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Author Archive: Thaddeus Mason Pope, JD, PhD

About Thaddeus Mason Pope, JD, PhD

06/17/2018

Jayden Auyeung "Dies" During Court Conflict over Brain Death with Children’s Hospital of Philadelphia

In May 2018, the parents of 10-year-old Jayden Auyeung obtained a temporary restraining order in Philadelphia Common Pleas Court, after Children's Hospital of Philadelphia declared him brain dead and planned to remove organ-sustaining treatment. That b...

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06/15/2018

California Appeals Court Suspends Lower Court Ruling, Reinstates End of Life Option Act


A California appeals court today granted emergency motions by the two terminally ill adults and a physician represented by Compassion & Choices for an “automatic stay” to immediately suspend a lower court’s judgment invalidating the End of Life Option Act. The appeals court also granted a motion by Attorney General Xavier Becerra for a “discretionary stay” of the lower court ruling. The rulings reinstate the law, effective immediately.


Similar to laws in Washington, D.C. and six states, the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep.


On May 15, Riverside County Superior Court Judge Ottolia granted the plaintiffs’ motion in the lawsuit to invalidate the End of Life Option Act by Life Legal Defense Foundation, American Academy of Medical Ethics and several physicians. On May 24, he issued a judgment that was required to actually invalidate the law. Judge Ottolia ruled the legislature violated the state constitution by passing the law during a special session Gov. Brown proclaimed was limited to health care, despite the fact that Gov. Brown signed the bill into law.


The 4th District Circuit of Appeal granted Compassion & Choices motion for an “immediate stay” order that reinstates the law pending further review (see ruling at: bit.ly/CaLawStay). The appeals court order concluded:


“The request for an immediate stay is GRANTED. The trial court's order of May 21, 2018, and judgment of May 24, 2018, are hereby STAYED pending determination of the [appeal].”


“This stay is a huge win for many terminally ill Californians with six months or less to live because it could take years for the courts to resolve this case,” said Kevin Díaz, national director of legal advocacy for Compassion & Choices, whose sister organization, Compassion & Choices Action Network, led the campaign to pass the End of Life Option Act. “Thankfully, this ruling settles the issue for the time being, but we know we have a long fight ahead before we prevail.”


“The appeals court made the legally correct decision by reinstating the status quo of the law being in effect, before the lower court ruling, until the courts resolve this case,” said John Kappos, a partner in the O’Melveny law firm working with Compassion & Choices, which has filed several motions in the case. “Ultimately, we are confident the courts will rule the law is constitutional and valid.”


“This ruling is a key first step towards righting the wrong,” said Jon B. Eisenberg, Esq, of Healdsburg (Sonoma County), an expert in appellate law working with Compassion & Choices legal team. “It is great news for terminally ill Californians who have been in legal limbo for the last few weeks, a limbo that could have lasted much longer without the stay because this case could last months or years, and they would have not access to the law in the meantime.”


Last June, Compassion & Choices released a report estimating that 504 Californians have received prescriptions for medical aid in dying since it took effect on June 9, 2016. Last July, the California Department of Public Health released a report showing 191 terminally ill Californians received prescriptions from 173 doctors for aid-in-dying medication during the nearly seven month period from June 9, 2016 until Dec. 31, 2016; 111 of those individuals (58%) decided to self-ingest the medication.

Polling shows 76 percent of Californians across the political and demographic spectrum support medical aid in dying. This majority support includes 82 percent of Democrats, 79 percent of independents, 67 percent of Republicans, 75 percent of whites, Latinos and Asian Americans, and 52 percent of African Americans.


California is one of seven states — including Colorado, Montana, Oregon, Vermont, Washington, and Hawai‘i — as well as the District of Columbia, that have authorized medical aid in dying. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.


Case Background:

On June 8, 2016  the day before the End of Life Option Act took effect on June 9, 2016  Life Legal Defense Foundation, American Academy of Medical Ethics and several physicians filed a lawsuit against the California attorney general and Riverside County district attorney in Riverside Superior Court seeking to invalidate the law. The lawsuit, Ahn vs. Hestrin — Case RIC1607135claims the law violates the due process and equal protection guarantees of the U.S. and California constitutions because it fails “to make rational distinctions” between terminally ill adults “and the vast majority of Californians not covered by the Act.” The suit also claims the legislature did not have the state constitutional authority to pass the health care law during a special session limited to health care.


