reported cases occurred before the Oregon Health Plan began subsidizing assisted suicide for the poor on December 1 [see November 1998 Life at Risk]. Now the governor and legislature are debating the "massive cuts" in other services that are needed to cut $100 million from state spending on the Plan over the next three years [The Oregonian, 2/26].
  
  
• A new controversy about the state's funding of assisted suicide arose in March. The U.S. Health Care Financing Administration says there is a "remote possibility" that federal Medicaid funds have been used for Oregon's assisted suicides in violation of a 1997 federal statute. In a letter to House Commerce Committee chairman Tom Bliley (R-VA), released by Mr. Bliley on March 24, HCFA Administrator Nancy-Ann Min Deparle said that any misappropriation of federal funds would have occurred before Oregon finished setting up its separate billing procedure for the practice. HCFA officials say the state must reimburse the funds to the federal government if a violation is found [The Oregonian, 3/25].
  
  
• In the most startling development of all, the Oregon attorney general's office has announced that the state's law may have to expand to cover direct killing by physicians to protect the "rights" of physically disabled patients. The context for this statement was the recent case of Patrick Matheny, a patient with Lou Gehrig's disease whose ambivalent quest for an assisted death had been reported for months by the Portland Oregonian. When Matheny finally decided to take the lethal drugs he found he was physically unable to administer them -- prompting his brother to "help" in ways that may go beyond the current law [The Oregonian, 3/11]. Police found no evidence of "foul play" -- Matheny's body had already been cremated -- but the case prompted a debate on the law's requirement that drugs be self-administered [Id., 3/13]. Now the state deputy attorney general says the law's refusal to allow direct killing of physically disabled patients may run afoul of the Oregon constitution and federal disability laws [see page 4]. A central claim used to pass Oregon's law -- that it would not allow doctors to directly kill their patients -- may be about to fall.
  

Kevorkian Convicted of Murder

For the first time in five trials, Jack Kevorkian was convicted of a felony on March 26 for his involvement in a client's death. The Pontiac, Michigan jury deliberated more than a day before finding Kevorkian guilty of second-degree murder and delivery of a controlled substance in the death of 52-year-old Thomas Youk. While not convicted of first-degree murder, which would have carried a mandatory life sentence, Kevorkian still faces the possibility of spending the rest of his life behind bars when sentence is handed down April 14 [Washington Times, 3/27/99].

While Kevorkian has claimed involvement in over 130 deaths, the Youk case was different in two respects: Kevorkian himself gave Mr. Youk a lethal injection, instead of arranging for him to self-administer a lethal dose, and he recorded the event in a videotape aired on CBS' "Sixty Minutes" on November 22.

While Kevorkian was convicted of a misdemeanor last November for scuffling with police at a hospital emergency room, four previous trials on assisted suicide charges ended in three acquittals and a mistrial. Prosecutors initially brought a charge for assisted suicide in the Youk case as well, but withdrew it when Judge Jessica Cooper ruled that the charge would allow Kevorkian to present evidence on Mr. Youk's pain and suffering which could have swayed jurors. Evidence of the victim's consent and motives were deemed irrelevant to a murder charge.

Under the circumstances, Kevorkian called no witnesses and did not take the stand himself. Instead, despite repeated advice to the contrary from Judge Cooper, he acted as his own counsel and made a personal appeal to the jury to nullify existing homicide law. "There are certain acts that by sheer common sense are not crimes," he argued. His aim in giving a lethal injection to Mr. Youk, he said, was to provide "a final solution to incurable agony." Only after jury deliberations began did he reverse his decision and ask to be represented by counsel -- a tactic that may signal a later attempt to have a mistrial declared [Reuters, 3/26].

Kevorkian says the verdict "proves how corrupt the society is, and how malevolent are those who run it." Judge Cooper says she will allow him to remain free on bail until sentencing, on condition that he do nothing unlawful: "No assisted suicide. No injection. No anything" [Washington Times, 3/27].


AMA Clarifies Stance Against Legalization

In a little-noticed action at its semi-annual meeting in December 1998, the nation's largest association of physicians toughened its stand against legalization of assisted suicide.

The American Medical Association's House of Delegates approved a resolution that the group opposes any "bill to legalize physician-assisted suicide or euthanasia, as these practices are fundamentally inconsistent with the physician's role as healer" [Reuters, 12/9/98]. The House of Delegates has approved resolutions on the ethical issue in the past, but until now did not focus as clearly on the legislative issue. The resolution provides a firmer basis for the AMA's past practice of speaking against legalization bills in various states -- even, at times, when a state medical society would not do so.


No Cancer Found in "Mercy Killing" Victim

An autopsy has found no trace of cancer in a hospitalized woman who was shot to death by her husband last fall in an apparent "mercy killing."

Vernal Ohlrich, 76, killed his wife Phyllis, 74, on October 27 as she lay in her bed at Thayer County Hospital in Hebron, Nebraska. Ohlrich thought she was dying of cancer; it is now thought her suffering may have been due to a back injury.

On February 9 Ohlrich pleaded no contest to a manslaughter charge in his wife's death [AP, 2/9].


