Brooklyn Boro

Death with dignity suit on par with Brooklyn pol’s legislative agenda

February 6, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Diane Savino, Eagle file photo by Paula Katinas
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A group of terminally ill patients and their doctors filed suit against New York Attorney General Eric Schneiderman and five county district attorneys over a law they argue is unclear as to one’s choice to die with dignity and a physician’s ability to provide assistance without fear of criminal prosecution.

Bronx resident Eric Seiff, named plaintiff in the suit, was diagnosed with cancer, and at 81, the former attorney “wants to be sure that if the cancer progresses to a terminal stage, and [he] finds himself in a dying process he determines to be unbearable, he has available to him the option of aid-in-dying,” according to court documents. 

The question of an individual’s right to die with dignity or have a choice in the manner of their death is one addressed by New York state Sen. Diane Savino (D-Brooklyn). Last month, Savino announced an interest in amending the state’s law as it relates to aid-in-dying, colloquially known as physician-assisted suicide.

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The right to die on one’s own terms is a fundamental right, Savino noted in an interview with the Eagle Thursday.

“It’s the basic right to life, liberty and the pursuit of happiness,” the state senator said, pointing to the unalienable rights outlined in the Declaration of Independence. “The government cannot give you life, and liberty depends on your behavior, but how do you protect the pursuit of happiness? By letting people decide for themselves when they’ve had enough of suffering from a terminal illness.”

New York’s statutory provisions allow for patients to make certain end-of-life decisions, and with the passage of the Family Health Care Decisions Act in 2010 (codified in New York’s Public Health Law), patients have a “broad right to consent or decline treatment — even life-sustaining treatment,” a New York State Bar Association primer on the law explained.

For example, patients who are terminally ill and mentally competent can decline life-sustaining measures such as feeding tubes and breathing ventilators and, according to the New York Law Journal, may also ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst. 

But New York’s Penal Law makes it a crime for doctors or physicians to assist or promote a suicide attempt by “intentionally caus[ing] or aid[ing] another person to attempt suicide.”

The dueling statutes, Seiff and the parties in the suit allege, make it unclear whether or not New York grants a terminally ill individual the right to end his life on his own terms with physician-prescribed medication and whether or not a physician is criminally liable for providing such life-ending drugs.

While the suit does point to specific instances of a doctor being prosecuted in New York for violating the criminal statute against assisted suicide, the plaintiffs’ attorneys assert that it hopes to bring forth a clearer reading of the statute and a hopeful declaration of the right to end one’s life with dignity.

Seiff’s suit looks to carve out an exception or statutory clarification for physicians who aid mentally competent terminally ill patients as they make medical decisions concerning their life and the manner of their death. 

“We don’t think that the criminal statute should apply,” said Edwin G. Schallert, an attorney with the Manhattan firm Debevoise & Plimpton LLP and undersigned counsel in the suit. “Criminal statutes should be construed narrowly, and a better reading is that is the law should not apply here to doctors treating the terminally ill.”

If the criminal statute is applied to doctors who treat patients such as Seiff, who has bladder cancer, Schallert and the suit note, it would have a “chilling effect” in how physicians approach and talk to their patients about end-of-life decisions.

In particular, the suit hopes to clarify how New York’s public health law allowing a criteria for patients who decline lifesaving or sustaining measures coincides with New York’s criminal law that opens doctors to prosecution if they aid another person in an attempt at suicide.

“The plaintiffs seek a declaration that a physician who provides aid-in-dying to a mentally competent, terminally ill patient who has requested such aid is not criminally liable under New York’s Assisted Suicide Statute and injunctive relief prohibiting defendants from prosecuting physicians who aid [such patients],” the suit states.

The crux of the issue likely rests in the definition of suicide as assisting in a suicide is the specific act outlined in the criminal statute. As noted in the suit, “New York courts have not had occasion prior to now to construe the meaning of the word `suicide’ as used in New York’s Assisted Suicide Statute as applied to [terminally ill and mentally competent patients and their physicians] there is substantial uncertainty over the legal rights and responsibilities…”

 “Death with dignity is not suicide,” said Savino. “Suicide is for people who are desperate; death with dignity is for people who have come to terms with their terminal illness, have come to terms with their finality and want to have a say in how they die.” 

“Suicide precipitates a premature death of a life of otherwise indefinite duration, often motivated by treatable depression,” Seiff’s suit explains, while “[a]id-in-dying, in stark contrast, allows mentally competent, terminally ill patients who face impending death due to the progression of terminal illness, to make a rational, informed, autonomous choice.”

While the current suit hopes for legal clarification, it also contends that if the aid-in-dying is considered assisted suicide for the purpose of a physician’s criminal liability, such action would be against the New York state constitution’s guarantee of equal protection under the law and has no “rational relationship” to “any legitimate state interest.” 

Savino, however, hopes to bypass with a look at clarification and has proposed legislation that would establish a law protecting — or establishing — a right to die.

Speaking with the Observer last month, Savino expressed a desire to “amend the public health law in New York state to allow patients to make end-of-life decisions that make sense for them, and two, to inoculate doctors who choose to do this from prosecution.”

The current laws allow patients to make decisions about what do if they are unable to make decisions for themselves do to an accident or medical emergency, Savino told the Eagle.  But under Savino’s proposed measure, the decision about how to end life would be different from medical emergency decisions. “We are talking about patients who have a terminal illness, who are mentally competent, who have been told they have six months to live and are left with no other treatments,” the senator said.

The Savino proposal, which is joined by state Sen. Brad Hoylman (D-Manhattan), would require the patient be diagnosed with a terminal illness along with a prognosis of less than six months to live and a required second physician opinion as to prognosis and illness.  

Savino also noted that the law would apply only to those who are mentally competent or have mental capacity and not the disabled, children or patients with only moments of lucidity. 

For many patient parties to the suit, including Seiff, the decision whether or not to end their lives has not yet been made.

“Knowing they have the option is of great comfort,” Schallert said.

“These patients want some control over an uncontrollable situation,” added Savino.

Schneiderman’s office declined to comment.

“The A.G. has not taken any position on this,” Schallert informed the Eagle. “But we are hopeful he will read this and want to engage on this matter.” 

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