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Physicians and Euthanasia in the United States: Exploring the Likelihood of Criminal Prosecution

Abstract

Research findings indicate that some physicians throughout the United States have intentionally hastened the death of their terminally ill patients. While the actual incidence of such conduct is unknown, and the practice of euthanasia is illegal in all fifty U.S. states, few physicians have ever been prosecuted. Are these infrequent prosecutions due to the difficulty in detection or merely reflects the conscious decision by prosecutors not to pursue such matters? In an effort to explore this question, a self-administered mail survey was sent to all chief prosecutors in four U.S. states. Aside from the open and closed ended questions, prosecutors were presented with a vignette which was based on an actual event in Oregon where a physician hastened the death of a terminally ill patient by administrating a neuromuscular blocker without ventilation. Response rates were very acceptable; one state achieved nearly ninety percent and the overall response rate was seventy-six percent across all four states in the survey. Results indicated that the likelihood of criminal prosecution for hastening the death of a dying patient was relatively low; few prosecutors were inclined to pursue criminal charges and would rather refer the matter to the state medical board for administrative review. Almost half of the prosecutors believed that in some circumstances a physician-administered lethal injection may be morally justified even if it was illegal. While detecting incidences of euthanasia will remain difficult, even if such conduct is discovered, the likelihood of criminal prosecution appears rare.

[Word count: 243 words]

Keywords: Euthanasia, physician, criminal prosecution, neuromuscular blocker, lethal injection, paralytic agent[Full word count (entire file): 8,275]

Introduction

The legal acceptability of both euthanasia and physician-assisted suicide

continues to be debated throughout the world. Over the past decades, several countries

and some U.S states have either legalized the practices or specifically prohibited them

(Hillyard & Dombrink, 2001, 211-220; Chochinov & Wilson, 1995: 595-597; Humphry,

2004; Humphry & Clement, 2000; Bumgardner, 2000). In the United States, only

physician-assisted suicide (PAS) is legal only in Oregon; the practice of euthanasia

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remains illegal in all fifty states (Meisel & Cerminara, 2004: 12-35; Quill, 2004: 2031;

Hillyard & Dombrink, 2001). Yet despite the almost universal illegality of both

practices, there is ample evidence that American physicians have intentionally hastened

the death of their terminally ill patients by either providing a lethal prescription for their

patients to self-administer (physician-assisted suicide), or by directly injecting their

patient with a lethal bolus (Emanuel, 2002; Meisel & Cerminara, 2004: 12-39; Emanuel,

Fairclough, Clarridge, Blum, Bruera, Penley, et al., 2000; Emanuel, Daniels, Fairclough

& Clarridge, 1998; Meier, Emmons, Wallenstein, Quill, Morrison & Cassel, 1998; Back,

Wallace, Starks & Pearlman, 1996). Aside from those physicians who may intentionally

hasten the death of their patients, there is likely an even larger group of physicians who

unintentionally hasten a patient’s death during the course of aggressive palliative care

(see Anon & Anon, 2003). Although the death of a patient under these circumstances

will often be ethically justified by the principle of double effect (Fohr, 1998), it is

important to note that the principle of double effect is just that -- an ethical principle, not

a legal one (Cantor, 2001: 186; Cantor & Thomas, 1996: 108; Anon & Anon, 2003).

While some argue that an ethical doctrine has been converted into a legal one (see, e.g.,

Alpers, 1998: 319), others argue that the “criminal law principles of recklessness and

justification” are more appropriate (Cantor, 2001: 186). Nevertheless, many physicians

fear that should their terminally ill patients expire during the course of aggressive

palliative care, they run the risk that their actions could be misconstrued as euthanasia

and thus expose them to criminal charges (Conlan, 1999: 86; Orentlicher & Caplan,

2000: 255-256; Shapiro, 1994: 149; Meisel & Cerminara, 2004: 6-96, 6-98; Anon &

Anon, 2003). In fact, it is this fear of investigation or prosecution which may lead some

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physicians to take the “safer” approach by undermedicating their dying patients (Meisel,

Snyder & Quill, 2000; Anon & Anon, 2003). While such an approach appears logical on

its face, underprescribing will result in needless patient suffering (Hill, 1993), and the

physician will still run the risk of civil or administrative sanctions for the under treatment

of pain (see e.g., Bergman et al. v. Wing Chin, M.D., Eden Medical Center, No. H-

205732-1, Alemeda Superior Court (2001); Meisel & Cerminara, 2004: 6-100;

Guglielmo, 2002). But whether the physician intentionally or unintentionally hastens a

patient’s death, two things remain clear: the actual incidence of euthanasia and PAS in

the United States remains unknown (Emanuel, 2002: 150), and relatively few physicians

have been prosecuted for intentionally hastening the death of their terminally ill patients

(Meisel & Cerminara, 2004: 12-39; Alpers, 1998; Chochinov & Wilson, 1995: 596;

Gostin, 1993: 97). Consequently, the question becomes whether the infrequent

prosecutions are the result of reporting bias as Alpers (1998) recognized, or instead a

conscious decision by prosecutors not to pursue such matters? In other words, how likely

is it that a physician would be investigated or prosecuted for intentionally hastening the

death of their patients? This question becomes important not only to those few

physicians who may actively engage in euthanasia (Emanuel, 2002: 151), but to the many

more physicians who only intend to aggressively treat the symptoms of the dying but fear

that they would be suspected of euthanasia should the patient expire. If the results of this

pilot study indicate that prosecutors are less inclined to prosecute a physician for the

intentional hastening of a patient’s death, it would seem reasonable to believe that

prosecutors would be even less inclined to prosecute those who unintentionally hasten the

death of their patients during the course of aggressive palliative care. Consequently,

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physicians could focus more on palliating the symptoms of their dying patients and less

about whether their actions could be interpreted as active euthanasia.

The present study

How do prosecutors view matters relating to hastened death, particularly

euthanasia? In an effort to explore this question, the instant article seeks to go beyond

the limited number of published prosecutions by exploring the opinions of prosecutors on

the topic of euthanasia and the legal risks associated with hastening the death of the

dying. This study builds upon earlier research which focused on prosecution and end-of-

life decision making, particularly the research pioneered by Alpers (1998) and Meisel,

Jernigan & Youngner (1999). Before discussing the methods and results of this study, it

would be helpful to provide some background on the American prosecutor, their role in

the administration of justice, the decision to charge, and the difficulties associated with

the prosecution of health care professionals.