Key Points: Oregon's First Year of Government-Approved Assisted Suicide

The Oregon Health Division's first annual report on legally sanctioned physician-assisted suicide reveals no violations of the state's guidelines -- but also demonstrates why the reporting system cannot be expected to find such violations. Unless otherwise noted, quotes are from Chin, Hedberg, Higginson and Fleming, "Legalized Physician-Assisted Suicide in Oregon -- The First Year's Experience," 340 New England Journal of Medicine 577-583 (Feb. 18, 1999).

Why the report could not detect abuses:


• All reporting was by suicide assisters themselves, and the Health Division had no way to verify their claims. "We did not interview the patients, their families, or other physicians who provided care at the end of life" (p. 578).
  
  
• The Health Division is "obligated by law to report any cases of noncompliance with the law to the Oregon Board of Medical Examiners," and notified physicians of this fact. Thus physicians had every incentive to falsify reports, making it "difficult, if not impossible, to detect accurately and comment on underreporting" (p. 583).
  
  
• Physicians also had the option of simply not reporting a case if it involved the violation of a guideline. "We cannot determine whether physician-assisted suicide is being practiced outside the framework of the Death with Dignity Act" (p. 583). Governor Kitzhaber testified to Congress's House Judiciary Committee last year that the state has established no penalty for assisting suicides outside the state guidelines.
  
  
• All other possible sources of public information were suppressed. The Health Division declared that any employee who reported a real cause of death to the public, or even admitted that an assisted death had ever taken place in his or her county, "will immediately be terminated" (OHD Memorandum reprinted in Issues in Law & Medicine, Winter 1998, p. 334).
  
  What the report found:
  
  
• The most common factor leading to assisted suicide was not unrelieved pain or even seriousness of illness, but concern about "loss of autonomy" or "loss of control of bodily functions." Many of these patients "had been decisive and independent throughout their lives" (p. 582), and could not cope with being weak or dependent. Only 4 of the 15 received any psychological assessment (p. 579).
  
  
• The most decisive social factor: never having married, a factor 24 times more likely among these patients than a control group (p. 580). Loners with no family support system are choosing assisted suicide.
  
  
• Regarding the time it took for lethal drugs to cause death: "Although the majority of patients died within 1 hour, four patients died more than 3 hours after taking the prescribed medications, and one died 11.5 hours afterward" (p. 582). All used federally controlled substances, generally barbiturates.
  
  
• In 40% of cases (6 out of 15), patients were turned down by one or more physicians before finding one who would write a lethal prescription (p. 582). (In the first reported case, two physicians had refused, and one had made an initial diagnosis of clinical depression, before the patient was referred to a willing physician by a pro-suicide group -- see March 1998 Life at Risk.) Assisted suicide patients, on the average, had known their physician about one-tenth as long as control patients (69 days vs. 720 days) (p. 581). At a February 25 briefing for congressional staff in Washington, D.C., Dr. Katrina Hedberg of the Oregon Health Division conceded that suicide advocacy groups had counseled patients or otherwise played a role in "10 or 11" of the 15 cases.
  

A recent assisted suicide in Oregon has raised the question whether the state law "discriminates" against people who are physically unable to self-administer lethal drugs. What follows is from a March 15 letter by Oregon deputy attorney general David Schuman to state senator Neil Bryant, chair of the Senate Judiciary Committee, on this issue:

In response to recent assisted suicide in Coos County, last Saturday's Oregonian (March 13) ran a story in which the Sheriff, Paul Burgett, suggested that "it would be unlawful to say that we're not going to allow disabled people to make the same sorts of decisions and have the same rights as people who have the physical ability to accomplish their objectives." The same article reported that I "said Burgett raised an interesting issue about possible discrimination." You have asked me to elaborate.

Under judicial interpretations of both Oregon Constitutional law and federal statutory law, when a state law or regulation, on its face, does not discriminate against -- or even mention --any particular identifiable minority group, but the law will nonetheless have a disproportionately burdensome impact on such a group, then that law will be treated as though the discrimination were intentional...

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. The Act specifies that the only lawful method of "death with dignity" is "medication," and it refers to the method of taking this medication as "ingestion." 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. Thus, the Act would be treated by courts as though it explicitly denied the "benefit" of a "death with dignity" to disabled people.

This fact, in turn, makes the Death with Dignity Act vulnerable to challenge under both Article I, section 20 of the Oregon Constitution (under which the state must make privileges and immunities available to all classes of citizens on the same terms), and Title II of the Americans with Disabilities Act (which, with certain exceptions, prohibits government from denying benefits or services to disabled persons)... Some of the novel legal issues that would arise under the Oregon Constitution would be: is "death with dignity" a "privilege"? are disabled persons a cognizable "class" for purposes of the Oregon Constitution? is the discrimination caused by the Act justified by verifiable biological differences between the disabled and others? Similar issues would arise under the ADA, as well as issues regarding the necessity of the State providing "reasonable accommodation" that would enable the disabled to avail themselves of the Act's provisions...

If you would like a more in-depth examination of any of these issues, please let me know and I will make available to you the services of the Department of Justice.

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