Sunday, July 1, 2012

False & Misleading "Aid in dying" Letter

Below, a letter to physicians responding to a prior "false and misleading" letter claiming that assisted suicide is legal in Montana. To see a hard copy of this letter as sent, click here.

Dear Physician:

I represent Montanans Against Assisted Suicide & For Living with Dignity.  You may have received a letter from Compassion & Choices, formerly known as the Hemlock Society, dated June 5, 2012.  The letter claims that assisted suicide, referred to as "aid in dying," is legal under the Baxter decision issued by the Montana Supreme Court on December 31, 2009.  This is untrue.  I urge you to read the materials below or contact your own counsel for advice regarding the court's decision in Baxter.

The letter states: “Physicians [under Baxter] can provide prescriptions to such patients without fear that doing so could give rise to criminal or disciplinary sanction."  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."

You may also be interested in 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."[1]

Please note that the "aid in dying" 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). 

For another example, see William Dotinga, “Grim Complaint Against Kaiser Hospital,” at http ://   This case is relevant to Baxter given that patient consent is the linchpin to  Baxter's defense to prosecution.  Moreover, even if a doctor avoids prosecution, there is civil liability. 

Finally, the letter also omits that the Montana Medical Board’s position statement is subject to ongoing challenge by my client.  I encourage you to review the information submitted to the Board on this issue and the information found at my client's website describing why legalization of assisted suicide would be a recipe for elder abuse.  See

Please contact me with any questions or concerns.  

Yours truly,

Hinshaw Law Firm, PLLC


By:  Craig D. Charlton

[1]  “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010, at