Sara Myers et al., Plaintiffs, Eric A. Seiff, et al., Appellants,v.Eric Schneiderman,, Respondent, et al., Defendants.BriefN.Y.May 30, 2017APL-2016-00129 New York County Clerk’s Index No. 151162/15 Court of Appeals of the State of New York SARA MYERS and STEVE GOLDENBERG, Plaintiffs, ERIC A. SEIFF, HOWARD GROSSMAN, M.D., SAMUEL C. KLAGSBRUN, M.D., TIMOTHY E. QUILL, M.D., JUDITH K. SCHWARTZ, PHD., CHARLES A. THORNTON, M.D. and END OF LIFE CHOICES NEW YORK, Plaintiffs-Appellants, – against – ERIC SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, Defendant-Respondent, – and – JANET DIFIORE, in her official capacity as District Attorney of Westchester County, SANDRA DOORLEY, in her official capacity as District Attorney of Monroe County, KAREN HEGGEN, in her official capacity as District Attorney of Saratoga County, ROBERT JOHNSON, in his official capacity as District Attorney of Bronx County and CYRUS R. VANCE, JR., in his official capacity as District Attorney of New York County, Defendants. BRIEF OF THE 39 PHYSICIANS AMICI CURIAE IN SUPPORT OF DEFENDANT-RESPONDENT ROBERT E. CROTTY KELLEY DRYE & WARREN LLP Attorneys for The 37 Physicians Amici Curiae 101 Park Avenue New York, New York 10178 Tel.: (212) 808-7800 Fax: (212) 808-7897 December 27, 2016 TABLE OF CONTENTS ISSUE PRESENTED ............................................................................................... 1 PRELIMINARY STATEMENT .............................................................................. ! INTEREST OF THE AMICI CURIAE ................................................................... 1 POINT I. AID IN DYING IS ASSISTED SUICIDE .......................................... 3 POINT II. PHYSICIAN-ASSISTED SUICIDE IS NOT ACCEPTED IN THE MEDICAL PROFESSION ......................................................... 4 POINT III. PHYSICIAN-ASSISTED SUICIDE IS CONTRARY TO THE PHYSICIAN'S PROFESSIONAL RELATIONSHIP WITH THE PATIENT .................................................................................... 8 POINT IV. PALLIATIVE CARE CAN EFFECTIVELY TREAT TERMINALLY ILL PATIENTS WITHOUT INTENTIONALLY HASTENING THEIR DEATH ........................ 14 POINT V. PHYSICIANS CANNOT ACCURATELY DIAGNOSE AND PROGNOSTICATE DISEASE ............................................... 1 7 POINT VI. REVERSAL WOULD PROVIDE NO SAFEGUARDS AGAINST ABUSE AND WOULD EFFECTIVELY ALLOW PHYSICIANS TO MAKE LIFE AND DEATH DECISIONS WITHOUT ANY STANDARDS FORDOING S0 ......................... 19 CONCLUSION ...................................................................................................... 20 CERTIFICATION .................................................................................................. 22 NYOl\CrotR\4316339.7 TABLE OF AUTHORITIES Page(s) Cases Myers et al v. Schneiderman et al., NY Slip Op. 03457 (1st Dep't, May 3, 20 16) ...................................................... l Statutes N.Y. Penal Law §§ 120.30 and 125.15 ................................................................. 1, 3 N.Y. Penal Law§§ 175.30 and 175.35 ................................................................... 14 N.Y. Public Health Law§ 2997-c ........................................................................... 14 N.Y. Public Health Law, §4102(1) .......................................................................... 14 Other Authorities "Always Care, Never Kill: How Physician Assisted Suicide Endangers the Weak, Corrupts Medicine, Compromises the Family and Violates Human Dignity and Equality", Ryan Andersen, Heritage Org., March 24, 2015 ............................................................................ 8 American Medical Assn's Principles of Medical Ethics,§ 5.7, "Ph . . A . d s . 'd II 4 ys1c1an ss1ste u1c1 e .............................................................................. . Benjamin N. Cardozo, Selected Writings, "What Medicine Can Do for Law" at 388 .......................................................................................................... 9 "Clinical Practice Guidelines for Quality Palliative Cases" Third Ed., National Consensus Project for Quality: Palliative Cases 2013 ........................ 15 Medical Society of the State of New York Policy 95.989 "Physician Assisted Suicide and Euthanasia" ........................................................................ 5 New York State Hospice and Palliative Care Assn 2015 Memorandum ofOpp ................................................................................................................... 5 New York State Task Force on Life and the Law, When Death Is Sought Assisted Suicide and Euthanasia in the Medical Context 1994; and 1997 Supplement.. ............................................................................... 6 NYOl\CrotR\4316339.7 "Professional Education in Palliative and End-of-Life Care for Physicians, Nurses, and Social Workers" National Center for Biotechnology Information, 2001, Hellen Gelband ........................................... 