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Lawyer Assisted Suicide: A Brief for the Bar

by Fred McGavran

Once confined to veterans’ hospitals and institutions for the criminally insane, physician assisted suicide (“PAS”) has entered the mainstream along with health maintenance organizations (“HMOs”), preferred provider organizations (“PPOs”), and other medical-legal acronyms. Dr. Kevorkian’s success inspired many commentators to propose far more elegant means of egress than that pathologist’s hot-wired IV on the floorboards of a rented station wagon. Conservative economists suggest free markets should prevail by opening the field to competition and offering consumers a variety of affordable and job creating options.

Unfortunately, the Supreme Court stifled such hopeful speculation. In a cogent exposition of PAS (twelve opinions from nine justices), a majority (or is it a plurality?) reaffirmed the authority of the states to prevent unauthorized escapes from life, much as the late Chief Justice Taney did to prevent unauthorized escapes from slavery. If Dred Scott could not gain his freedom by moving from a slave state to a free state, people dying today may not seek human assistance to move from their present tormented existence to another. Only a few states have taken up the challenge to allow PAS, creating a wave of PAS tourism for sufferers seeking a more caring demise than a bottle of aspirin or a revolver may offer.

As an attorney, I welcome legal controversy as a cleaning service welcomes a natural disaster. With the emphasis on PAS, however, the contribution of our profession has been marginalized, if not ignored. Lawyer assisted suicide (that’s “LAS”) is so seldom mentioned that I fear most readers will see it here for the first time. Surely we attorneys, who have driven more people to self-destruction than all the healers since Aesculapius, deserve some recognition. In Hamlet’s famous soliloquy, he names “the insolence of office,”, surely a respectful reference to the judiciary, and “the law’s delay” as stimulants to suicide. Goethe, the first modern lawyer to make his fortune as a novelist with The Sorrows of Young Werther, inspired generations of romantics to end their self-absorbed angst.

Even the uneducated litigant intuitively reaches this conclusion. Court dates, continuances, conferences, depositions, motions, hearings, expert witnesses, trials, appeals, arguments, verdicts, and reversals litter their calendars, alienate family and friends, obsess their thoughts, and consume their finances. Caught or lured into an inescapable maze, helpless as a rat in a psychology experiment, our subjects often find death preferable to exhaustion, madness, bankruptcy, and despair. As an attorney I must honor my clients’ wishes, as long as their fees are paid.

My first personal experience with LAS came almost by accident. Soon after entering into practice, an acquaintance called from a local hospital, where he was attending a great aunt in her last illness. If I prepared her new will naming him as sole beneficiary, I could serve as attorney for the estate. There was a need for haste, however; the poor dear was nearly gone, and another branch of the family had retained a prominent attorney to prepare a conflicting will naming them as beneficiaries.

Those were the glory days when attorneys’ fees were a percentage of the estate, rather than for services actually rendered. My secretary’s electric typewriter gave me the edge over my more conservative colleague’s manual. Racing to the hospital, I watched breathlessly as the soon-to-be executor obtained the testatrix’ signature with a delightful story about signing an order for Girl Scout Cookies. Executed will in my briefcase, I was tiptoeing out of the room when I tripped on the electric cord for Auntie’s respirator.

Embarrassed by my clumsiness, I was kneeling to replace the plug, when my friend caught my eye. Waving his fingers “no,” he communicated more powerfully than in words his desire to be alone with his aunt during her last moments. As I was leaving the elevator on the ground floor, I passed the rest of the family hurrying to the bedside with their attorney, too late.

I cannot overemphasize the importance of client service to build a law practice. A few months later my friend called again, this time with an urgent request to bring a will to the bedside of a remote cousin in extremis at the same hospital. I arrived half an hour later, only to find the patient comatose and the nurses all on break.

Gently my friend placed a pen in the old man’s hand and guided his fingers through a passable signature. Intrigued, I caught myself rocking back and forth on the oxygen line. Seeing his cousin turn blue and white with each rock, my friend joined me, placing both feet firmly on the tube. When the charge nurse returned, having consumed enough tobacco and vodka to get through her shift, we reported sadly that the patient had taken a turn for the worse. (The charge nurse is responsible for scheduling vacations and breaks, remembering whose turn it is to go for coffee, and explaining to patients and relatives why nurses call buttons never work.)

