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Kligler v. Healy

Superior Court of Massachusetts, Suffolk

May 25, 2017

Dr. Roger M. Kligler et al. [1]
v.
Maura T. Healy [2] et al. [3] No. 137155

          Filed May 31, 2017

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          Mary K. Ames, Justice of the Superior Court.

         The plaintiffs filed this suit claiming that the Massachusetts Constitution protects the rights of mentally competent terminally ill patients and their doctors to engage in physician assisted suicide. This matter is before the court on the Defendant (DA)'s Motion to Dismiss and the Attorney General's Motion to Dismiss pursuant to Mass.R.Civ.P. 12(b)(6). For the reasons discussed below, the motions are DENIED .

         BACKGROUND

         The following facts are taken from the Complaint and, at this stage, and as the law requires, are assumed to be true for purposes of this motion. Plaintiff Roger Kligler, M.D. is a competent adult who has been diagnosed with Stage 4 Metastatic Castrate-Resistant Prostate Cancer, for which he began treatment in July of 2016. Based on this diagnosis and treatment, his prognosis is a median of twenty-five months to live, with a range of seven to fifty-seven months. Dr. Kligler seeks physician assistance to obtain lethal medication so that he may have the option to end his life peacefully. Plaintiff Alan Steinbach, M.D. is a licensed physician who treats competent terminally ill patients, including Dr. Kligler, with no chance of recovery. Some of these patients have expressed a desire not to live in a state of palliative sedation and are not receiving medical interventions that can be withdrawn. If requested, Dr. Steinbach would provide information and advice to and would write prescriptions for lethal medication to be self-administered by competent terminally ill adults, giving them the option to bring about a quick and peaceful death. However, Dr. Steinbach is deterred from doing so by the fear of criminal prosecution.[4]

         Doctors Kligler and Steinbach filed this action against Attorney General Maura Healey (" the AG") and Cape and Islands District Attorney Michael O'Keefe (" the DA") on October 24, 2016. Count I of the complaint seeks a declaratory judgment that " manslaughter charges are not applicable to physicians who follow a medical standard of care and write a prescription to terminally ill, competent adults who request such aid and may choose to self-administer the medication consistent with the practice of 'Medical Aid in Dying.' " [5]

         Count II alleges that application of the common law of manslaughter to a physician who engages in the conduct described above violates the Massachusetts Constitution because the law is impermissibly vague. Count III alleges that application of the manslaughter law to such a physician impermissibly restricts the constitutional right to privacy, autonomy and bodily integrity, and Count IV alleges that it impermissibly restricts the plaintiffs' fundamental liberty interests. Counts II, III, and IV each request a declaration " that physicians who follow a medical standard of care and write a prescription pursuant to the practice of Medical Aid in Dying to terminally ill, competent adults who request such aid do not violate criminal law, including the common-law crime of manslaughter." Each count also seeks an injunction prohibiting the AG and the DA from prosecuting physicians who engage in that conduct.

         Count V alleges that application of the law of manslaughter to a physician who provides information and advice about Medical Aid in Dying to competent terminally ill patients who voluntarily ingest lethal prescribed medication constitutes an unlawful restraint on the constitutional right to freedom of speech by hindering physicians' ability to discuss medically appropriate end of life treatment options. Count V seeks a declaration that giving such advice is not manslaughter and an injunction prohibiting the AG and the DA from prosecuting physicians who inform, advise, or counsel patients about Medical Aid in Dying.

         Finally, Count VI alleges that application of the manslaughter law to physicians who follow a medical standard of care and provide Medical Aid in Dying violates the constitutional right to the equal protection of law by treating differently terminally ill adults who wish to receive Medical Aid in Dying and terminally ill adults who wish to hasten death by withdrawing life-sustaining treatment. Count VI seeks a declaration that physician assisted suicide is not manslaughter as well as an injunction against prosecution.