18 Psychiatry and Ethics, Maurice Levine ................................................................................................... 10 Scientific American, "Doctors Poorly Trained in End of Life Care, But That Can Change," June 1, 2015 ................................................................. 16 "Training the Next Generation of Doctors in Palliative Care," Academic Medicine, William H. Frist, MD; Martha K. Presley, MD, J.D.; March 2015, Vol. 90, Issue 3 at 268-271 .......................................... 19 U.K. Daily Mail (http://www.dailymail.co.uk/newsarticle- 3 980608/Dutch-euthanasia-law-used-kill-alcoholic-41-decided- death-way-escape-problems.html) ..................................................................... 10 NYOI\CrotR\4316339.7 11 ISSUE PRESENTED Was the Appellate Division's May 3, 2016 Decision and Order correctly decided? PRELIMINARY STATEMENT The May 3, 2016 Decision and Order of the Appellate Division, First Department, 2016 NY Slip Op. 03457 should be affirmed. New York State Penal Law§§ 120.30 and 125.15 clearly covers so-called "aid in dying" which- as the Appellate Division held- is no different from physician-assisted suicide. There is no possible reinterpretation of the statutes that could accommodate physician- assisted-suicide - which Plaintiffs refer to euphemistically as "aid in dying". Moreover, physician assisted suicide is deleterious to the physician-patient relationship and its basis in healing- not killing -the patient; is contrary to the long established practice of medicine, would stifle the continuing development of palliative care which is able to treat even the severest pain; and is based on a physician competence that does not exist. Finally, reversal would leave physicians and patients with few or no standards on how to proceed in end-of-life situations. INTEREST OF THE AMICI CURIAE The Amici Curiae, Michael R. Aiello, MD; J. Barasch, MD; Michael Brescia, MD; Robert Brescia, MD; Stanley A. Bukowski, MD; Stanley L. Bukowski, MD; Paul Carpentier, MD; Christopher Comfort, MD; Karen Dalton, MD; Joseph Dutkowsky, MD; Thomas Flaim, MD; David Kim, MD; Janet Kim, MD; Alice Ko, MD, FACOG; Donald W. Landry, MD, PhD; Matthew Lynch, NYO l \CrotR\4316339. 7 MD; Matthew Mack, MD; Miguel Martillo, MD; Michael Martinelli, MD; Gerald McMahon, MD; James Mostrom, MD; George Michael Mussalli, MD; Ann Nolte, MD; John O'Brien, MD; Anthony S. Oliva, MD FACS; Elvira Parravicini, MD; Jan Patterson, MD; Louise A. Prince, MD, FACEP; Steven E. Quatela, MD, PhD; T. Donald Rapello, MD; Cynthia Renauld-Lansing, DO; Gloria Roetzer, MD; Elissa Sanchez-Speach, MD; Brian Scully, MD; David Speach, MD; Matthew Y. Suh, MD, MPH; Frank Thomas, MD; Gregory Weston, MD, Sally White, MD, are 39 physicians all of whom are licensed to practice medicine New York State. Their practices range from palliative care in hospices to oncology, cardiology, geriatrics, psychiatry, internal medicine, anesthesiology, emergency medicine, family practice, obstetrics and gynecology, hepatobiliary and pancreas surgery, allergy- immunology, infectious diseases and others. All the Amici have a professional and ethical interest in seeing that the physician-patient relationship remains dedicated (1) to healing the patient and treatment of pain instead of ending life, (2) to the benefits of palliative care, and (3) to the further development of physicians' education and training in comforting the sick and supporting the family near the end of life. Each of the amici either have or will face end of life issues with their patients and has a professional and ethical interest in this matter and in the affirmation of the Appellate Division's Decision and Order. NYOI\CrotR\43 16339.7 2 POINT I. AID IN DYING IS ASSISTED SUICIDE Advocates of physician-assisted suicide claim that "aid in dying" is not physician assisted suicide. The Appellate Division, however, in a unanimous opinion, expressly held that "aid in dying" - "whatever label one puts on it" - is clearly within the express wording ofthe Penal Law Sections 120.30 and 125.15: The word "suicide" has a straight forward meaning and a dictionary is hardly necessary to construe the thrust of Penal Law Sections 120.30 and 125.15. It is traditionally defined as "the act or instance of taking one's own life voluntarily and intentionally," especially "by a person of years of discretion and of sound mind" (Miriam Webster's Collegiate Dictionary [11th ed. 2003]). Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description since there is a direction causative link between the medication proposed to be administered by plaintiff physicians and the patients' demise. 