DEFINING THE RIGHT TO DIE

By MICHAEL D. LEMONICK

DR. BRY BENJAMIN WILL NEVER FORGET the first time he helped a patient commit suicide. It was more than a quarter-century ago. An elderly couple came to his office, husband and wife, both terminally ill and in terrible agony with cancer. "They told me they would like a supply of pills on hand just in case," recalls the 71-year-old New York City internist. The law forbade him to agree; his conscience dictated otherwise. In the end, his conscience won, but Benjamin had to wrestle with this ethical dilemma alone. At the time, doctors didn't even whisper among themselves about assisted suicide, much less debate it in medical journals.

Suddenly doctors are talking about little else. In a decision that took legal scholars and medical ethicists by surprise last week, the Second Circuit Court of Appeals struck down a New York State law that prohibited physicians from helping their patients die. It's already legal for doctors to withhold or withdraw treatment at a patient's request. Now, as long as a patient is in the final stages of a terminal disease, mentally competent and able to take a lethal dose of medicine on his or her own, the state can't bar a doctor from prescribing that dose.

Taken alone, the three-judge panel's decision would be important enough, but it comes after a similar ruling last month by the Ninth Circuit Court in San Francisco, also one of the nation's most influential appeals courts. Unless the Supreme Court reverses both decisions--and there's no guarantee it will even hear the cases--the laws against physician-assisted suicide now on the books in a majority of states may be on their way out. "In the past 30 days there have been more developments in this field than there have been in the previous 20 years," says University of Michigan law professor Yale Kamisar.

If so, it means the law is finally catching up to what some physicians have been quietly doing all along. In a survey of Oregon doctors published in the New England Journal of Medicine earlier this year, 60% said they should be able to help some terminal patients die, and 7% admitted to having done so. The actual number, say ethicists, may be much higher.

Yet because the practice has been carried out in private, the medical establishment has yet to develop a consensus on how and when to help a patient die. Until now, explains Leslie Pickering Francis, a professor of law at the University of Utah, "patients who are sophisticated enough to want the aid and physicians who are sympathetic enough to want to give it often do it in such a way that the intent and the knowledge are left deliberately ambiguous." Only a few, like Dr. Jack Kevorkian, have defied this conspiracy of silence.

But now that legal prohibitions against assisted suicide may be crumbling, doctors all over the country could soon be as up front as Kevorkian--a prospect that has always disturbed many of them. For one thing, doctors may become more vulnerable to lawsuits because they will suddenly be open to scrutiny by family members and attorneys. If health professionals are going to be held accountable, says Dr. Howard Grossman, one of the three doctors who successfully challenged the New York law, "there must be clear guidelines of what constitutes a terminally ill patient."

Many physicians also fear that making the practice legal will lead to ill-considered decisions to terminate life. Some doctors believe--though have not proved--that a 1993 Dutch decision to legalize euthanasia has resulted in some cases of mercy killing without the patient's explicit consent. Clinical depression can often be the reason behind a terminal patient's death wish; so can unremitting, intense pain. Says Dr. William Wood, clinical director of the Winship Cancer Center at Emory University in Atlanta: "If we treat their depression and we treat their pain, I've never had a patient who wanted to die." Even those who believe assisted suicide is ethically sound agree that it should not be undertaken lightly. Benjamin, whose car sports a bumper sticker reading GOOD LIFE, GOOD DEATH, gets one or two requests a month for help in dying but talks most of his patients out of it. Says he: "You don't want to give pills to someone you think decided to commit suicide on Tuesday and on Wednesday would have changed his mind."

Is that a good argument for keeping the practice illegal? No, says Grossman: "It's incredibly arrogant to say nobody's going to be careful so we shouldn't let patients make this decision for themselves." What doctors do need is a set of standards that make clear the role a physician should play in letting a patient go. How imminent should death be? How do physicians make sure a patient is mentally competent and really wants to die? What alternatives should be suggested? What sort of counseling is appropriate? The American Medical Association presently frowns upon doctors who participate in patient suicide. Now it has announced plans to revisit the matter. --Reported by Jenifer Mattos and Andrea Sachs/New York

With reporting by JENIFER MATTOS AND ANDREA SACHS/NEW YORK