Slowly my reputation spread among would be devisees and legatees. Physicians and staff in hospices and long term care facilities knew me by name and welcomed my entrance in difficult cases, knowing their labors would soon end. Unlike medicine, the role of law is to facilitate the transfer of assets from one generation to the next, not to dispute the inevitable.

A few words about medical terminology may benefit the non-technical reader. In hospital parlance “Code Blue” means the “Emergency Response Team” (e.g., nurses not on break, rounded up by a designated driver “resident”) must set aside their coffee and magazines and race to the patient’s bedside with a terrifying array of electronic devices and computer graphics. (A “resident” is a doctor who has completed medical school but has not acquired the marketing skills or social contacts to maintain the traditional fee structure in the community.) With tubes, needles, electric shock, and brute force, they maintain the patient’s “vital signs” (e.g., breathing, heart-beat, blood pressure, and other knee jerk reactions) long enough for the hospital to bill for another day’s care. This assault is termed “heroic measures.”

Needless to say, “Code Blue” is very disruptive for staff and patient. What attorney with any human feeling would want a client`s last moments interrupted by a flying squad of blue-gowned zombies, whose mission, like that of the marketing department, is to maintain the hospital’s occupancy rate? Their passion and methods are reminiscent of prison guards apprehending a long-term inmate trying to escape.

I soon learned that by writing “No Code” in the patient’s “chart” on the “Physicians Orders” page, all this could be avoided. (Before everything went digital, the “chart” was the coffee stained wad of papers stuffed into a plastic sleeve on the patient’s door. “Physicians Orders” is printed at the top of a sheet of indecipherable scribblings that inflict a succession of torments on the patient.) A “No Code” order is so welcome by the “treatment team” (physicians and staff implicated in any given case) that they rarely notice it has not been signed by a physician. If anyone does notice, they fill in the missing scrawl during a “chart audit” after the patient’s demise.

A “chart audit” occurs when the treatment team meets with the hospital’s “risk manager” over drinks to supplement the chart with any information necessary to defeat malpractice claims. A “risk manager” is a person skilled in copying the handwriting and signatures of others, and adding to the chart any tests, with appropriate results, or other observations needed to document the institution’s “quality of care.” (“Quality of care” is an aspirational goal, e.g., what hospital administrators say they would do without financial and legal constraints. It is also a much used advertising slogan.)

“Medication Orders” appear on their own labeled page. Like Physicians Orders, they are a succession of scrawls that specify the intoxicants to render the patient quiescent so that Physicians Orders may be effectuated with the least possible resistance. The scrawl is followed by “T.I.D.,” “B.I.D.,” or similar abbreviation, which apparently has something to do with how often the drug is to be administered. Often just changing one letter, such as a “T” to a “B,” will have a radical impact on the patient’s progress.

My favorite, however, is “P.R.N.” This means the nurses can dose the old fellow up whenever they want. With a little practice “T.I.D.” can passably be rendered “P.R.N.” Then the crowd at the nursing station can concentrate on People or General Hospital without all those interruptions for bed pans and baths and meals that drive so many good people out of patient care.

Finally a note about dosages. One does not have to understand the difference between a milligram and a microgram to grasp that adding a zero to a medication order, or changing a zero to a period and eliminating one decimal point of some unwelcome stimulant, may bring about a dramatic change. Called “medication errors,” these events are so common that no one will ever suspect that a non-medical professional made them. If the risk manager does notice, she will correct it, and if she doesn’t, well, what are malpractice cases for if not to keep risk managers on their toes and increase the value of an estate?

Outside the discipline of the hospital environment, however, practice parameters become blurred. Home health care brought new opportunities and new challenges for LAS. My client persuaded an irascible uncle to bequeath him his entire estate, solely for the satisfaction of contemplating his family’s outrage. Dutifully I prepared the will, had it executed, and placed it in my office safe.

Thinking he could dispense with counsel altogether, however, my client paid a surprise visit to his uncle with a thermos of martinis laced with slug bait. This elixir eased the old man’s spirits, but a passing squad car interrupted their progress to the crematorium. My client had thought far enough ahead to make an evening appointment, but had not anticipated how to explain rolling uncle in a shopping cart to his 4x4 at midnight.

Every attorney has received desperate calls from newly arrested clients, and every attorney out of self -preservation develops techniques to deflect them. My client, however, was past reason. Although criminal law is not my specialty, I knew enough to recognize the implications of him entering into a plea bargain in exchange for a lighter sentence and testifying against me, his alleged co-conspirator.