2016 NY Slip Op. 03457 at 9-10. Every physician - certainly all of the amici - understand what a prescribed medication is intended to do. Prescribing lethal doses of medication is intended to assist the patient in committing suicide. Thus, the point of prescribing the lethal dosage is to allow the patient to kill herself. It is an absurdity to suggest that this is not assisting a suicide. NYOI\CrotR\4316339.7 3 POINT II. PHYSICIAN-ASSISTED SUICIDE IS NOT ACCEPTED IN THE MEDICAL PROFESSION Plaintiffs also attempt to create an impression that physician-assisted suicide is broadly accepted or is the coming thing in treating patients at the end of their lives. Again, this is not so. And, certainly it is not so in New York State. The American Medical Association's Principles of Medical Ethics, adopted in 2016, expressly rejects physician assisted suicide: 5. 7 Physician Assisted Suicide Physician assisted suicide occurs when a physician facilitates a patient's death by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g., the physician provides sleeping pills and information about the lethal dose, while aware that the patients may commit suicide.) It is understandable, though tragic that some patients in extreme duress - such as those suffering from a terminal, painful, debilitating illness - may come to decide that death is preferable to life. However, permitting physicians to engage in assisted suicide would ultimately cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal ISSUeS. * * * * The Medical Society ofthe State ofNew York adopted the same policy in 2015: ... Despite shifts in favor of physician-assisted suicide as evidenced by its legality in an increasing number of NYOI\CrotR\4316339.7 4 states, physician-assisted suicide and euthanasia have not been part of the normative practice of modern medicine. Compelling arguments have not been made for medicine to change its footing and to incorporate the active shortening of life into the norms of medical practice. Although relief of suffering has always been a fundamental duty in medical practice, relief of suffering through shortening of life has not. Moreover, the social and societal implications of such a fundamental change cannot be fully contemplated. MSSNY supports all appropriate efforts to promote patient autonomy, promote patient dignity, and to relieve suffering associated with severe and advance diseases. Physicians should not perform euthanasia or participate in assisted suicide. MSSNY Policy 95.989 "Physician Assisted Suicide and Euthanasia". The New York State Hospice and Palliative Care Association's March 2015 Memorandum of Opposition to the so-called "Death with Dignity" Bills (A. 2129, A. 5261, S.3685)- which would have legalized physician assisted suicide -also rejected the legalization of physician-assisted-suicide. Referring to such bills as "Death with Dignity" is a misnomer. Concerted efforts to improve access to palliative and hospice care could positively impact the end of life for thousands of New Yorkers and their families, and we believe that this is where public policy should be focused. The goal of hospice care is to provide people at end of life relief from the things they fear most: uncontrolled symptoms, loneliness and being a burden to those they love. Access to and utilization of quality hospice care offers people at end of life the pain and symptom control, psycho-social and spiritual support they need and also provides support to those they love. Physician-assisted death falls outside the scope of the acute pain and symptom management and supportive care that hospice and palliative care promote at the end of life. NYO l \CrotR\4316339.7 5 The New York State Task Force on Life and the Law, in 1994, published its 217 page report: "When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context." The Task Force recognized that The Members of the Task Force hold different views about the ethical acceptability of assisted suicide and euthanasia. Yet, the Task Force unanimously concluded that: Despite these differences, the Task Force members unanimously recommend that existing law should not be changed to permit these practices. Under the heading "The Social Risks of Legalization", the Task Force listed many concerns: 1. " ... assisted suicide and euthanasia will be practiced through the prism of social inequality and bias that characterizes the delivery of services in all segments of our society, including health care. The practices will pose the greatest risks to those who are poor, elderly, members of a minority group or without access to good d. 1 " me 1ca care ... 2. "The growing concern about health care costs increases the risk presented by legalizing assisted suicide and euthanasia." 