Prosecutors

In the United States, there are essentially three branches of government: the

legislative, judicial, and executive. While many of their functions have been known to

overlap, the legislative branch essentially passes laws, the judicial branch interprets, and

the executive branch enforces (Zalman, 2002: 2-7). The American prosecutor is an

executive branch official who, in most jurisdictions, is elected and serves a particular

term of office before becoming re-elected or defeated in a public election (Gordon &

Huber, 2002: 335; Jacoby, 1980: xv). Moreover, as an elected official, the prosecutor is

not only a representative of the community (Gordon & Huber, 2002: 334; Jacoby, 1980),

but an officer of the court whose job is to seek justice, not necessarily a conviction (see

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e.g., Illinois Rules of Professional Conduct, 3.8). One of the first steps in the

administration of justice occurs once a prosecutor charges a person with a crime (Zalman,

2001: 420; Jacoby, 1979, 1980; Gordon & Huber, 2002). While a court may ultimately

dismiss a charge for lack of evidence, or a jury may later acquit a defendant at trial, the

amount of proof that is necessary to initially charge a suspect with a crime is only

probable cause, not proof beyond a reasonable doubt (the standard of proof necessary to

secure a criminal conviction) (Zalman, 2001: 420, 444). And while juries have acquitted

defendants for lack of evidence, they have also been known to find defendants not guilty

even though the facts to support a conviction were present, by virtue of what is known as

jury nullification (Finkel, Hurabiell & Hughes, 1993). But an eventual dismissal or later

jury nullification may be of little consequence to a defendant who must endure a myriad

of personal and financial costs before being discharged from the criminal justice system.

It is for this very reason that many have regarded the power to charge a person with a

crime as the most significant decisions a prosecutor can make (Spohn, Beichner & Davis-

Frenzel, 2001: 206; see also, Jacoby, 1979, 1980; Cole, 1970; Miller, 1969). In fact,

former U.S. Supreme Court Justice Robert H. Jackson recognized that the American

“prosecutor has more control over life, liberty, and reputation than any other person in

America” (Jackson, 1940: 18; Anon & Anon, 2003: 77). While the power to charge a

person with a crime remains significant, prosecutors also have the discretion not to

charge a person with a crime, even if the facts could arguably support a conviction

(Miller, 1969; Anon & Anon, 2003). So, what determines whether a person will be

charged or not charged with a crime? Albeit there are many factors associated with the

charging decision, one key variable is convictability – the ability of the prosecutor to

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obtain a conviction in his or her community in light of both the offense and offender (see

Frohmann, 1997: 535; Spohn, et al., 2001: 207; Jacoby, 1979, 1980; Thomas & Fitch,

1976; Cox, 1976; Miller, 1969; Cole, 1970, 1973; Anon & Anon, 2003). And because

the local environment and the “nature of the population he represents” plays a significant

role in whether a conviction could be obtained (Jacoby, 1980: 47), it is entirely possible

that a prosecutor from one jurisdiction could decide to bring charges against a defendant

based on their own reading of community sentiment, while a prosecutor in another state

or jurisdiction could decline to bring charges based on the same set of facts (see Anon &

Anon, 2003; Benson & Cullen, 1998). Bottom line, prosecutors have limited resources

and must pick their battles wisely; the failure to read or predict community sentiment

could result in jury nullification and even defeat at the next election (Finkel et al., 1993;

Kaplan & McKeon, 1999: 273).

Prosecutions involving Physicians

As noted earlier, euthanasia remains illegal throughout the United States.

Physicians who intentionally hasten the death of their patients, even with the consent of

the patient, could be charged criminally with murder or a lesser-included offense such as

manslaughter (Meisel & Cerminara, 2004:12-36; Alpers, 1998: 310; Gostin, 1993: 96;

Kirkland, 1994: 39). But reports of prosecutions involving physicians are limited (Meisel

& Cerminara, 2004; Anon & Anon, 2003; Alpers, 1998; Gostin, 1993), and those in the

context of hastened death appear to be more about serial killers than health-care workers

motivated by compassion (see Kinnell, 2000). Even Jack Kevorkian, a Michigan

physician who was acquitted on three separate occasions for assisting in suicides, would

likely be free today had he not switched from PAS to euthanasia, challenged prosecutors

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to charge him on national television, and later decided to represent himself in court. In

fact, the newly elected prosecutor in Michigan had run on a platform of not prosecuting

Jack Kevorkian for his assistance in suicides (even though such conduct was arguably

illegal) (Kaplan & McKeon, 1999: 273). In the end, while some argue that the

prosecution of physicians may be increasing (Liederbach, Cullen, Sundt & Geis, 2001),

prosecutions stemming from end-of-life care are extremely rare (Alpers, 1998: 324), and

several reasons for this exist. First, inappropriate conduct in the health care environment

is difficult to detect (Anon & Anon, 2003; Alpers, 1998; Jesilow, Pontell & Geis, 1985;

Meisel et al., 1999; Friedrichs, 2004). The criminal justice system in the United States is

largely reactive and must depend in large part on informants (Alpers, 1998: 315;

Friedrichs, 2004). Doctor-patient communications are private matters and many of the

prosecutions involving health care providers stemmed from breakdowns in

communication, disagreements among family members, or complaints initiated by other

health care providers “rather than suspicious or overzealous prosecutors” (Alpers, 1998:

311; Anon & Anon, 2003). Secondly, patient condition matters. Although Anon &

Anon (2003) found that when dealing with chronic pain, the likelihood of being

prosecuted was greater in some states than others -- they also found that the patient’s

condition mattered: prosecutors were more concerned about a physician dispensing

opioids to a chronic pain patient than a physician who was aggressively treating the pain

of a terminally ill patient who subsequently expired during the course of treatment (Anon

& Anon, 2003). Moreover, Meisel & Cerminara (2004) speculate that the limited number

of reported prosecutions for PAS and euthanasia “may result from the fact that . . .

perpetrators are not indicted, indictments are dismissed, juries refuse to convict even

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when evidence of factual guilt is quite clear, judges are lenient in sentencing, parole

boards grant parole, and governors grant pardons” (Meisel & Cerminara, 2004: 12-41).