On July 19, 2016, Compassion & Choices filed a friend-of-the-court brief opposing a motion by the plaintiffs for a preliminary injunction to suspend the End of Life Options Act.

On Aug. 26, 2016, Riverside County Superior Court Judge Daniel A. Ottolia rejected the preliminary injunction motion to suspend the law, but he allowed the suit to move forward.


On June 16, 2017, Judge Ottolia ruled that the lawsuit would proceed to trial to determine the merits of the case, but the End of Life Option Act remained in effect.


On May 15, 2018, Judge Ottolia granted the plaintiffs’ motion in the case to invalidate the law because he claimed the legislature violated the state constitution by passing it during a special session limited to health care issues. He gave Attorney General Xavier Becerra five days to appeal the ruling, and the attorney general did so on May 21.


On May 23, 2018, the 4th District Circuit of Appeal denied a separate motion by the attorney general for a stay to suspend the ruling, but ordered the plaintiffs to show cause why the appeals court should not overturn the ruling in 25 days. Despite the appeals court’s denial of the stay, Judge Ottolia’s original ruling didn’t invalidate the law because he had not yet issued a judgment giving effect to his decision reflected in his order on May 24.


On May 30, 2018, Judge Ottolia rejected a motion filed by Compassion & Choices on behalf of a physician and two terminally ill adults urging the judge to “vacate” (i.e., cancel) his judgment on May 24 invalidating the End of Life Option Act. However, he scheduled a hearing on June 29 to consider a separate motion by California Attorney General Xavier Becerra to vacate the judgment.


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06/14/2018

End-of-Life Group Urges Congress to Reject Legislation to Repeal D.C. Death with Dignity Act


Compassion & Choices urged Congress to reject a policy rider attached to a government funding bill approved by the House Appropriations Committee late Wednesday night that would repeal the D.C. Death with Dignity Act. 

The policy rider is part of the Financial Services and General Government Appropriations bill for fiscal year 2019 that starts on Oct. 1, 2018.

Similar to laws in seven states, the D.C. Death with Dignity Act gives mentally capable, terminally ill adults with six months or less to live the option to get prescription medication they can take to end unbearable suffering and die peacefully in their sleep. 


Congressional opponents of medical aid in dying tried to repeal the law in February 2017 during a 30-legislative-day review period and during last year’s appropriations process, but they failed both times.


“Opponents of medical aid in dying should give up imposing their values on D.C. residents and focus on the issues impacting their constituents,” said Kim Callinan, CEO for Compassion & Choices, which led the campaign to pass the D.C. Death with Dignity Act. “Despite their efforts, the D.C. law remains in effect, and we are working closely with the D.C. Department of Health to make it easier for terminally ill patients to access the law.”


In addition to Washington, D.C., medical aid in dying has been authorized in seven states: Colorado, Hawai‘i, Montana, Oregon, Vermont, Washington, and California. However, the California law currently is facing a legal challenge based on a technicality. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.


“Members of Congress from the seven states with medical aid-in-dying laws would be hypocrites if they supported this policy rider when their constituents have this end-of-life care option to peacefully end unbearable suffering,” said Callinan. “We cannot allow this federal power grab to succeed or it will spur efforts to try to ban medical aid-in-dying laws nationwide.”


The D.C. Council approved the Death with Dignity Act on Nov. 15, 2016, by a veto-proof 11–2 margin and the law went into effect on February 18, 2017Polling shows two-thirds of D.C. residents (67%) support medical aid in dying. 


Medscape online survey shows 7,500 doctors nationwide from 25 medical specialties nationwide support medical aid in dying by nearly a 2–1 margin (57% to 29%).


National and state polls show a majority of Americans across the ethnic, political and religious spectrum support medical aid in dying. This majority includes African Americans, Asian Americans, Latinos, conservatives, Democrats/Democratic-leaning independents, liberals, moderates, Republicans/Republican-leaning independents, Catholics, Christians, Protestants, people of other faiths, and people living with disabilities.