3. "The clinical safeguards that have been proposed to prevent abuse and errors would not be realized in many cases. For example, most doctors do not have a long standing relationship with their patients or information about the complex personal factors relevant to evaluating a request for suicide assistance ... " 4. The focus "on dramatic individual cases ... obscures the impact of what it would mean for the state to sanction assisted suicide ... under the auspices of the medical community." NYOI \CrotR\4316339.7 6 5. " ... once patients are confronted with illness, continued life often becomes more precious; given access to appropriate relief from pain and other debilitating symptoms, many of those who consider a suicide during the course of a terminal illness abandon their desire for a quicker death in favor of a longer life made tolerable with effective treatment." 6. " ... Most doctors, however, are not trained to diagnose depression, especially in terminal cases such as patients who are terminally ill. Even if diagnosed depression is often not treated. In elderly patients as well as the terminally and chronically ill, depression is grossly underdiagnosed and undertreated." 7. "If assisted suicide and euthanasia are legalized, it will blunt our perception of what it means for one individual to assist another to commit suicide or to take another person's life. Over time as the practices are incorporated into the standard arsenal of medical treatments, the sense of gravity about the practices would dissipate." 8. " ... As long as the [assisted suicide] policies hinge on notions of pain and suffering, they are uncontainable; neither pain nor suffering can be gauged objectively, nor are they subject to the kind of judgments needed to fashion coherent public policy ... " New York State Task Force on Life and the Law, at 4-14. See also Supplement to Report, April 1997. None of the "Social Risks of Legalization" recognized by the Task Force have been ameliorated and the Task Force has not had to revisit its Report. As these ethical and social findings affirm, the foundation of the medical professions is solidarity with the sick, especially the terminally ill. Physicians are trained to heal, not to kill, or assist in suicide. NYO 1 \CrotR\4316339.7 7 POINT III. PHYSICIAN-ASSISTED SUICIDE IS CONTRARY TO THE PHYSICIAN'S PROFESSIONAL RELATIONSHIP WITH THE PATIENT Medicine is not simply prescribing medications and performing surgeries, much less simply acceding to a patient's request to assist in suicide. Suicide and physician-assisted-suicide are not patient self-help measures to be engaged in by physicians at the request of a patient. Rather, medicine treats the patient as a living person. The physician-patient relationship is based on the professional duty of the physician to attempt to heal the patient, including treatment of the patient's pain and suffering. It is inconsistent with that duty to assist the patient to end her life, rather than to treat the malady or pain. A doctor's professional duty, therefore, is not met- indeed, cannot be met- by simply writing prescriptions pursuant to a patient's demand any more than a lawyer meets her professional duty by doing something only because the client insists on it. See, the AMA's Principals ofMedical Ethics 5.7 Physician Assisted Suicide, 2016, supra; see, also "Always Care, Never Kill: How Physician Assisted Suicide Endangers the Weak, Corrupts Medicine, Compromises the Family and Violates Human Dignity and Equality" By Ryan T. Andersen, Heritage. Org., March 24, 2015. So-called "aid in dying," where "aid in dying" is in fact helping the patient to commit suicide, is not new. It was called euthanasia and, until recently, euthanasia and physician-assisted suicide have been rejected. It is counterintuitive, NYO I \CrotR\4316339. 7 8 at least, that in the present time of ever increasing medications and procedures to aid in the healing practice, society seeks to use "physician-assisted suicide" as a "healing" method; but, in times past, when such currently available medications and procedures could not have even been dreamed of, euthanasia was rejected as contrary to the healing practice. In an address before the New York Academy of Medicine on November I, 1928, Benjamin Cardozo said: Every now and then there crops up in popular journals a discussion of the problem of euthanasia. The query is propounded whether the privilege should be accorded to a physician of putting a patient painlessly out of the world when there is an incurable disease, agonizing suffering, and a request by the sufferer for merciful release. No such privilege is known to our law, which shrinks away from any abbreviation of the span of life, shaping its policy in that regard partly under the dominance of the precepts of religion and partly in the fear of error or abuse. Just as a life may not be so shortened, so its value must be held as equal to that of any other, the mightiest or the lowliest. .. the ugly and the beautiful, the wise and the foolish, the young and the old, the gay and the wretched - outstretched before you in the great democracy of suffering. Benjamin N. Cardozo, Selected Writings, "What