Methods

Physicians and Euthanasia: Part II of a Three Part Study

In an effort to explore the likelihood that a physician would be investigated or

prosecuted for committing euthanasia, a self-administered mail survey involving chief

prosecutors from the states of Connecticut, Maryland, Oregon, and Washington was

conducted from November 2001 until March 2002. The original questionnaire contained

twenty-nine questions with a section for additional comments. The first part of the

questionnaire focused on the likelihood of prosecution stemming from the aggressive

treatment of pain; those results have been published in both the United States and India

(Anon & Anon 2003; Anon & Anon, 2004). The second part of the questionnaire

focused on euthanasia and the likelihood of prosecution and is singularly reported here

(see Appendix B for an excerpt of the original questionnaire). When appropriate, tables

from the first study will appear in the appendix for ease of reference (with permission of

the publisher). Oregon and Washington were chosen for the purpose of comparing two

sister states in the west, one of which had legalized PAS; Connecticut was chosen

because of its location in the east coupled with the fact that an earlier pain study had been

conducted in that state and the prosecutors there were appointed, not elected. The

selection of Maryland was not intended at first, but in light of the assistance provided by

the Attorney General, coupled with its location in the eastern U.S. and size of the state,

Maryland was added to the sample (for a further discussion of state selection, see Anon &

Anon, 2003). The questionnaire was subjected to pre-testing and earlier Institutional

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Review Board (IRB) approval was secured at the time of data acquisition, as well as

during the subsequent analysis and publication of the results.

The Case of James Gallant, MD

The instant study employed a vignette which closely paralleled an actual event in

Oregon where a physician ordered the administration of Succinylcholine without

ventilation to a dying patient who had suffered a subarachnoid hemorrhage (see Gallant

v. Board of Medical Examiners, 974 P.2d 814 (1999)). Several scholars have discussed

the ethics of administrating a paralytic agent to a dying patient without ventilation

(Perkin & Resnik, 2002; Hawyrluck, 2002; Truog, Burns, Mitchell, Johnson & Robinson,

2000; Kirkland, 1994; Truog & Burns, 1994), so the vignette in this study adds to the

continuing debate. In both Dr. Gallant’s case as well as in the vignette, the physician was

disciplined by the state medical board but not prosecuted criminally. Was this result

unique to one particular county, the state of Oregon, or would prosecutors in the four

states be more inclined to refer the matter to the state medical board in lieu of criminal

prosecution? Since prosecutors are elected representatives, could the prosecutor’s

decision not to prosecute serve as a proxy for community sentiment on the topic of

euthanasia? In the end, the results gleaned from this pilot study will not only be of

interest to those physicians who intentionally or unintentionally hasten the death of their

dying patients, or who administer paralytic agents without mechanical ventilation to

dying patients, the results will also provide insight into the attitudes and beliefs of elite

policymakers on the topic of euthanasia -- a topic that will remain both controversial and

relevant in the years to come, particularly in light of the advances in medical technology,

increases in health care costs, and an aging population.

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Results

Respondents

A total of eighty-four (84) prosecutors out of a possible one-hundred ten (110)

participated in the survey, with 79.8 percent of the respondents being the chief prosecutor

themselves (See Table 1). Response rates were very acceptable, ranging from a high of

89.74 percent (Washington), to a low of 61.54 percent (Connecticut); the overall response

rate was 76.36 percent. Consistent with earlier research findings (Jacoby, 1980; Zalman,

2001), most prosecutors were from small offices with relatively light felony caseloads

when compared to the fewer large offices which existed in the states (annual felony

caseload and number of assistant prosecutors in the office is a useful proxy for

characterizing the jurisdiction as either rural or urban). The range of prosecutors per

office ranged from one to two-hundred and fifty with the mode of 2, a median of 8, and a

mean of 18. Most prosecutors were elected (72.6%) (chief prosecutors in Connecticut are

appointed officials). Although not all of the elected positions were partisan-based,

respondents described themselves politically as Democrats (42.9 percent), Republicans

(34.5 percent), or Independents (15.5 percent). While the number of years in their current

position varied from one to twenty-eight years, most had been in their position for over

seven years (the median length of service was seven years; the mean was 9.69).

[Insert Table 1 about here]

Vignette involving Euthanasia – Table 2

In an effort to explore a realistic assessment of the likelihood of prosecution, a

vignette was constructed and based upon an actual event in Oregon which arguably

amounted to euthanasia. In brief, the vignette paralleled the James Gallant case in 1996,

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the Oregon physician who authorized the administration of Succinylcholine without

ventilation for a patient who had suffered a subarachnoid hemmorage and who, for all

practical purposes, was already dead and would not benefit from surgery. Prior to her

cerebral accident, the patient had expressed to both her physician and relatives “that in

the event that she became terminally ill, . . . she did not want her life prolonged through

artificial or extraordinary means” (In the Matter of James David Gallant, MD, Final

Order, page 3; Gallant v Board of Medical Examiners, 974 P.2d 814 (1999)). Not only

was the vignette useful for comparative purposes, the use of paralytic agents without

ventilation for the dying has been a subject of debate in the medical literature (see e.g.,

Truog, Burns, Mitchell, Johnson & Robinson, 2000; Perkin & Resnik, 2002; Hawyrluck,

2002). While the facts had to be modified slightly to lessen the burden on respondents

and thus decrease the likelihood of non-response (see Dillman, 1999), attempts were

made to keep as close as possible to the original scenario by incorporating the fact that

the matter had already been referred to the state medical board who subsequently

disciplined the physician. This was important since earlier research has indicated that

prosecutors have opted not to pursue criminal prosecution when other alternatives exist

(Anon & Anon, 2003; Benson & Cullen, 1998). In fact, Anon & Anon (2003) found that

when it came to deciding whether to charge a physician with a crime relating to the

prescribing of drugs, whether the state medical board investigated and handled the matter

appropriately (or failed to do so), was a “very important consideration” by respondent

prosecutors (Anon & Anon, 2003:89) (See Appendix A). The vignette appeared as

follows:

[Insert Table #2 about here]

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Following the vignette, prosecutors were asked to estimate the likelihood that they would

take action based on a scale ranging from 0 percent (no likelihood), to 100 percent

(Extremely likely). Specifically, prosecutors were asked if the matter reached their office

first, how likely would they have opted to refer the matter to the state medical board in

lieu of conducting a criminal investigation or prosecution (see Appendix B).

