Doctor can proceed with lawsuit seeking Mass. right to die, judge rules

Dr. William Cobb examined Dr. Roger Kliger during an appointment in February. Jessica Rinaldi/Globe Staff

A retired Falmouth doctor who has metastatic prostate cancer can continue pursuing a lawsuit seeking the right to obtain a lethal dose of medication from his doctor and choose when he dies, a Suffolk Superior Court judge ruled.

The judge refused to dismiss a case brought against the state by Dr. Roger M. Kligler, a longtime advocate of expanding end-of-life options laws nationwide, who asked a judge to affirm his right to die in this way and to prevent prosecution of doctors who assist. Dr. Alan Steinbach, a physician who wants the option to provide such medication to patients with terminal illnesses, is also a plaintiff, the Globe reported in October.

Judge Mary K. Ames said she was not ruling on the merits of their claim that doctors should not be prosecuted for manslaughter when they “prescribe lethal medication to be self-administered by competent terminally ill patients.”

In a ruling issued last week, she said she was simply ruling that “plaintiffs have satisfied their threshold burden to allege an actual controversy with respect to the validity of the law of manslaughter.”

Ames also noted arguments by the Cape and Islands district attorney and the state attorney general that the case should be dismissed because the question of physician-assisted suicide should be taken up by the Legislature.

“This ourt does not disagree that the Legislature is a superior forum for grappling with the issue of physician assisted suicide. However, allowing this case to proceed to a hearing on the merits will not foreclose legislative action on that subject,” the judge ruled.

“My wife Cathy and I are elated with this initial ruling in my favor,” Kligler said in a statement. “As a physician who has treated numerous terminally ill adults, I know medical aid in dying provides peace of mind for many dying patients. I do not know if I would use this option, but I want it for myself if my suffering becomes intolerable at the end of my life.”

A spokeswoman for Attorney General Maura Healey said her office was reviewing the decision and had no comment.

Cape and Islands District Attorney Michael O’Keefe said, “While I have great sympathy for the plaintiff this is the kind of policy change which should be made by the Legislature not by a court.”

“The fact that this preliminary motion was denied is not surprising as at this stage the court must accept as true all of the factual allegations of the plaintiff. This is not the standard at a trial,” O’Keefe said.

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Patricia Wen of the Globe staff contributed to this report.