Medicine Can Do for Law" at 388. The distinction between the practice of healing and that of killing can be traced to the ancient Greeks and the Hippocratic Oath, originally written in the late fifth century BCE. As Margaret Mead, the world renowned anthropologist, wrote in 1961 : NYOI\CrotR\4316339.7 9 was [with the Hippocratic Oath] For the first time in our tradition there was a complete separation between killing and curing. Throughout the primitive world the doctor and the sorcerer tended to be the same person. He with power to kill had the power to cure, including specially the undoing of his own killing activities. He who had the power to cure would necessarily also be able to kill. With the Greeks, the distinction was made clear. One profession, the followers of Asclepius, was to be dedicated completely to life under all circumstances, regardless of rank, age or intellect -the life of a slave, the life of the Emperor, the life of a foreign man, the life of a defective child. Doctor Mead believed that this distinction between healing and killing a priceless possession which we cannot afford to tarnish, but society always is attempting to make the physician into a killer- to kill the defective child at birth, to leave sleeping pills beside the bed of the cancer patient . . . . It is the duty of society to protect the physician from such requests. quoted by Maurice Levine in Psychiatry and Ethics, pp. 324-325, 327, 1972 from a personal communication, 1961. This "duty of society" is, in essence, in solidarity with the medical profession, just as the medical professions have a duty to be in solidarity with the sick and mentally infirm. Experience shows, however, that once physician-assisted-suicide is allowed, it is difficult to stop it from spreading to unintended uses. For example. A 28 November 2016 article in the U.K. Daily Mail (http://www.dailymail.co.uk/newsarticle-3980608/Dutch-euthanasia-law-used-kill- alcoholic-41-decided-death-way-escape-problems.html) reported that a 41 year old NYOI\CrotR\4316339.7 10 man "ended his life by fatal injection [administered by a doctor] rather than carry on living as an alcoholic in a radical new extension of Hollands's euthanasia regime ... which killed more than 5,500 people last year." The article noted that "the scope of the mercy killing law, introduced 16 years ago to apply only to those in unbearable suffering, has already widened so that those who die include many whose problems include 'social isolation and loneliness'." Supporters of physician-assisted-suicide claim a distinction between ( 1) the physician administering a lethal drug and (2) the physician making the lethal drug available for the patient to self-administer if and when the patient decides to do so. But, this distinction, even if it were meaningful, makes matters worse. The patient may be screened and judged competent when the prescription is written but once the patient has the lethal drug, the patient is left on her own. Thus, any change in symptoms or pain- which could be treated- could trigger the suicide; likewise, family intervention- well-meaning or not- could trigger the suicide; so could a patient's understanding- or misunderstanding- of the cost of, and payment for, continued palliative care. More cynically, health care insurers may benefit from aid in dying measures by avoiding the expense of chemotherapy treatments or palliative care. In short, once the patient has the drugs, she is wholly unprotected by any medical diagnosis, treatment, or even attendance by a physician. She is left to her own devices to determine whether she should commit suicide by taking the lethal drugs prescribed by a doctor who may very well have NYO!\CrotR\4316339.7 11 not seen the patient after writing the prescription for the lethal drug. Finally, the patient may not administer the lethal dosage properly, or may want to reverse the process, or for some other reason, the suicide may not proceed as expected. In such a case, the patient will have no medical help and there is no guarantee that the suicide would be "peaceful." The so-called safeguards in physician-assisted-suicide laws in other states, including having physicians determine whether a patient's illness is terminal, whether the patient is competent, and whether "aid in dying" is appropriate for a patient are illusory - not only because they all are isolated in time from the patient's decision to use the lethal drug dose- but also because many times there is no longstanding or ongoing physician-patient relationship. In fact, there may very likely be no prior physician-patient relationship at all. Many times, the treating physician will be unwilling to prescribe a lethal drug dose because the physician believes the patient's pain can be treated, the patient is depressed, or because the physician believes such a prescription is unethical. What happens next is that the patient seeks out a physician who is willing to write the prescription; indeed, the patient may have to contact two or maybe three physicians before finding one who will write the prescription. Thus, there is no guarantee that the prescribing physician would have any relationship with the patient or her family and, unlike any other physician-patient relationship, the patient and the physician NYO I \CrotR\4316339. 