Respondents were then asked if they believed that an offense had been committed, and if

so, what that offense(s) was as well as the likelihood (0 to 100%) that they would pursue

criminal prosecution.

Likelihood of referring matter to the state medical board (Table 3 & Figure 1)

In the vignette, as it was in the actual case, the facts indicated that the matter had

already been referred to the state medical board, the physician had been disciplined, and

1400 citizens had signed a request that the physician not be prosecuted (Gallant v Board

of Medical Examiners, 974 P.2d 814 (1999); Hoover, 1997). The results of the survey

indicated that the prosecutors were almost evenly split. Half of the respondents (50.6%)

estimated the likelihood of referring the matter to the state medical board instead of

pursuing their own investigation or prosecution to be 50 percent or less; 48.1 percent of

the respondents estimated the likelihood of medical board referral to be 70% or greater

had it not already been reported. In short, almost half would have simply referred the

matter to the state medical board. The mean likelihood of referral was 53.5% and the

median 50%. See Table 3.

[Insert Table 3 here]

However, when controlling for state, a different pattern emerges. For instance,

when examining the states from a standpoint of merely descriptive statistics (in

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recognition of the small sample size), prosecutors from Maryland were the most likely to

refer the matter to the state medical board in lieu of investigation (64.7% mean

likelihood), followed by Oregon (53.5% mean), Washington (50.9% mean), and finally,

Connecticut (38.6% mean). See Figure 1 below.

[Insert Figure 1 here]

Whether an offense was committed (Table 4)

Prosecutors were asked whether they believed an offense had been committed.

Over 54% of the prosecutors answered YES (54.9%), 19% answered NO (19.5%), and

25% did not know (25.6%). If prosecutors answered YES, they were then asked what

offenses were involved. They subsequently classified the offense(s) as Homicide/Murder

(28), Manslaughter (11), Aiding or Promoting Suicide (5), Endangerment (1), violation of

controlled substances laws (1), and violation of a medical regulation (1). Those

answering YES were then asked to estimate the likelihood that they would actually

prosecute. Of those forty-five respondents, 22 (51.2%) estimated the risk of prosecution

to be 50% or less. The mean risk score was 52.3%, the median was 50% (likelihood of

prosecution), and the mode was 8 (80% risk).

[Insert Table 4 here]

Could euthanasia be morally justified and should life be maintained at all costs?

In addition to the questions directly relating to the vignette, respondents were also

asked whether they believed if a physician-administered lethal injection would be

morally justified even if illegal, and whether life should be maintained for as long as

possible in all circumstances (Tables 5-6). Both of these questions were adopted from

Meisel, Jernigan, and Youngner’s (1999) earlier study and used for purposes of

13

comparison (recognizing that methodological limitations may exist in light of non-

response error and minor modification of the questions (see Meisel et al., 1999; Dillman,

1999). Forty-seven percent (47.5%) of the respondents answered YES, 32.5 % answered

NO, and 20% were not sure (in the Meisel study, 60% answered YES) (Meisel et al.,

1999).

[Insert Table 5 here]

Vitalists (Whether Life should be Maintained in All Circumstances) (Table 6)

Finally, prosecutors were also asked about their opinions regarding euthanasia

and whether they think that life should be maintained by whatever means possible

(vitalists). Survey respondents were asked whether they personally believed that life

should be maintained for as long as possible, by whatever means possible, in all

circumstances. An overwhelming 86.4% of respondents answered NO, only 2.5%

answered YES, and 11.1 % were not sure (recalling that in the Meisel study, 90.9% of the

respondents in that study answered NO (did not think life should be maintained in all

circumstances by whatever means possible), and 60% believed that physician-

administered lethal injections may be morally justified even if illegal (with 28%

dissenting and 12% who were not sure) (Meisel et al., 1999: 1094).

[Insert Table 6 here]

Finally, some prosecutors in the study provided written comments regarding the survey

and euthanasia:

Prosecutor #1: As an elected prosecutor in Washington, my judgment is constrained by the absence of a “right to die” law – as well as my moral upbringing as a [denomination omitted by researcher to protect confidentiality]. Euthanasia/mercy killing is a long step from sloppy and/or greedy pill pushers.

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Prosecutor #2: Difficult area that I have not yet had to address. My answers are wishy-washy mainly because I have not given much practical thought to the issue. In simple terms, I would likely not prosecute a doctor whose purpose is to relief [sic] a person’s suffering provided they have not “actively” committed euthanasia. I just feel out of my depth, having to define “active euthanasia.”

Prosecutor #3: With appropriate safeguards, terminally ill persons should be permitted to end their own lives with dignity and any necessary medical assistance.

Prosecutor #4: In most situations the administration or prescription of what eventually became lethal drugs is an area where criminal prosecution and criminal courts don’t belong.

Prosecutor #5: A complex and sensitive area of the law for prosecutors. I’m glad to have the opportunity to comment.

Prosecutor #6: My wife died of cancer . . . [omissions to protect confidentiality] . . . therefore very supportive of physician assisted suicide euthanasia.

Prosecutor #7: The fact scenarios DO NOT contain enough information to render an opinion as to criminality and charges. Homicide cases, especially those involving members of the medical profession as defendants, are extremely complex & depending on the facts, difficult to prove.

Prosecutor #8: The questions asking if we would send matters to the medical board IN LIEU of police investigation are not well taken. We would likely PARALLEL investigations. . . . This is an interesting and thought provoking survey.

Prosecutor #9: Unless the doctor’s conduct is extremely outrageous, I think it is not productive to prosecute doctors.

