Advantages of the Premature-Death Approach to the Right-to-Die
Clarifies
and Simplifies the Legal Status
of Bedside Medical Decisions
When there is no law prohibiting causing premature
death,
the closest applicable laws would be those prohibiting murder.
What sense does it make for a prosecutor who tries cases of murder
to attempt to evaluate complicated medical decisions at the bedside?
The doctors might know that no doctor has ever
been found guilty
of committing murder because of increasing pain-medication,
withdrawing medical treatments, or ordering
terminal coma,
but at least theoretically
charges of murder could be brought
because that is the closest provision of law
that might apply to a doctor helping a patient to die.
Was it premeditated murder
because the doctor (and others)
planned and caused the death of the patient?
Under the laws against murder,
the only question is whether
the doctor caused the patient to die.
This is what sent Dr. Jack Kevorkian to jail for 8 years:
After he helped Thomas Youk to die by giving him a lethal injection,
Dr. Kevorkian was tried and
convicted of murder in the second degree.
If Michigan had had a law against causing premature
death,
then the question would not be did the doctor cause the patient's
death
but was this an appropriate
time for this patient to die?
With a law against causing premature death,
the question becomes more appropriate for the bedside:
Was this death premature
or at the best time for this
patient?
The law would specify medical facts and family agreement
that could be presented to show that the chosen means of death
was appropriate for this
specific patient at this particular time.
There might be more than 20 different kinds of evidence
that could be presented to prove that the death was timely---not premature.
HOW MANY DAYS DID THE PATIENT HAVE
LEFT?
When operating under a law against causing premature
death,
the expected life-span of
the patient is paramount.
When trying a medical professional or a layperson for murder,
it is sometimes relevant to ask:
Was the 'victim' alive
at the time of the act?
And some cases of aid-in-dying have been settled
precisely be showing that the patient might have been dead
when the final act by the doctor was taken.
In considering a possible case of causing premature
death,
the prosecution will present witnesses who will testify
that the
patient had a meaningful number of days of life
still open.
And the defense will be permitted to present evidence
that the patient would have been dead within a few days
no matter what actions were taken or omitted.
So even if the death was proven to be premature by a
few days,
the punishment should not
last longer than
the number of days possibly
lost by the patient.
The jury might decide just how many days the patient
lost.
And if it was only a few days—perhaps
with a very low quality of
'life'—
the jury will not
find the doctor guilty of any 'violation'.
And the judge will not
send the doctor to jail for even one day.
THE DOCTOR'S MEDICAL RECORDS
AND
THE DEATH-PLANNING RECORDS
WILL BE THE EVIDENCE FOR THE DEFENSE
Every system of advanced medical care keeps
elaborate records.
For any one patient, there might be thousands of pages
of medical observations, tests, orders, & results.
One of the main reasons for keeping such detailed records
is to protect the doctor
from a suit for malpractice.
Perhaps this doctor will never be subject
to such a suit during his or her medical career.
But there are thousands of pages of evidence
that will tend to show that
the doctor did not make
any medical
mistakes or errors of professional judgment.
Under a law against causing premature death,
all medical records would be potentially relevant.
The judge would not be
permitted to exclude any medical facts,
since such efforts to cure the patient would be prime evidence
that the doctor did, in fact, try to save the patient from death.
In addition to the normal medical records,
those who were planning a chosen death
will also create death-planning
records.
These records would consist mostly of documents showing
that the safeguards for life-ending decisions have been
fulfilled.
And the existence of these fulfilled
safeguards
would discourage the prosecutor from bringing charges,
since there would be no
chance of proving a premature death.
In other words, in addition to normal medical
records,
when a chosen death is being
planned for the patient,
all concerned will do their best to create good proofs
that the decisions leading to the death of the patient
were wise,
moral, & legal.
The larger the record of fulfilled safeguards,
the stronger the case for the defense will be:
This was not a premature death
because these 2 dozen other
people also endorsed the plan for death.
Just as all doctors now know exactly how their
medical records
will protect them if they are ever sued for malpractice,
the new law against causing premature death
will define exactly what
kinds of records a doctor might need
to defend against any possible charge of causing a premature death.
Judges will not be permitted
to exclude any evidence
that is specifically defined as a possible defense
in the law against causing premature death.
Even if the law against causing premature death
does not include all of the 26
recommended
safeguards,
those who want to prove that this death was a wise end-of-life decision
can select the most relevant and powerful of the safeguards
to make their case before any judge and/or jury.
Having specific safeguards that can be fulfilled in
obvious ways
clarifies the otherwise ambiguous legal situation at the bedside:
Those who are cooperating in this chosen death
can protect themselves from
any criminal charges
by fulfilling defined
safeguards that were put into the law
specifically for separating
premature deaths from timely deaths.
Under the new law against causing premature death,
the question before any legal authority will be:
Was this death premature?
This question can be answered
by looking at all of the facts and opinions that led to the death.
Did
the patient
clearly request death?
Did
an
independent doctor agree with the diagnosis and prognosis?
Did
family
members agree with the plans for death?
All such considerations were relevant for making end-of-life
decisions.
Subtle judgments were made about quality of life.
Differences of opinion were considered.
This would be a much better law for trying a
doctor (or anyone else)
than a simple law prohibiting murder.
Under conventional homicide statutes, the only question is usually:
Did the defendant cause the
victim's death?
Under a law drafted specifically for reviewing
medical decisions at the bedside, the question will be:
Was this the best time for
this patient to die?
And just as most regular medical records
will never be needed for a malpractice suit,
so most of the death-planning records will not be needed
for any criminal trial alleging that the doctor caused a premature
death.
But the very process of fulfilling safeguards and creating records
will help to make certain that the life-ending decision
was the best possible choice under the given circumstances.
And some safeguards will suggest postponing death.
Because the safeguards are defined in the law,
the doctors and family at the bedside
will know just what they
must do to remain on the right side of the law.
Under generic laws against
murder,
no clues are given about how
to behave to avoid being changed.
A good process of planning will lead to death at the
best time.
For example, a review
by a medical
ethics
committee
can help the deciders avoid a premature death.
Secrecy and deception can end
because life-ending decisions can then be taken
under open, public safeguards known and understood by all.
The recommended safeguards for life-ending decisions
focus on the results
or outcome rather
than paperwork and procedure.
The safeguards help the deciders reach reasonable end-of-life
decisions.
"Was this death a wise choice?"
is a more meaningful question than:
"Did the doctor complete the paperwork correctly?"
Created
March 9, 2012; Revised 3-15-2012; 3-17-2012; 3-30-2012; 7-20-2012;
9-7-2012;
4-7-2013; 6-19-2013; 6-20-2014; 3-18-2015; 7-16-2015; 8-10-2016;
2-22-2018; 12-2-2020;