Two of the state’s top law enforcement officials are calling on a judge to dismiss a right-to-die lawsuit filed against them by a Falmouth cancer patient, arguing the case is premature and involves a highly controversial issue that should be decided by the legislature.
Still, Attorney General Maura Healey and Cape & Islands District Attorney Michael O’Keefe, in legal briefs, went out of their way to express sympathy for Dr. Roger Kligler, a retired physician with metastatic prostate cancer, and other very sick patients who want the option of obtaining lethal drugs to hasten their death if their condition precipitously — and painfully — declines.
“There is no dispute that Dr. Kligler and those who suffer similarly are deserving of the utmost compassion, and their arguments . . . deserve close and serious consideration in various public fora, including the Legislature,” Healey wrote.
O’Keefe told the Globe last week that he is “very sympathetic” to patients like Kligler, but that the doctor is making his petition “to the wrong branch of government.”
In October, Kligler, 64, filed his lawsuit in Suffolk Superior Court with the help of a national nonprofit group, Compassion & Choices, raising a contentious issue — called “physician-assisted suicide” by some — that was hotly debated and narrowly defeated during a 2012 Massachusetts ballot initiative. Kligler is now attempting to get this option for terminally ill patients approved through the judicial process, bypassing the political arena where a “compassionate aid in dying” bill has languished for the past eight years.
Even though Kligler has yet to be declared terminally ill, generally defined as having six months or less to live, his lawyers want a judge to prohibit prosecutors from bringing action against any doctor who might help Kligler die in the future. Under some circumstances, individuals can seek legal clarification of issues in the courts, and Kligler seeks to have a judge declare that no Massachusetts law explicitly forbids “medical aid in dying” or that Kligler has a state constitutional right to die in this way.
Joining Kligler as a plaintiff in the case is Dr. Alan Steinbach, also from Cape Cod, who said he is willing to prescribe such drugs to Kligler or others who, if proven mentally sound, want to speed up their death due to their terminally ill state.
But Healey and O’Keefe, in court papers issued in the past two weeks, said a judge should not intervene because neither of them have yet initiated a prosecution against Kligler and that many aspects of any future case have yet to unfold. Healey said there is no need for any court order to bar them from action because there is not yet “any actual controversy between the parties.”
Both urged that supporters of this end-of-life option seek remedies through the Legislature. A spokesman for Healey explicitly said she is open to being part of discussions with medical providers, disability advocates, religious leaders, and lawmakers to revisit this sensitive issue, which is gaining attention nationwide. Currently, terminally ill patients in six states have legal protections to pursue this end-of-life option.
Kligler, however, has maintained that he cannot wait for the sluggish legislative process to address what could, at some point, be a personal medical crisis. Representative Louis Kafka, a Democrat from Stoughton, has over the past eight years repeatedly filed a bill that would allow doctors to hasten a patient’s death under some extreme circumstances, though it has never emerged out of committee for a full vote.
Kafka told the Globe last week, however, that he sees signs of progress on the bill, which he plans to re-file this year. He said the proposed law, which initially had only a dozen co-sponsors, now has nearly 40.
Kafka also said the decision by the Massachusetts Medical Society last month to poll its members about “medical aid in dying” is also a sign that this powerful physicians’ lobbying group may be reconsidering its historic opposition, a move that might help pave the way for legislative action.
“That would be a huge plus in trying to push this bill forward,” he said.
Kafka said he is sympathetic to Kligler’s cause, and doesn’t think physicians who prescribe fatal drugs to terminally ill patients should be prosecuted. But he declined to comment on his lawsuit, and said that, for now, he is focusing on “passing a bill.”
Meanwhile, attorneys for Kligler await a court hearing on the issue, which is likely to be within a month, and maintain that the Massachusetts courts have a say on this important patients’ rights issue.
“We simply are asking the court to clarify that existing state law does not prohibit medical aid in dying and the Massachusetts constitution protects a terminally ill, competent adult patient’s right to make end-of-life medical decisions to avoid needless suffering,” said attorney John Kappos.Patricia Wen can be reached at email@example.com. Follow her on Twitter @GlobePatty.