When Medical Aid in Dying Is Legal, But Still Not Accessible

Q. I recently attended my 50th high school reunion and connected with several teammates with whom I played varsity basketball. I heard about a teammate who had terminal cancer who wanted to die on his own terms. Although death with dignity is legal in his state, he still had a rough time finding a doctor or a hospital who would let him exercise that right. After a battle with doctors and administrators in his weakened state, he was able to proceed.

I, too, am intrigued by the idea of dying on my own terms, should I be in a situation that would warrant it. Is such a thing legal in the DC area, and if so, how can I avoid the pushback my friend experienced? Also, how can I plan so my loved ones know my wishes?

Thanks for your help!

A. An increasing number of U.S. states have legalized medical aid-in-dying laws, and others, including Virginia and Maryland, are well on their way. In 10 jurisdictions, including Washington, DC, doctors are legally allowed to prescribe medicine that will result in death to terminally ill patients who request the assistance. But, even in these states, exercising the option has its challenges.

Even in the states that have passed laws to allow medical aid in dying, many hospitals, most pharmacies, and some doctors are not on board, which can cause issues for patients, similar to your teammate, who want to exercise their legal right to physician-assisted suicide but can be faced with obstacles.

Overcoming Obstacles to Exercising Medical Aid-in-Dying Rights

We live in a country where many large hospital systems have deep religious ties. There is also a genuine discomfort among some physicians who are loath to use their skills to end lives rather than save them. These factors are causing challenges for the desperate patients wanting to exercise their legal right to die on their own terms in states where it’s legal to do so.

Let’s look at Neil Mahoney, a 65-year-old Colorado resident, as an example. Last summer, when he was diagnosed with stage 4 cancer, he was told that there is no cure and that without treatment, he could expect to live four more months, and he could live up to a year with chemotherapy. That day, he asked the oncologist about medical aid in dying as an option. He was among 65 percent of Colorado voters who supported the law in 2016, and now he expected to use it. He was disheartened when the doctor turned him down flat.

Another Doctor Is Willing to Assist Him; the Hospital Is Not

Mahoney didn’t give up. As a result of his cancer, the once-rugged outdoorsman was reduced to gaunt bones and a swollen belly. He struggled to move around despite the use of his cane. Mahoney eventually lost more than 50 pounds from his 185-pound frame. Mahoney was determined that he ― not the disease ― would decide when he died.

Mahoney’s primary care doctor had no qualms about assisting him in his desire to die with dignity on his own terms. Dr. Barbara Morris said that, in her view, medical aid in dying should be part of a continuum of care for dying patients. “We cannot know when a person has reached their limit of suffering,” she said. “Only that person knows.”

Mahoney ran into an obstacle with Centura Health Corp., the group that governed the Seven Day Adventist Hospital where he sought treatment for his cancer. They regarded the practice of medical aid in dying as “intrinsically evil.” Citing the hospital’s governing rules, the hospital barred its doctors from following the state law. In August, it fired his physician, Dr. Barbara Morris, for consulting with Mahoney with the aim of carrying out his wishes.

Terminally Ill Man Involved in Legal Fight to Secure His Rights

As his condition deteriorated over the summer, Mahoney and Morris filed a lawsuit against Centura Health Corporation, with Morris still unable to assist him. Morris also sued the hospital for wrongful dismissal; the case is pending. In December, Centura Health Corp. officials filed a countersuit alleging that the hospital’s actions are protected by the U.S. and state constitutions’ freedom of religion guarantees.

When Centura fired Morris for encouraging “a morally unacceptable option,” Mahoney lost both his doctor and the confidence that he would be able to end his life when the suffering became too great.

A Clinical Pharmacist Is Able to Assist Mahoney

While legal fights ensued, Mahoney thought his chances of ending his life on his own terms in a state where it is legal were diminished. That was until Rodney Diffendaffer, a clinical pharmacist in Longmont, Colorado, 45 miles away, read of his plight and reached out to assist Mahoney, as he has done with others in similar situations. In fact, in the past two years, Diffendaffer and his group, Dying with Dignity of the Rockies, have helped more than 50 terminally ill Coloradans obtain medications to end their lives.

At this point, with the help of Diffendaffer, Mahoney had access to lethal drugs under Colorado’s 2016 End of Life Options Act. On Nov. 5, surrounded by family, Mahoney took his prescribed end-of-life medication. He died within an hour.

As you can see, even with laws regarding medical aid in dying, you could still face difficulty if you choose to go this route. Similar to the situation with Mahoney, there are advocacy groups that can help. Death Positive DC is one in Washington, DC, and Compassion & Choices and Death with Dignity are nationwide. But even with these advocacy groups, it can be very difficult for people to find a doctor willing to prescribe the needed lethal medications. Our firm has also heard from several of our clients that almost no pharmacies in DC will prescribe the required life-ending drugs.

Status of Medical Aid in Dying Laws in Virginia and Maryland

Virginia and Maryland have no medical aid-in-dying laws as we speak, but the legislatures in both states are currently considering them.

Virginia Update

House Bill 1649, sponsored by Del. Kaye Kory, D-Falls Church, would allow “adults with terminal conditions that will result in death within six months to request from a health care provider a self-administered, controlled substance for the purpose of ending the patient’s life. Such a request would need to be made twice orally by the patient, along with a statement signed by the patient and a witness.” The Virginia Medical Aid in Dying Act, a death with dignity bill, has been heard in committee and, at the request of the bill sponsor, continued to the next session.

Maryland Update

For the fifth year in a row, Maryland lawmakers are proposing a bill that would legalize physician-assisted suicide in the state. The Maryland State Senate’s Judicial Proceedings Committee heard testimony for the Richard E. Israel and Roger “Pip” Moyer End-of-Life Option Act in a hearing on Feb. 28.

The act would allow adults mentally capable of making health care decisions with a prognosis of six months, to request aid-in-dying medication that would be self-ingested.

Last year, a similar bill passed in the Maryland House of Delegates before being shut down by the Maryland State Senate in a tie 23-23 vote.

Companion End-of-Life Option Act bills, HB0643 and SB0701, are currently under consideration in the Maryland General Assembly.

Plan Ahead to Tell Loved Ones What You Would Want

Whether or not you agree with medical aid-in-dying or would want to do it yourself should it become legal and should you be in a situation that warranted it, it is of utmost importance to plan ahead to make sure your end-of-life wishes are known to physicians and to your loved ones.

An Advance Medical Directive (including our proprietary Long-term Care Directive®, a vital part of our proprietary 4 Needs Advance Medical Directive® that I created for our Farr Law Firm clients) specifies what medical and long-term care related actions should (or should not) be undertaken if you’re too ill or incapacitated to make decisions. Please read more about this important document in my article, “Would You Choose Death on Your Own Terms if You Had a Terminal Illness? In 10 States, It’s Legal.

If you or a loved one has not done Incapacity Planning, Long-Term Care Planning, or Estate Planning (or had your Planning documents reviewed in the past several years), now is a good time to plan and get prepared. Call us to make an appointment for an initial consultation:

Elder Law Attorney Fairfax: 703-691-1888
Elder Law Attorney Fredericksburg: 540-479-1435
Elder Law Attorney Rockville: 301-519-8041
Elder Law Attorney DC: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.