7 12 are not directed toward healing or treating the patient's symptoms but rather ending the patient's life. This failure of the physician-patient relationship goes to the core of why aid in dying is not supportable by the normative standards of medicine: [physician assisted suicide] changes the culture in which medicine is practiced. It corrupts the profession of medicine by permitting the tools of healing to be used as techniques for killing. By the same token, PAS [physician-assisted-suicide] threatens to fundamentally distort the doctor-patient relationship because it reduces patients' trust of doctors and doctors' undivided commitment to the life and health of their patients. "Always Care Never Kill: How Physician Assisted Suicide Endangers the Weak, Corrupts Medicine, Compromises the Family and Violates Human Dignity and Equality," supra at 2. Thus, physicians should make professional decisions based on a healing approach to medicine. Focus on individual dramatic cases is not the appropriate basis for broad policy making. (See the affidavits of Doctors Kress, Morris and Quill, Record on Appeal.) As the New York Task Force found, the "focus on dramatic individual cases ... obscures the impact of what it would mean for the state to sanction assisted suicide .... " Finally, physician-assisted-suicide may- and has- led to abuses in assigning the cause of death on the patient's death certificate. One of the physicians who submitted an affidavit in opposition to the motion to dismiss - Dr. Morris - states that after her patient took the legal drugs the physician had NYOI\CrotR\4316339.7 13 prescribed, the physician reported the cause of death as cancer, not the lethal drugs or suicide. This physician did not consider the "death to be any sort of a 'suicide"' because the patient "was fully mentally-competent." Affidavit at~ 11. Apparently, fully mentally-competent people are- by this physician's definitions- unable to commit suicide. Had this patient been killed in an automobile accident, it is unlikely that anyone would have thought -· much less put on the death certificate - that the cause of death was cancer. Such abuses should not be countenanced. See N.Y. Public Health Law, §41 02(1 ). In fact, filing a false death certificate may be a crime in New York State. N.Y. Penal Law§§ 175.30 and 175.35. POINT IV. PALLIATIVE CARE CAN EFFECTIVELY TREAT TERMINALLY ILL PATIENTS WITHOUT INTENTIONALLY HASTENING THEIR DEATH New York State passed the Palliative Care Information Act effective as ofFebruary 9, 2011. Public Health Law§ 2997-c. Palliative care is defined as "health care treatment ... to prevent or relieve pain and suffering and to enhance the patient's quality of life, including hospice care under miicle forty" of the Public Health Law. Recent studies- and experience- establish that early palliative care to treat terminally ill patients will decrease suffering and prolong life. Indeed, successful palliative care leads- almost inevitably- to the patient's desire to continue living. NYO I \CrotR\4316339. 7 14 As set forth in "Clinical Practice Guidelines for Quality Palliative Cases" Third Ed., National Consensus Project for Quality: Palliative Cases, 2013, at 2 and 3: Today, the initiation of palliative care increasingly begins at the diagnosis of a serious or life threatening illness. Contemporary definitions of palliative care reflect the expansion of care throughout the illness trajectory, with a patient and family centered focus. Palliative care is provided across all health settings including: acute care hospitals, rehabilitation hospitals, ambulatory settings, long term care settings, community programs within home health or hospice organizations, and hospices. Palliative care is delivered by interdisciplinary teams consisting of chaplains, nurses (professional registered nurses such as RN, APRNs and L VNs/LPNs as well as other nursing disciplines such as nursing assistants or aides) physicians, and professional social workers. Other disciplines such as licensed massage therapists, art and music therapists, and child life experts often collaborate with the palliative care team. Palliative care is available to all populations across the life span including neonates, children, and older adults in various settings. Palliative care team members manage pain and other symptoms; facilitate person-centered communication, promote decision making; and coordinate care across settings throughout the disease trajectory. * * * * Palliative