Abstract

http://ssrn.com/abstract=1699007
 


 



Montana Becomes Third U.S. State to Allow Physician Aid in Dying


Kristine S. Knaplund


Pepperdine University School of Law

2010

American Bar Association Section of Real Property, Trust, and Estate Law eReport, Forthcoming
Pepperdine University Legal Studies Research Paper No. 2010/17

Abstract:     
In this report, Professor Knaplund discusses the Montana Supreme Court case of Baxter v. State of Montana (2009 MT 449), which ruled on the issue of a doctor's liability in a physician aid in dying (PAD) situation. In this case, the plaintiff was suffering from mutual symptoms related to his terminal lymphocytic leukemia and the chemotheraphy treatments he was receiving for it. Along with several other named plaintiffs, including board-certified physicians and the group Compassion and Choice, Mr. Baxter sued to have the state's homicide statute declared to of the constitutional rights of those who are dying to seek a physician's aid in achieving death.

The Montana Supreme Court's ruling on this case was based on statutory, rather than constitutional grounds. Specifically, the court ruled that the consent of the patient to seek a physician's aid in dying does not violate public policy, and therefore could constitute a valid statutory defense to a homicide charge. The court examined PAD in light of Montana's Terminally Ill Act, holding that PAD, through the prescribing of a lethal dose of medication, does not violate the act's prohibition on euthanasia or mercy killing. This is because the statute itself preserves patients' rights to have their end-of-life wishes followed. The court emphasized in its holding a PAD defense is only valid for a Montana doctor who prescribes, but does not administer, a lethal dose of medication to a competent, terminally-ill person.

After providing an explanation of the Baxter case, Professor Knaplund raises potential issues related to PAD statutes in nearby states, especially in situations when the lethal dose of medication is prescribed, filled, and ingested in different jurisdictions. She specifically discusses the Oregon Death With Dignity Act, as well as a related statute in Washington state. She also speculates as to possible refinements of the Montana statute, in accordance with the ruling in Baxter, that could be introduced by the Montana legislature to help further clarify the legal status of PAD, not only in Montana, but also in other states in which similar acts are permitted by law.

Number of Pages in PDF File: 10

Keywords: Montana, Oregon, Washington, Physician Aid in Dying, Medical, Physician, Doctor, Terminal, Cancer, Illness, ALS, Patient, Death, Dying, Illness, Disease, Euthanasia, Chemotherapy, Drug, Medication, Death with Dignity Act, Mercy Killing, Elderly, Competent, Administer, Prescribe, Law, Legal

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Date posted: October 28, 2010  

Suggested Citation

Knaplund, Kristine S., Montana Becomes Third U.S. State to Allow Physician Aid in Dying (2010). American Bar Association Section of Real Property, Trust, and Estate Law eReport, Forthcoming; Pepperdine University Legal Studies Research Paper No. 2010/17. Available at SSRN: http://ssrn.com/abstract=1699007

Contact Information

Kristine S. Knaplund (Contact Author)
Pepperdine University School of Law ( email )
24255 Pacific Coast Highway
Malibu, CA 90263
United States
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