Prosecutor #10: My [omitted] and my [omitted] were both hospice patients. My experience of their deaths completely determined my answers to your great questions. I was surprised how strongly I FEEL on these issues. Rational analysis played not part. So . . . if my office encounters one of these scenarios I would assign the case to someone other than myself.

Prosecutor #11: Some of the scenarios you have presented are best answered through a coroner’s inquest . . . [who] will arrive at a decision based on standards in the community. The issues are very complex and would be something for the legislature to deal with.

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Discussion

Research findings indicate that some physicians throughout the United States

have intentionally hastened the deaths of their terminally ill patients. While there are

various methods of doing so, the administration of a neuromuscular blocker without

mechanical ventilation is certainly one of them. Several commentators have questioned

the use of paralytic agents as a palliative treatment since these agents lack “analgesic or

sedative properties” (Truog et al., 2000: 508; Hawryluck, 2002; Truog & Burns, 1994:

39). Others, however, argue that their use may be indicated for patients experiencing

agonal respiration, since the patient is very close to death and questions whether the last

gasp is really necessary (Perkin & Resnik, 2002). In the present study, a vignette

involving the use of a neuromuscular blocker was employed without mechanical

ventilation and the patient died as a result. Was this an isolated event, or does this occur

throughout the United States -- much like the practice of terminal sedation (a procedure

where a patient suffering from intractable pain is sedated to the point of unconsciousness

with the use of both sedatives and analgesics (Cherny & Portenoy, 1994))? It appears

that the vignette in this study demonstrates an on-going protocol, particularly in light of

the fact that the medical community has debated the use of neuromuscular blockers

among dying patients (see, e.g., Truog et al., 2000: 508; Kirkland, 1994: 39), coupled

with the fact that in both the vignette and the actual case, the nurse stated that “sometimes

Succinylcholine is used in these circumstances” (Gallant v Board of Medical Examiners,

974 P.2d 814, 815 (1999)). Consequently, the question remains, if prosecutors did

become aware of such conduct, what would they do? The results indicate that at the

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most, many prosecutors would rather refer the matter to the state medical board than

investigate and prosecute the attending physician.

First, of the four vignettes used in the original study, this particular vignette

offered the most extreme scores with almost half (48%) of the respondents estimating the

likelihood of referring the matter to the state medical board in lieu of investigation or

prosecution as 70% or greater (very high likelihood of referral instead of investigation).

Moreover, when looking at the individual states, different patterns emerged. For

instance, in Connecticut, prosecutors were less likely to refer the matter to the state

medical board (more likely to investigate themselves) had they become aware of the case

first. However, it is important to note that while 50% (four prosecutors) thought that an

offense had been committed, 37.5% (three prosecutors) did not think an offense had even

occurred, and one prosecutor admitted to not knowing if an offense had occurred. On

the other end of the spectrum, Maryland prosecutors were less concerned and displayed

remarkable consistency when matters concerned a terminally ill patient.

For instance, Anon & Anon (2003) found that Maryland prosecutors were the

most likely to recommend an investigation of the physician when the vignette involved

the dispensing of opioids for chronic, non-cancer pain (Anon & Anon, 2003). Yet when

the patient was terminally ill and the patient expired during the course of aggressive

palliative care (as was the case in Scenario #2), Maryland prosecutors as a group were

more inclined to refer the matter to the state medical board instead of recommending a

criminal investigation of the physician (Anon & Anon, 2003). Here, in the case of

euthanasia, Maryland prosecutors were also the most likely as a group to refer the matter

to the state medical board in lieu of investigation or prosecution followed next by Oregon

17

(which permits physician-assisted suicide) and its sister state Washington (53.5% and

50.9% respectively). These decisions to refer the matter to the state medical board in lieu

of investigation or prosecution were made despite the fact that 58.8% of Maryland

prosecutors thought an offense had occurred (with 35.3% admitting to not knowing if one

had occurred; similar results were found across all four states where 54.9% thought an

offense had occurred and 25.6% did not know). Consequently, at least when it comes to

Maryland, prosecutors as a group make a distinction based on the patient’s condition.

Even if an offense was believed to have occurred, they would have nevertheless referred

the matter to the state medical board instead of pursuing their own independent

investigation.

This reluctance among the four states to retain jurisdiction over the matter and opt

to refer it to the state medical board should not come as a surprise in light of the other

questions posed in the survey. For instance, from a standpoint of merely descriptive

statistics, when prosecutors were asked about whether a physician-administered lethal

injection may be morally justified even if it was illegal, 48% responded YES, 33%

percent NO, and 20% were not sure. It is worth noting that in Meisel’s earlier study

(1999), 60% of the respondents answered YES to this very same question (Meisel et al.,

1999: 1094). In fact, when prosecutors were asked if they personally believed that life

should be maintained for as long as possible at all costs, 89% of the prosecutors in the

present study who responded answered NO (see Table 6). In fact, a similar result was

also obtained in Meisel’s study (91% of the prosecutors who responded to the question

answered NO) (Meisel et al., 1999: 1094).

18

The reluctance of prosecutors in four states to prosecute physicians for conduct

involving a terminally ill patient may stem from several other reasons. For instance,

since most prosecutors are elected or at least secure their jobs through the political

process, they may be acutely aware of their constituency and recognize the difficulty in

obtaining a jury conviction in the community (particularly in light of the 1400 signatures

mentioned in the scenario) (see Jacoby, 1980: 47). Since a key factor in a prosecutor’s

decision to charge a person with a crime is convictability, it seems that if the case had

ever gone to a jury, jury nullification would be the likely outcome (see Finkel et al.,

1993). This was further evidenced by the earlier written comment by Prosecutor #11

regarding community standards. Alternatively, the decision not to pursue an

investigation or prosecution may be a reflection of the prosecutor’s own belief system or

the influence of their own ideology on the decision to enforce the law (see Meisel et al.,

1999; Caddell & Newton, 1995; Jacoby, 1980). This was also evident by the respondents

own hand-written comments, particularly those who may have experienced the loss of

loved ones or believe that the courts should stay out of such matters (see written

comments of Prosecutors #1-4, 6, 9-10). Finally, one reason why Maryland prosecutors

may have been less inclined to recommend a criminal investigation when compared to

the other states may stem from the on-going educational efforts by the Maryland

Attorney General on the topic of end-of-life care (see, e.g., Schwartz, 1999).