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06/13/2018

Aid-in-Dying is Health Care

Kathryn L. Tucker, the Executive Director of the End of Life Liberty Project, has a new piece in JURIST discussing the ongoing legal challenge to the California End of Life Options Act.

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06/12/2018

End of Life Care Strategic Plan for New Jersey

The New Jersey Health Care Quality Institute has released the "End of Life Care Strategic Plan for New Jersey." From the executive summary:

"New Jersey performs poorly on end-of-life care compared with almost every other state in the nation. The statistics translate into real people treated with unnecessary and unwanted medical care at the end of their lives. Too many people who want to die at home instead die in Intensive Care Units (ICUs). Too few benefit from hospice care — or benefit too late. . . . Our plan focuses on four key areas:"

Technology. We need a financially sustainable statewide electronic Practitioner Orders for Life Sustaining Treatment (POLST) registry so physicians and advanced practice nurses, in consultation with patients and caregivers, can document their end-of-life care wishes in a state recognized POLST form that is accessible to emergency and medical staff no matter where the person may be. We should connect Advance Directives and POLST forms to Electronic Health Records (EHR) systems, incorporate electronic reminders into the EHR to prompt providers to conduct advance care consultations with identified patients, and achieve wide-spread use of technology to identify those patients in greatest need of an end-of-life care plan. These steps are all achievable in the near term.

Payment. We must increase reimbursement and expand how we reimburse for valuable end-of-life consultations to promote greater use of this service. This should be done in our state Medicaid program and State Health Benefit Program. In addition, we must rethink reimbursement policies and rates for palliative care. Moreover, alternative payment models should reward providers that perform well on end-of-life care quality measures.

Education. Physicians and nurses in practice as well as those in medical and nursing school need education and coaching on how to have these difficult discussions with their patients and their caregivers. The medical and nursing schools in the state should develop a common curriculum to be implemented in their programs. Health systems and professional societies should provide and scale both web-based and in-person training, including simulation labs where providers can practice their skills with trained actors. Evidence based programs that address all of these education needs exist and can be implemented in short order.

Culture. The issue goes beyond the world of medicine. We need to change the culture around end-of-life care discussions. This includes an awareness campaign to educate our residents about care options at the end-of-life, including how to discuss care preferences with their providers and caregivers, and how to document decisions so that they will be followed. This work involves community leaders, clergy, social workers, public health departments, senior centers and libraries, and county surrogates. This work must be culturally sensitive and shared in multiple languages. 

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06/11/2018

AMA Rejects Recommendation to Reaffirm Opposition to Medical Aid in Dying


The American Medical Association (AMA) House of Delegates today voted 53 to 47 percent to reject a report by its Council on Ethical and Judicial Affairs (CEJA) that recommended the AMA maintain its Code of Medical Ethics’ opposition to medical aid in dying. Instead, the House of Delegates referred the report back to CEJA for further work.


The AMA Code of Medical Ethics Opinion 5.7 adopted 25 years ago in 1993 before medical aid in dying was authorized anywhere in the United States says: “...permitting physicians to engage in assisted suicide would ultimately cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer...”


In contrast, the CEJA report implicitly acknowledges that medical aid-in-laws improve end-of-life care, by spurring conversations between physicians and terminally ill patients about all end-of-life care options, such as hospice and palliative care:


“Patient requests for [medical aid in dying] invite physicians to have the kind of difficult conversations that are too often avoided. They open opportunities to explore the patient’s goals and concerns, to learn what about the situation the individual finds intolerable and to respond creatively to the patient’s needs...” said the report. “Medicine as a profession must ensure that physicians are skillful in engaging in these difficult conversations and knowledgeable about the options available to terminally ill patients.” (See lines 38-45).


The CEJA report also acknowledges: “Where one physician understands providing the means to hasten death to be an abrogation of the physician’s fundamental role as healer that forecloses any possibility of offering care that respects dignity…. another in equally good faith understands supporting a patient’s request for aid in hastening a foreseen death to be an expression of care and compassion.” (See lines 10–14).


The majority of AMA delegates felt that the AMA Code of Medical Ethics should be modified to better reflect the sentiment of the report. 


