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  • Taking Chances2:24

            On November 5th, voters in Washington State will cast their ballot to decide if their state will be the first in the nation to allow terminally ill patients to commit suicide with the help of their doctor. Under this proposal, appearing as Initiative 119 on the November ballot, an adult patient could choose to commit suicide with the assistance of his or her doctor if two requirements had been met:  one, the patient had been told he or she had six months to live and this diagnosis was confirmed in writing by two doctors, and, two, the patient had signed a written form stating if she was in a medically terminal state that he or she would choose to to die.   This initiative would add language to Washington's existing Living Will statute that would allow the patient to choose to commit suicide.  The choice would be made in the same fashion as one would choose to refuse medical treatment under a "Living Will".  The patient would sign a "Directive to Physicians" in which the patient would state, in part,"I direct that upon my request my physician provide aid-in-dying so that I might die in a dignified, painless andhumane manner."

   This Directive to Physicians must be witnessed by two people that can attest to the patient's competence.  The opponents of Initiative 119 argue that the living will statute is sufficient to protect to interests of the terminally ill.  The new law, it is argued provides no safeguards for depressed persons who in a moment of despair ask for a lethal injection from their doctor.  Further, the initiative provides no safeguards for patients who are misdiagnosed as terminal and choose to commit suicide.

      The proponents state that the current Living Will law does not adaquately protect the wishes of terminally ill.  The proponents argue that if the diagnosis is confirmed by two qualified physicians, a conscious and mentally competent dying adult should be able to make the choice whether he or she wants to continue living.

            This initiative is the first of its kind and has sparked a great deal of debate both in Washington State and throughout the country on the controversial topic of euthanasia.  This issue, which had been latent for some time, has resurfaced this year with the popularity of the book "Final Exit" authored by Derek Humphry and published by the Hemlock Society, which outlined methods of suicide. 

            According to newspaper reports, the medical community has been split on the ballot measure.  The House of Delegates of Washington's Medical Association recently voted to oppose Initiative 119 but when the entire Medical Association was polled the membership was evenly split for and against the initiative.

            If the initiative passes, it is likely to spark similiar petitions and initiatives in other states.  It is important, therefore, that doctors and their insurers be aware of the potential legal implications of the legalization of euthanasia. 

            First, if the initiative passes, it will likely spawn lawsuits attempting to declare the law unconstitutional.  It is impossible to predict the outcome of such litigation at this point.

            Second, the immediate impact of a law legalizing euthanasia is that it would remove the criminal and civil penalties that currently exist against any health care provider who assists a patient in terminating his or her life.  If euthanasia becomes legal, then those doctors who choose to assist their dying patients in ending their lives would be largely immune from liability, absent misdiagnosis.

            Third, for those doctors who are opposed to providing any such assistance to their dying patients, it is unlikely that the passage of a law legalizing euthanasia would require these doctors to assist a patient who wanted to commit suicide.  It is more probable that the treating physician could refuse to provide such assistance on moral or religious grounds, allowing the patient the option of seeking another physician who would be willing to assist the patient. 

            Fourth, the Washington state initiative points to the growing need of doctors, hospitals and their insurers to present all information and options to patients regarding their treatment and what they want to do in the event that their status becomes terminal.  Federally, the COBRA law has demonstrated that health care providers and their insurers must fully inform the patients of their options, if the health care provider is to avoid potential liability in the future.  In addition, Advance Directive laws point to the increasing need to ensure that incoming patients be informed and clarify their intent regarding the difficult issues that arise when the patient becomes terminal or incompetent.

            Health care providers and their insurers should be aware that failure to inform the patient of the living will and euthanasia option, could potentially lead to liability to the doctor and hospital involved.  Unlike COBRA and Advance Directive laws, the Washington state initiative is unclear whether the patient should be informed of this option prior to the diagnosis of the medically terminal condition. The vagueness of the initiative on this point could create a focal point of potential future liability for the health care provider who fails to inform the patient of this option before the patient becomes incapable of making a decision on this point.


Washington State to Vote on Legalization of Euthanasia

by Attorney Frank E. Reardon

October 1991

REARDON LAW OFFICE