In the end, while each case presented to a prosecutor has its own unique set of

facts (Cox, 1976: 391; Prosecutor comment #7), the pattern which emerges from this

pilot study indicates that in the event the conduct is discovered, prosecutors were not

inclined to pursue criminal prosecution. The likelihood of detection is low, the criminal

19

justice system is reactive, and few juries would convict a physician who was motivated

by compassion. Consequently, if prosecutors are less inclined to prosecute a physician

for what amounted to euthanasia, physicians who are only providing aggressive palliative

care to their dying patients would have even less to worry about (see, Anon & Anon,

2003).

Conclusion

The debate involving the morality and legality of euthanasia will continue, and

requests for hastened death are likely to increase in light of an aging baby-boom

population, an ever-expanding culture of individualism, and the fact that most deaths now

occur in institutions instead of the home (Hillyard & Dombrink, 2001: 5). Physicians

throughout the United States will likely continue to intentionally and unintentionally

hasten the death of their terminally ill patients, whether or not such conduct is legal.

While the administration of paralytic agents without ventilation appears to be an

acceptable protocol in some circles, it is merely one of the ways that physicians have

accomplished this particular result. The vignette employed in this study, based on an

actual event in Oregon, reveals that the likelihood of prosecution across all four states

seems unlikely and that the limited number of published prosecutions may indeed reflect

the conscious decision of prosecutors not to pursue such matters. Whether this stems

from their own beliefs, their reading of the community, or a combination of the two, most

prosecutors were more likely to refer the matter to the state medical board than pursue

their own investigation -- many did not even view the conduct as a violation of the law,

and almost half of the respondent prosecutors believed that a physician-administered

lethal injection may be morally justified, even if it was technically illegal.

20

References

Alpers, A. (1998). Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying. Journal of Law, Medicine, & Ethics, 26(4), 308-331.

Anon & Anon (2004).

Anon, & Anon (2003).

Back, A., Wallace, J.I., Starks, H.E., & Pearlman, R.A. (1996). Physician-Assisted Suicide and Euthanasia in Washington State: Patient Requests and Physician Responses. JAMA, 275(12), 919-925.

Benson, M., & Cullen, F.T. (1998). Combating Corporate Crime: Local Prosecutors at Work. Boston: Northeastern University Press.

Bumgardner, C. (2000). Euthanasia and Physician-assisted suicide in the United States and the Netherlands: Paradigms compared. Indiana International and Comparative Law Review, 10, 387-416.

Caddell, D.P., & Newton, R.R. (1995). Euthanasia: American Attitudes toward the Physician=s Role. Social Science and Medicine, 40, 1671-1681.

Cantor, N.L. (2001). Twenty-Five Years after Quinlan: A Review of the Jurisprudence of Death and Dying. Journal of Law, Medicine, & Ethics, 29(2), 182-196.

Cantor, N.L., & Thomas, G.C., III (1996). Pain Relief, Acceleration of Death, and Criminal Law. Kennedy Institute of Ethics Journal, 6(2), 107-128.

Cherny, N.I, & Portenoy, R.K. (1994). Sedation in the management of refractory symptoms: guidelines for evaluation and treatment. Journal of Palliative Care, 10(2), 31-38.

Chochinov, H.M., & Wilson, K.G. (1995). The Euthanasia Debate: Attitudes, Practices, and Psychiatric Considerations. Can J Psychiatry, 40(10), 593-602.

Cole, G.F. (1973). Politics and the Administration of Justice. Beverly Hills, CA: Sage Publications.

Cole, G.F. (1970). The Decision to Prosecute. Law and Society Review, 4, 331-343.

Conlan, M. F. (1999). U.S. Congress May Try to Kill Oregon=s Assisted-Suicide Law. Drug Topics, 143(19), 85-86.

Cox, S.J. (1976). Prosecutorial Discretion: An Overview. American Criminal Law Review, 13(3), 383-434.

21

Dillman, D.A. (1999). Mail and Internet Surveys: The Tailored Design Method (2nd ed.). New York: John Wiley and Sons, Inc.

Emanuel, E.J. (2002). Euthanasia and Physician-Assisted Suicide: A Review of the Empirical Data from the United States. Archives of Internal Medicine, 162, 142-152.

Emanuel, E.J., Fairclough, D., Clarridge, B., Blum, D., Bruera, E., Penley, W.C., Schnipper, L.E., & Mayer, R.J. (2000). Attitudes and Practices of U.S. Oncologists regarding Euthanasia and Physician-Assisted Suicide. Annals of Internal Medicine, 133(7), 527-532.

Emanuel, E.J., Daniels, E.R., Fairclough, D.L., & Clarridge, B.R. (1998). The Practice of Euthanasia and Physician-Assisted Suicide in the United States: Adherence to Proposed Safeguards and Effects on Physicians. JAMA, 280(6), 507-513.

Finkel, N.J., Hurabiell, M.L., & Hughes, K.C. (1993). Right to Die, Euthanasia, and Community Sentiment. Law and Human Behavior, 17(5), 487-506.

Fohr, S.A. (1998). The Double Effect of Pain Medication: Separating Myth from Reality. Journal of Palliative Medicine, 1(4), 315-328.

Friedrichs, D.O. (2004). Trusted Criminals. White-collar Crime in Contemporary Society (2nd ed.). Boston: Wadsworth Publishing Company.

Frohmann, L. (1997). Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking. Law & Society Review, 31(3), 531-555.

Gordon, S.C., & Huber, G.A. (2002). Citizen Oversight and the Electoral Incentives of Criminal Prosecutors. American Journal of Political Science, 46(2), 334-351.

Gostin, L. (1993). Drawing a Line between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying. Journal of Law, Medicine, & Ethics, 21(1), 94-101.

Guglielmo, W. J. (2002). Assisted Suicide? Pain Control? Where’s the line? Medical Economics, October 11, 2002, 48-49, 53-54, 59.