care is a dynamic field and evolves in response to patient and family needs and the growing evidence of development and revision of Clinical Practice Guidelines for Quality Palliative Care is accomplished. * * * * The number of hospices continues to grow and palliative care continues to gain momentum reflected in the establishment of palliative care teams at the majority of U.S. hospitals with an increasing presence in ambulatory NYO I \CrotR\4316339.7 15 care settings, nursing homes, and community care programs. An article published in Scientific American, June 1, 2015 "Doctors Poorly Trained in End-of-Life Care, But That Can Change," states "Palliative care has shown its worth, several studies during the 2000's suggested that such care might increase patient survival compared with standard practice, possibly because it reduces patient depression and high risk medical procedures." In a 2010 study in the New England Journal of Medicine, as reported, in "Training the Next Generation of Doctors in Palliative Care," found that "patients receiving palliative care showed 58% less depression, 39% less aggressive end-of-life care and longer median survival times by several months." Academic Medicine, William H. Frist, M.D., Martha K. Presley, M.D., J.D., March 2015; Vol. 90, Issue 3 at 268-271. Palliative care has established that there is no pain - however severe - that cannot be treated. Indeed, "aid in dying" is misleading and not at all descriptive; it could mean provision of assistance, comfort and pain control as in palliative care. Thus, a patient could easily misunderstand what is meant by "aid in dying". Under the Palliative Care Information Act, physicians are required to offer end of life options, information and counseling to terminally ill patients. If physician-assisted suicide is legalized, the amici physicians might be required - against their consciences - to give such information and counseling; also, once NYO I \CrotR\4316339.7 16 again, calling physician-assisted-suicide "aid in dying" could very likely cause confusion for vulnerable, terminally ill patients. In cases where a terminally ill patient has intolerable pain that cannot be treated without sedation, there is palliative sedation. Palliative sedation treats the patient's pain as necessary but only as necessary; the amount of drugs administered will be adjusted up or down with the intention of treating the pain but with no intention of ending life. In some cases, palliative sedation, however, may have the double effect of relieving the pain and incidentally hastening death. Palliative sedation and physician assisted suicide are very different. Palliative sedation intends to treat the patient's pain even though the medications may hasten death. Physician-assisted suicide (or terminal sedation) is giving medication for the sole purpose of causing death. POINTV. PHYSICIANS CANNOT ACCURATELY DIAGNOSE AND PROGNOSTICATE DISEASE As found by the New York Task Force on Life and the Law, not all physicians are trained to diagnose - much less treat depression. When confronted with the complication of a terminal illness, the complexity of the situation is not resolved simply by encouraging or giving the patient the means to end her life. Physician-assisted-suicide is based on the diagnosis and prognosis of a particular disease progression. A prognosis is intended as a guide to patients to help them plan their treatment. But, it is impossible for a physician's prognosis to be NYOI\CrotR\4316339.7 17 accurate enough to ensure a proper application of assisted suicide. In fact, the prognosis for one kind of cancer at a specific advanced stage can range from days to years. Prognostication data usually are accrued over years to measure the effectiveness of treatment, e.g. treatment of cancer. Most data, therefore, do not reflect the most recent developments in treatment. Thus, prognostications of death within a specified time period- say, six months- based on prognostication data, is to use such data for purposes never intended. Accordingly, prognostications regarding a patient's time to live can be extremely misleading. It is too much to ask physicians to take that kind of responsibility and be right all the time - the human body and the human will to live produce too much variation to ever be 100% sure. Moreover, there is a good deal of recent research that has established that doctors are not adequately trained to handle end-of-life care. In "Professional Education in Palliative and End-of-Life Care for Physicians, Nurses, and Social Workers," National Center for Biotechnology Information, 2001, Hellen Gelband, the Director of Policy for the Center for Disease Dynamics, Economics and Policy, at 2 reports that: Most U.S. physicians- oncologists, other specialists, and generalists alike - are not prepared by education or experience to satisfy the palliative care needs of dying cancer