Analysis: New Jersey’s New Aid-in-Dying Law – Implications for Physicians, Estate Planning & Malpractice Attorneys

Newark, N.J. (November 6, 2019 - The State of New Jersey recently passed the Medical Aid in Dying for the Terminally Ill Act (MAID Act), which allows a physician to assist in the suicide of a terminally ill patient following three requests to do so by the patient, one of which must be written. With verification by a second physician, the treating physician may then prescribe medications for the patient to end his or her life. The law had a controversial start but recently survived a challenge in the Apppelate Division, and the New Jersey Supreme Court recently upheld the law. The new law presents a variety of complex ethical, medical, and legal issues in its application and effort.

Implications for Physicians

Physicians will be on the front line of this new area of law. They may be tested on their belief that the new law violates their Hippocratic oath. Some may face an ethical or religious dilemma if their beliefs run counter to the concept of suicide. This was the subject of the first challenge to the law and remains somewhat unresolved. Will those physicians be forced to turn away patients?

Beyond these enormous threshold issues for physicians, how will informed consent for these assisted suicides be obtained? How will the mental state of the patient be evaluated to ensure that depression or mental illness are not tainting what is arguably the most significant decision a person can make? Should every physician involved in these treatments request a psychiatric consult to protect themselves and ensure the well-being of the patient?

The practical issues related to the actual suicide are also complex. In a time when executions are not being conducted because the manner in which they are carried out is considered by some as inhumane or unreliable, how are individual physicians who are trained to save, not to take, life supposed to perform these procedures? If the procedures are not successful or there is a medication error, will a physician be exposed to malpractice or something similar to a wrongful life claim? What is the consequence if the procedure is not successful and the patient loses the mental capacity to make the decision to commit suicide in the future? These are all difficult questions for physicians to answer and they should seek legal guidance in navigating this minefield.

Implications for Estate Planning

In the context of estate planning, the issues are no less nuanced. Like the plight of King Lear, there is the spectre of misuse of healthcare powers of attorney by eager heirs-to-be. These documents must all be redrafted as they were prepared in a legal landscape that did not include the ability of an individual to commit assisted suicide.

There are also potential estate planning timing issues when the time of death can be controlled. Similar to the theories surrounding the death of George Steinbrenner in 2010, when there was no estate tax but there were indications it would be re-implemented in 2011, future heirs and indeed future decedents may try to use assisted suicide to time death for financial gains or planning certainty.

Practitioners may also be able to advise clients as to the preferred state to claim residency in for tax purposes, and which state’s physicians or assisted suicide law are the most beneficial. Practitioners must also carefully review any applicable life insurance policies which may contain exclusions for death by suicide. Thus adding another layer of complexity to the estate planning process.

Implications for Medical Malpractice Attorneys

From a litigation perspective, the issues overlap with the areas of concern for medical providers. How are physicians to be advised by counsel to ensure that patients are properly consulted? Does the potential failure of an assisted suicide create a new tort claim similar to wrongful life where a physician may be subject to liability for not only pain and suffering but the cost of all future medical care? In the context of long-term care, how do facilities balance the prospect of assisted suicide with potential failure to render care claims by family members who may not be present? Should all assisted suicides be performed at home, or in a hospital or hospice setting, to ensure the integrity of the process but also to insulate other medical providers from potential claims?

Conclusion

Jack Kevorkian famously lead the change for assisted suicide in 1990s saying “Dying is not a crime.” He was prosecuted for his work in assisting suicides by the terminally ill. It is amazing to note the dramatic shift in social acceptance of end of life dignity and the right to die that has taken place over the last 20+ years. However, this is still a very new and evolving area of society and the law which will present challenges for the medical and legal professions alike. This is why the two must work together to honor the dignity of every human being while avoiding possible misuse and abuse of this new law.

For more information on this law, contact the author of this alert, or visit our Medical Malpractice Law Practice page to find an attorney in your area.

Author:

Alex W. Raybould, Partner