Hawryluck, L. (2002). Nueromuscular Blockers – A Means of Palliation? Journal of Medical Ethics, 28, 170-172.

Hill, C.S., Jr. (1993). The Negative Influence of Licensing and Disciplinary Boards and Drug Enforcement Agencies on Pain Treatment with Opioid Analgesics. Journal of Pharmaceutical Care in Pain & Symptom Control, 1(1), 3-62.

22

Hillyard, D., & Dombrink, J. (2001). Dying Right: The Death with Dignity Movement. New York: Routledge.

Hoover, E. (1997). Physician Disciplines for Active Euthanasia. The Oregonian, Portland, Oregon, July 18, 1997, A1.

Humphry, D. (2004). The Good Euthanasia Guide 2004. Oregon: Norris Lane Press.

Humphry, D., & Clement, M. (2000). Freedom to Die: People, Politics, and the Right-to-Die Movement. New York: St. Martin=s Griffin.

Jackson, R.H. (1940). The Federal Prosecutor. Journal of the American Judicature Society, 24, 18-20.

Jacoby, J.E. (1980). The American Prosecutor: A Search for Identity. Lexington, MA: Lexington Books.

Jacoby, J.E. (1979). The Charging Policies of Prosecutors. In W.F. McDonald (Ed.), The Prosecutor (pp.75-95). Beverly Hills, CA: Sage Publications.

Jesilow, P.D., Pontell, H.N. & Geis, G. (1985). Medical Criminals: Physicians and White-Collar Offenses. Justice Quarterly, 2, 149-65.

Kaplan, K.J., & McKeon, K. (1999). Michigan versus Kevorkian. OMEGA, 40(1), 271-274.

Kinnell, H.G. (2000). Serial homicide by doctors: Shipman in perspective. BMJ, 321, 1594-1597.

Kirkland, L. (1994). Nueromuscular Paralysis and Withdrawal of Mechanical Ventilation. Journal of Clinical Ethics, 5(1), 38-39.

Liederbach, J., Cullen, F.T., Sundt, J.L., & Geis, G. (2001). “The Criminalization of Physician Violence: Social Control in Transformation,” Justice Quarterly, 18(1), 141-170.

Meier, D., Emmons, C., Wallenstein, S., Quill, T., Morrison, S.R., & Cassel, C.K. (1998). A National Survey of Physician-Assisted Suicide and Euthanasia in the United States. NEJM, 338(17), 1193-1201.

Meisel, A., & Cerminara, K.L. (2004). The Right to Die (3rd Ed.). New York: Aspen Publishers.

Meisel, A., Jernigan, J.C., & Youngner, S.J. (1999). Prosecutors and End-of-Life Decision Making. Archives of Internal Medicine, 159, 1089-1095

23

Meisel, A., Snyder, L., & Quill, T. (2000). Seven Legal Barriers to End-Of-Life Care: Myths, Realities, and Grains of Truth. JAMA, 284(19), 2495-2501.

Miller, F.W. (1969). Prosecution: The Decision to Charge a Suspect with a Crime. The Report of the American Bar Foundation’s Survey of the Administration of Criminal Justice in the United States. Boston, MA: Little, Brown and Company.

Orentlicher, D., & Caplan, A. (2000). The Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care. JAMA, 283(2), 255-258.

Perkin, R.M., & Resnik, D.B. (2002). The Agony of Agonal Respiration: Is the Last Gasp Necessary? Journal of Medical Ethics, 28, 164-170.

Quill, T.E. (2004). Dying and Decision Making – Evolution of End-of-Life Options. NEJM, 350(20), 2029-2032.

Schwartz, J. (1999). “Health-Criminal Law-Palliative Care in Nursing Homes-Use of Opioids for Pain Management,” (http://www.oag.state.md.us/Healthpol/pain.pdf).

Shapiro, R.S. (1994). Liability Issues in the Management of Pain. Journal of Pain and Symptom Management, 9 (3), 146-152.

Spohn, C., Beichner, D., & Davis-Frenzel, E. (2001). Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the “Gateway to Justice.” Social Problems, 48(2), 206-235.

Thomas, C.W., & Fitch, W.A. (1976). Prosecutorial Decision Making. American Criminal Law Review, 13, 507-559.

Truog, R.D., Burns, J.P., Mitchell, C., Johnson, & J., Robinson, W. (2000). Pharmacologic Paralysis and Withdrawal of Mechanical Ventilation at the End of Life. NEJM, 342(7), 508-511.

Truog, R.D., & Burns, J.P. (1994). To breathe or not to breathe. Journal of Clinical Ethics, 5(1), 39-41.

Zalman, M. (2001). Criminal Procedure: Constitution and Society (3rd Ed.). New Jersey: Pearson Education, Inc.

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Appendix

Appendix A. How significant would the following factors be in your decision to charge a doctor with an offense relating to the prescribing of drugs?

NotImportant

0

SomewhatImportant

1

Important

2

VeryImportant

3

A. Involvement of State Medical Board

The Board is currently investigating the case

10.8% 30.1% 36.1% 22.9%

The Board investigated and handled the matter appropriately

9.6% 14.5% 34.9% 41%

The Board investigated the matter and failed to take appropriate action

13.3% 20.5% 30.1% 36.1%

B. Involvement of other agencies or jurisdictionsCivil suit has already been filed against defendant

57.8% 30.1% 8.4% 3.6%

Federal criminal or regulatory action has already been filed against defendant

4.8% 16.9% 39.8% 38.6%

Police actively seek prosecution of defendant

3.6% 36.1% 47% 13.3%

C. Case and Community Factors

Case is extremely complex 22.2% 29.6% 38.3% 9.9%

Victim or family’s preference regarding prosecution

2.4% 26.8% 54.9% 15.9%

Scarcity of physicians in area 84.3% 7.2% 4.8% 3.6%

Evidence that doctor emphasized his own financial interests over patient care

3.6% 3.6% 36.1% 56.6%

Amount of media attention on the case 45.7% 46.9% 6.2% 1.2%

Lack of public support for prosecuting defendant

25.6% 51.2% 18.3% 4.9%

Possible adverse consequences to your career

63.4% 28.0% 8.5 0%

Doctor’s conduct was motivated by compassion

2.4% 30.5% 43.9% 23.2%

Prosecution would likely deter future conduct by doctors

3.7% 22.2% 55.6% 18.5%

Doctor is not a pain specialist (e.g., General practitioner)

28.7% 43.8% 23.8% 3.8%

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Appendix B [numbering from original questionnaire].