patients or even to help them get needed services from other providers. With half a million people dying from cancer each year in this country, this is a stark, but robust finding. NYOI \CrotR\4316339.7 18 In "Training the Next Generation of Doctors in Palliative Care" by William H. Frist, M.D. and Martha K. Presley, M.D., Academic Medicine, March 2015, Vol. 90, Issue 3, the authors report that "currently, U.S. medical schools include an average of just 17 hours of end-of-life care instruction in four years of training. That is the equivalent of one morning lecture a year for four years." See also "An Abstract of the Dissertation of Deborah Jo Corker, Physicians Experience With Death And Dying, a Phenomenological Study (2010). Likewise, Scientific American has also reported that: At present, medical schools spend too little time on the subject of [pain relief and end-of-life care]. Every student should receive extensive grounding on how to treat pain, breathing problems and depression and how to preserve mental faculties. Students should be required to practice interviewing patients and family members about their desires for care - questions that go beyond asking whether patients wish to be kept on a ventilator if their health deteriorates. POINT VI. REVERSAL WOULD PROVIDE NO SAFEGUARDS AGAINST ABUSE AND WOULD EFFECTIVELY ALLOW PHYSICIANS TO MAKE LIFE AND DEATH DECISIONS WITHOUT ANY STANDARDS FOR DOING SO Simply reinterpreting the existing statutes or creating a new right by judicial decision would provide no safeguards or restrictions on physician-assisted- suicide from abuse by doctors, family, third party payers or anyone else. Such a situation could create a myriad of issues for physicians, most likely, resulting in a series of litigations to interpret the new interpretation or the new right. Even if the other problems with physician-assisted-suicide were not dispositive, therefore, NYOl\CrotR\4316339 7 19 proceeding to allow physician-assisted-suicide based on a judicial decision would not be appropriate from a medical point of view. Also, many times physicians handle medical situations based on medical protocols. Different protocols apply to different medical situations. If physician-assisted suicide were legalized by judicial decision, there would be no guidance or protocols or other guidance from the medical profession. CONCLUSION The May 3, 2016 Decision and Order ofthe Appellate Division First Department should be affirmed. NYOl\CrotR\4316339.7 Respectfully submitted, By: _ _,__--'~L¥-...,.-.~~~-- Ro ert E. Crotty, Es 1 0 Park A venue New York, New York 101 (212) 808-7800 rcrotty@kelleydrye.com Attorneys for the Physician Amici Curiae Michael R. Aiello, MD; J. Barasch, MD; Michael Brescia, MD; Robert Brescia, MD; Stanley A. Bukowski, MD; Stanley L. Bukowski, MD; Paul Carpentier, MD; Christopher Comfort, MD; Karen Dalton, MD; Joseph Dutkowsky, MD; Thomas Flaim, MD; David Kim, MD; Janet Kim, MD; Alice Ko, MD, FACOG; Donald W. Landry, MD, PhD; Matthew Lynch, MD; Matthew Mack, MD; Miguel Martillo, MD; Michael Martinelli, MD; Gerald McMahon, MD; James Mostrom, MD; George Michael 20 NYOl \CrotR\4316339.7 Mussalli, MD; Ann Nolte, MD; John O'Brien, MD; Anthony S. Oliva, MD FACS; Elvira Parravicini, MD; Jan Patterson, MD; Louise A. Prince, MD, F ACEP; Steven E. Quatela, MD, PhD; T. Donald Rapello, MD; Cynthia Renauld- Lansing, DO; Gloria Roetzer, MD; Elissa Sanchez-Speach, MD; Brian Scully, MD; David Speach, MD; Matthew Y. Suh, MD, MPH; Frank Thomas, MD; Gregory Weston, MD, Sally White, MD 21 CERTIFICATION I certify pursuant to 500.13( c )(1) that the total word count for all printed text in the body ofthe brief: exclusive of statement ofthe status of the related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this action; and any addendum containing material required by subsection 500.l(h) ofthis Part is 4,847 words. Dated: December 27, 2016 New York, New York NYO I \CrotR\43 l 6339 7 Rob rt E. Crotty 101 ark Avenue New York, New York 1017 (212) 808-7737 Attorneys for Amici Curiae Michael R. Aiello, MD; J. Barasch, MD; Michael Brescia, MD; Robert Brescia, MD; Stanley A. Bukowski, MD; Stanley L. Bukowski, MD; Paul Carpentier, MD; Christopher Comfort, MD; Karen Dalton, MD; Joseph Dutkowsky, MD; Thomas Flaim, MD; David Kim, MD; Janet Kim, MD; Alice Ko, MD, F ACOG; Donald W. Landry, MD, PhD; Matthew Lynch, MD; Matthew Mack, MD; Miguel Martillo, MD; Michael Martinelli, MD; Gerald McMahon, MD; James Mostrom, MD; George Michael Mussalli, MD; Ann Nolte, MD; John O'Brien, MD; Anthony S. Oliva, MD F ACS; Elvira Parravicini, MD; Jan Patterson, MD; Louise A. 22 NYO I \CrotR\4316339. 7 23 Prince, MD, F ACEP; Steven E. Quatela, MD, PhD; T. Donald Rapello, MD; Cynthia Renauld-Lansing, DO; Gloria Roetzer, MD; Elissa Sanchez-Speach, MD; Brian Scully, MD; David Speach, MD; Matthew Y. Suh, MD, MPH; Frank Thomas, MD; Gregory Weston, MD, Sally White, MD