“We feel that the AMA abandons all of the physicians who, through their conscious beliefs, are allowed to support patients who are in the states where it is legal and feel that that does need to be addressed regardless of how we feel,” said neurologist Lynn Parry, an AMA delegate from Colorado, just before the vote. “We don’t care how long it takes you.”


“Clearly, the AMA’s position is evolving as delegates hear from more and more colleagues who practice medical aid in dying or believe the option should be available to their patients,” said Dr. Roger Kligler, an AMA member and retired internist in Falmouth, Mass., living with stage 4 metastatic prostate cancer who supports medical aid in dying.


Medical aid in dying has been authorized in Washington, D.C. and seven states — Colorado, Hawai‘i, Montana, Oregon, Vermont, Washington, and California — although the California law currently is under legal challenge based on a technicality. Collectively, these eight jurisdictions represent nearly one out of five Americans (19%) and have 40 years of combined experience safely using this end-of-life care option.


“Many of the AMA’s constituent societies favor neutrality in order to respect and protect doctors and patients whether they decide to participate in this medical practice or not,” said Dr. David Grube, who wrote 30 prescriptions for medical aid in dying in Oregon between 1998 and 2012 and currently is the national medical director for Compassion & Choices. “I’m heartened that the AMA House of Delegates is open to continuing to study and learn about this issue when there is no clear consensus among AMA members.”


Numerous professional associations have dropped their opposition to medical aid in dying and adopted a neutral position. They include: the American Academy of Hospice and Palliative Medicine, Washington Academy of Family PhysiciansAmerican Pharmacists AssociationOncology Nursing AssociationCalifornia Medical Association, California Hospice and Palliative Care AssociationColorado Medical SocietyMaine Medical AssociationMaryland State Medical SocietyMassachusetts Medical SocietyMedical Society of the District of ColumbiaMinnesota Medical AssociationMissouri Hospice & Palliative Care AssociationNevada State Medical AssociationOregon Medical AssociationVermont Medical SocietyHospice and Palliative Care Council of Vermont, Washington Academy of Family Physicians, and Washington State Psychological Association.



According to a 2016 Medscape online survey, more than 7,500 doctors from more than 25 specialties agreed by nearly a 2-1 margin (57% vs. 29%) that “physician-assisted dying [should] be allowed for terminally ill patients.”


In fact, Oregon’s medical aid-in-dying law has helped spur the state to lead the nation in hospice enrollment, according to the report published in the New England Journal of MedicineMore than 40 percent of terminally ill patients in Oregon were enrolled in home hospice in 2013, compared with less than 20 percent in the rest of the United States. Nearly two-thirds of Oregonians who died in 2013 did so at home, compared to less than 40 percent of people elsewhere in the nation. Research shows over 85 percent of Americans say they want to die at home.


According to a May Gallup poll, 72 percent of U.S. adults agreed that “When a person has a disease that cannot be cured…doctors should be allowed by law to end the patient's life by some painless means if the patient and his or her family request it.”


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06/10/2018

Voluntarily Stopping Eating and Drinking: A Practical Approach for Long-Term Care Facilities

David Gruenwald has just published "Voluntarily Stopping Eating and Drinking: A Practical Approach for Long-Term Care Facilities" in the Journal of Palliative Medicine. "Some residents of long-term care (LTC) facilities with lethal or serious chr...

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06/09/2018

Examination of State Level Personality Variation and Physician Aid in Dying Legislation

This new article by Rush University Medical Center researchers in the Journal of Pain & Symptom Management concludes that "The social dialogue and potential controversy surrounding physician aid in dying may be linked to aggregate differences in st...

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06/08/2018

The 50-Year Legacy of the Harvard Report on Brain Death

I am delighted to have participated in this new Viewpoint in JAMA: "The 50-Year Legacy of the Harvard Report on Brain Death." I have a fuller legal analysis forthcoming in the Hastings Center Report which will have a whole issue on ...

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06/07/2018

American Medical Association May Switch Position on Medical Aid in Dying

The American Medical Association House of Delegates meets this weekend. On the agenda is changing the official position AMA on medical aid in dying. While the CEJA recommendation is against the changing, CEJA concedes that there have been no abuses in...

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