14. Had the matter NOT been reported to the state medical board, what is the likelihood that you would have initially referred the matter to the state medical board in lieu of criminal investigation or prosecution?

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%No Likelihood

Extremely Likely

15. Based on the scenario, do you believe that an offense(s) has been committed?

Yes No Don’t know

If YES, what would the offense(s) be?

_____________________________________________________

16. If an offense(s) has been committed, what is the likelihood that you would actually pursue prosecution?

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%No Likelihood

Extremely Likely

I do NOT think an offense has been committed.

Your Opinions Concerning Doctor-Assisted Death

18. Do you personally believe that physician-administered lethal injection may be morally justified in some circumstances, even if it is illegal?

Yes No Not sure

19. Do you personally believe that life should be maintained for as long as possible, by whatever means possible, in all circumstances?

Yes No Not sure

26

27

Tables

Table 1. Respondent Characteristics

States and Response Rates Connecticut 8/13 (61.54 %)Maryland 17/24 (70.83 %)Oregon 24/34 (70.59 %)*Washington 35/39 (89.74 %)

Total Response Rate 84/110 (76.36 %)

Official Position of RespondentsChief Prosecutors 67 (79.8%)Senior Deputy Prosecutors 17 (20.2%)

Number of Years in Present PositionRange 1-28 yearsMean 9.69 yearsMedian 7.0 years

Elected or Appointed Elected 61 (72.6%)Appointed 23 (27.4%)

Party Affiliation (Self-identified, not all positions partisan)Democrat 36 (42.9%)Republican 29 (34.5%)Independent 13 (15.5%)Other 2 ( 2.4%)Not Provided 4 ( 4.8%)

Number of Prosecutors in OfficeRange 1-250 prosecutorsMean 18Median 8Mode 2

Annual Felony CaseloadRange 20-12,000 casesMean 1299Median 500

Population of JurisdictionsRange 1,934-1,737,034Mean 171,802Median 75,328Number of jurisdictions under 100,000 residents 49 (49/84=58.3%)

* Oregon has 36 counties; however, at the time of the survey two district attorneys serving rural jurisdictions in one-person offices left office.

Table 1 reprinted with permission of publisher.

28

Table # 2

VignetteAt about 4:30 a.m., a 78-year-old woman called 9-1-1 requesting assistance. The woman soon collapsed and was rushed to a local hospital where it was determined that a blood vessel had burst in her brain, a condition that is almost always fatal. Medical tests were performed and a neurosurgeon advised the emergency room doctor that the patient would not benefit from surgery. The patient’s primary physician, Doctor D, was notified and arrived. Doctor D then consulted with both the emergency room doctor and the neurosurgeon, at which time it was determined that the patient’s death was imminent. The patient had earlier communicated to both her daughter and Dr. D that in the event she became terminally ill, she did not want her life prolonged through artificial or extraordinary means. In light of the above, Dr. D directed that all life support be discontinued and that the patient be provided with comfort measures. Later attempts to deactivate the patient’s pacemaker, arguably an artificial means of life support, were not successful. An hour later, one of the treating nurses relayed the family’s concerns that the patient was suffering needlessly and that “sometimes Succinylcholine is used in these situations.” Succinylcholine is a skeletal muscle relaxant that causes paralysis of the muscles, including respiratory muscles, rendering the patient unable to breathe. Because Dr. D had removed the patient’s breathing apparatus earlier, Dr. D knew that administration of Succinylcholine without ventilation would result in death. Dr. D subsequently injected the patient, and the patient died. It is undisputed that the administration of Succinylcholine hastened the death of the patient and experts are willing to testify that under the circumstances, the actions taken by Dr. D amounted to “active euthanasia.” The state medical board investigated the incident and handed down the following discipline: 1) formal reprimand, 2) suspended his license to practice medicine for 60 days, and 3) ordered to pay the costs of the disciplinary proceedings. In addition to media coverage, you have received fourteen-hundred signatures from local residents requesting that the doctor NOT be prosecuted.

29

Table 3. Had the matter NOT been reported to the state medical board, what is the likelihood that you would have initially referred the matter to the state medical board in lieu of investigation or prosecution? [Scenario #4- All four states]

FrequencyValid

PercentCumulative

Percent0% 9 11.1 11.1

10% 5 6.2 17.320% 11 13.6 30.930% 4 4.9 35.840% 1 1.2 37.050% 11 13.6 50.660% 1 1.2 51.970% 11 13.6 65.480% 10 12.3 77.890% 8 9.9 87.7

100% 10 12.3 100.0Subtotal 81Missing 3 - -

TOTAL 84 100.0 100.0

30

Table 4. Based on the scenario, do you believe that an offense(s) has been committed? [Scenario #4 – All four states]

Response FrequencyValid

PercentCumulative

PercentYes 45 54.9 54.9No 16 19.5 74.4

Don’t Know 21 25.6 100.0Subtotal 82Missing 2 - -TOTAL 84 100.0 100.0

If Yes, what would the offense(s) be?Likely Offense

Homicide/Murder 28 Endangerment 1Manslaughter 11 Drug Violation 1

Assist/Promote Suicide

5 Regulatory violation

1

31

Table 5. Do you personally believe that physician-administered lethal injection may be morally justified in some circumstances, even if it is illegal?

Response FrequencyValid

PercentCumulative

PercentYes 38 47.5 47.5No 26 32.5 80.00

Not sure 16 20.0 100.0Subtotal 80 100.0 -Missing 2 - -TOTAL 82 100.0 100.00

32

Table 6. Do you personally believe that life should be maintained for as long as possible, by whatever means possible, in all circumstances?

Response FrequencyValid

PercentCumulative

PercentYes 2 2.5 2.5No 70 86.4 88.9

Not sure 9 11.1 100.0Subtotal 81 100.00 -Missing 3 - -TOTAL 84 100.0 100.0

33