Once again law office technology gave me the edge. I removed the deceased’s will from my vault and turned on my newly word processor. Within minutes I had replaced a token bequest to an orphanage with a clause prohibiting an autopsy on religious grounds and instructing the executor to cremate the body immediately after death.

For the benefit of any lawyer readers, I should add that this is only convincing when only the testator’s signature and a superfluous paragraph on the formalities of execution appear on the last page, so that other pages may be substituted without compromising the integrity of the document as a whole. Let me also caution the careful practitioner never to give anyone a copy until the final document is assembled after the testator’s death.

When I presented this instrument to the authorities, they immediately released my client on his own recognizance, with only a charge of unauthorized use of a shopping cart on his record. Wheeling the decedent with him from the station to the 4x4, however, I sensed our attorney-client relationship would soon end. Not two months later, my premonition proved correct.

I received the now familiar call to rush to the hospital with our form will around three in the afternoon. To my consternation, nine other relatives plus two lawyers were crowded about the patient, whose sex and condition were obscured by an oxygen tent. Communication with him or her was foreclosed; to extract a hand for signature a technical impossibility. I was going to leave when my client confronted me in the corridor with the demand that I do something or he would tell everyone how he had received so many unforeseen bequests.

“You might try leaving a cigarette on the far side of the oxygen tent,” I suggested helpfully. “A chemical explosion always sends a strong message to loiterers.”

For a second it appeared our old relationship had been restored. Smiling agreement, he slapped my arm, lit a cigarette, and pushed his way back into the sick room. I wonder if it occurred to him, as the cigarette burned through the plastic, why I had specified that he apply it on the far side of the bed. My old friend the charge nurse had just asked why I was crouching behind the nursing station with my head against the wall when the explosion occurred.

Because of my providential escape, I was the eulogist at the bar association memorial service for my departed colleagues. Although gratified by this tribute to my professional stature, I only represented two of the fourteen estates spawned by the accident: that of my original client and the charge nurse. Whoever was under the oxygen tent died intestate, and the feuding relatives fell into the hands of other members of the deceased lawyers’ firms. Regrettably I was not the only attorney in town to practice relationship selling.

My client always had had problems with beneficiaries other than himself. As his counselor, I felt empowered to substitute a bequest of his multi-million dollar estate to a private foundation in place of the testator’s ill-considered gifts to a medley of irresponsible hangers-on. As chairman and attorney for the foundation, I could consider at leisure a more economically meaningful distribution of the assets.

Happily, the market has favored our investments. After payment of my fees and expenses, there were sufficient funds last year to make a donation to the symphony in consideration for season tickets for our board and to reserve the best room at my club for our annual dinner meeting. We also made a major investment in computer equipment and linked it to my office through a LAN (local area network). The advantage of electronic data storage over paper is immediately apparent during tax audits and similar intrusions, when management may need to correct records from a remote site without leaving a paper trail.

No brief is complete without a citation to authority. “There is no right to die,” the Supreme Court proclaimed. Nevertheless, people do it anyway. The Court did not declare the penalty for dying without judicial authorization.

The Justices might have added that according to them, there is no right to life, either. If I were given to parallelisms and syllogisms, I would argue that LAS follows from both propositions, either logically or empirically.

The judicial uncoupling of life and death from human experience may explain why so many of our contemporaries exist with a sense of alienation and malaise, trapped in a legal system that respects neither their goings out nor their comings hither. When the law confronts ultimate issues, it is as powerless as a terminal patient or a first trimester fetus and shares the same prognosis.

Where judges may prevaricate and legal scholars quibble, practicing attorneys must act. In American life today, there is no problem without a legal solution. For my fellow citizens, LAS is a rational response to the moral dilemma in which the law has placed them. For an increasing number of my colleagues, it is a profit center. Do not request it, however, without first planning your estate with competent counsel.

Originally published in Satire Vol. 4 №3 (Winter 1997/98)

Fred McGavran is a deacon and serves as a chaplain with Episcopal Retirement Services. Black Lawrence Press published The Butterfly Collector, his award-winning collection of short stories, and Glass Lyre Press published Recycled Glass and Other Stories, his second collection. For more information, please see www.fredmcgavran.com.

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