By Margaret Dore, Esq.
Barbara Coombs Lee, President of Compassion & Choices, has posted a propaganda piece on Huffington Post falsely claiming that a physician who assists a suicide in Montana is "safe" from prosecution. My request for equal time to correct the record on Huffington Post has been ignored. A discussion of the actual law of Montana is set forth below.
There are just two states where physician-assisted suicide is legal: Oregon and Washington. These states have statutes that give doctors and others who participate in a qualified patient’s suicide, immunity from criminal and civil liability. (ORS 127.800-995 and RCW 70.245).
In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009). Baxter gives doctors who assist a suicide a potential defense to criminal prosecution. Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability. Under Baxter, a doctor cannot be assured that a particular suicide will qualify for the defense.
B. The Baxter Decision is Wrong
Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy. (354 Mont. at 240, ¶¶ 13, 49-50). Based on this finding, the Court held that a patient’s consent to assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.” (Id. at 251, ¶ 50).
Baxter, however, overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide. See e.g., Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999). Baxter also overlooked elder abuse. The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.” (354 Mont. at 239, ¶ 11). The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.
The Baxter decision is fundamentally flawed and wrong.
C. Doctors are not "Safe" Under Baxter
Baxter is a narrow decision via which doctors cannot be assured that a particular suicide will qualify for the defense. Attorneys Greg Jackson and Matt Bowman provide this analysis:
"If the patient is less than 'conscious,' is unable to 'vocalize' his decision, or gets help because he is unable to 'self-administer,' or the drug fails and someone helps complete the killing, Baxter would not apply. . . .
Even if a doctor "beats the rap" on prosecution, there is the issue of civil liability. See Krieg and Nelson, supra. Like O.J. Simpson, a doctor who escapes criminal liability could find himself sued by a family member upset that he "killed mom." The doctor could be held liable for civil damages.
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Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org) She is also an attorney in Washington State where assisted suicide is legal.
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