On April 6, 2012, attorney Craig Charlton wrote Dr. George Risi and Dr. Stephen Speckart requesting a retraction of their solicitation letter encouraging other doctors to engage in assisted suicide contrary to state law.
The letter was sent via Certified Mail Return Receipt Requested and Regular U.S. Mail. To date, neither Dr. Risi nor Dr. Speckart have responded. A web version of the letter is set forth below. For the original print version, click here.
Dear Dr. Risi and Dr. Speckart:
I represent Montanans Against Assisted Suicide & For Living with Dignity. We are in receipt of the enclosed letter signed by you, which was mailed to doctors in Montana. I am putting you on notice that the letter exists, that it has been widely distributed, and that the letter has false and misleading information.
If this letter was not signed by you, please inform me at once so that I can take the necessary steps to alert doctors and the public. Regardless, you may want to contact your own counsel and your insurance carriers.
The letter encourages physicians to engage in assisted suicide, an activity that would not only put patients at risk, but would put the physicians at risk to both civil and criminal liability. Your letter, however, creates the opposite impression given its factual misrepresentations and omissions of fact:
1. Criminal liability
The letter states: “The Montana Supreme Court [in Baxter] ruled that no basis exists to prosecute a physician for providing aid in dying.” This statement is contrary to Baxter, which merely gives doctors a defense to prosecution. Baxter states:
"We therefore hold that under § 45-2-211, MCA, a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply."
Your letter is misleading and a clear misrepresentation of the court’s holding in Baxter. I would like to remind Dr. Speckart of his own testimony in a 2011 legislative hearing acknowledging the continuing risks to a doctor who engages in physician assisted suicide. Dr. Speckart testified: "[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision."[1]
Dr. Speckart’s statement was also consistent with this analysis of Baxter by attorneys Greg Jackson and Matt Bowman:
"[T]he Court's narrow decision didn't even "legalize" assisted suicide. . . . After Baxter, assisted suicide continues to carry both criminal and civil liability risks for any doctor, institution, or lay person involved."[2]
The bottom line is that your letter is false and misleading.
2. Civil liability
Your letter omits any discussion of a doctor’s potential civil liability for wrongful death and/or malpractice. Baxter did not overrule Montana case law imposing civil liability on doctors who cause or fail to prevent a suicide. See Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, Para 32-33 (1999). Other cases include Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997) (affirming a civil judgment against a physician who had prescribed an ”excessively large dosage” of barbiturates to a suicidal patient who then killed herself with the barbiturates).
3. Baxter’s defense is not guaranteed
For another example, see William Dotinga, “Grim Complaint Against Kaiser Hospital,” at http://www.courthousenews.com/2012/02/06/43641.htm Therein, the patient’s son is suing Kaiser Foundation Hospitals and affiliates, a doctor and two social workers on behalf of his father, who died in 2010 after a "terminal extubation." The doctor and other providers had relied on consent given by the patient’s daughters, which the son now claims was invalid. The son also claims that the daughters gave consent for the purpose of their own inheritances and that his father had ten years to live.
This case is relevant to Baxter given that patient consent is the linchpin to whether a doctor qualifies for the defense to prosecution or not. Moreover, even if a doctor avoids criminal prosecution, there is potential civil liability.
4. Professional discipline
The Board’s position statement, which is the center-piece of your letter, is subject to ongoing challenge by my client and has already been revised once. I encourage you to review the information submitted to the Board on this issue and the information found at http://www.montanansagainstassistedsuicide.org/2012/03/medical-examiner-board-statement-is.html
5. Reliance liability
If a doctor or a family member of an assisted suicide victim relies on your letter and the victim dies or is injured as a result, there is potential liability for the doctor and the family member who participates in the death. Moreover, the doctor relying on your letter could certainly use the letter as a defense and to bring one or both of you into the legal proceedings.
6. Request for Retraction
Given the above, on behalf of my client I request there be a follow up letter correcting the misstatements and omissions and informing all recipients of your letter the Board’s position statement has been revised and is subject to continuing review.
Please contact me with any questions or concerns. If you did not write the enclosed letter, please let me know immediately.
Yours truly,
Hinshaw Law Firm, PLLC
/s/
By: Craig D. Charlton
[1] Transcript excerpt at http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf
[2] “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html