         DISCUSSION

         The AG and the DA move to dismiss the complaint on the ground that it fails to state a claim for declaratory relief. When evaluating the legal sufficiency of a complaint pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations of the complaint and draws all reasonable inferences from the complaint in favor of the plaintiff. Coghlin Elec. Contractors, Inc. v. Gilbane Building Co., 472 Mass. 549, 553, 36 N.E.3d 505 (2015); Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). However, the court need not accept as true legal conclusions cast in the form of factual allegations. Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). To survive a motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level. Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011); Iannacchino v. Ford Motor Co., 451 Mass. at 636. The plaintiff's allegations must be more than mere labels and conclusions and must plausibly suggest, not merely be consistent with, an entitlement to relief. Coghlin Elec. Contractors, Inc. v. Gilbane Building Co., 472 Mass. at 553.

         I. LACK OF ACTUAL CONTROVERSY

         The AG and the DA first contend that dismissal of the complaint is required because this Court cannot grant declaratory relief in the absence of an actual controversy. Thus, this Court must decide whether it has jurisdiction to allow the complaint to proceed to a determination on the merits. The Declaratory Judgment Act provides in relevant part:

the superior court . . . may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings . . .

G.L.c. 231A, § 1.[6] Although the purpose of this statute is remedial and it is to be liberally construed, declaratory relief is not available if there is no actual controversy. Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132, 134, 763 N.E.2d 38 (2002). An actual controversy means a real dispute caused by one party's assertion of a legal right in which he has a definite interest and the denial of such assertion by another party with a definite interest in the subject matter, where the attendant circumstances plainly indicate that unless the matter is adjusted, the parties' antagonistic claims will almost immediately and inevitably lead to litigation. Id. ; Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. 142, 144, 379 N.E.2d 1095 (1978). The defendants contend that there is no actual controversy here because no one has threatened to prosecute Dr. Steinbach for manslaughter.

         The application of criminal statutes lies with the prosecutor in the first instance and he cannot be compelled to render advisory opinions at the behest of private citizens. Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. at 147. Accordingly, where the prosecutor has neither threatened the plaintiff with prosecution nor indicated to the plaintiff that he views particular conduct to be in violation of a criminal statute, there is no actual controversy. Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. at 134; Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. at 144-45. Cf. Benefit v. Cambridge, 424 Mass. 918, 921-22, 679 N.E.2d 184 (1997); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

         The complaint in this case does not allege that either the AG or the DA has threatened to prosecute Dr. Steinbach or asserted an interpretation of the manslaughter law that encompasses the conduct in which he wants to engage. Nonetheless, in deciding a Rule 12(b)(6) motion, the court may consider matters of public record and matters of which it may take judicial notice. Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). The court may take judicial notice of a fact that is not subject to reasonable dispute because it can be readily determined from sources whose accuracy cannot reasonably be questioned. Mass.G.Evid. § 201(b)(2) (2016). According to the Cape Cod Times, Cape & Island District Attorney Michael O'Keefe has opined that state law prohibits medically-assisted dying and the resulting charge would be murder.[7] In addition, the New Boston Post reports that O'Keefe has expressed his belief that physician assisted suicide is illegal until the Legislature passes a law telling him otherwise.[8] The court may take judicial notice of the existence and content of a published newspaper article, particularly when the content is not being considered for the truth of the matters reported. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n.13, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Kosilek v. Spencer, 889 F.Supp.2d 190, 215 n.6 (D.Mass. 2012), rev'd on merits of claim, 774 F.3d 63 (1st Cir. 2014), cert. den., 135 S.Ct. 2059, 191 L.Ed.2d 958 (2015). Cf. Bogertman v. Attorney Gen., 474 Mass. 607, 616, 53 N.E.3d 627 (2016).

         Here, O'Keefe's statements are offered not for their truth but rather, to show his state of mind and the effect of his words on a reasonable physician. Notably, the defendants do not claim that the statements attributed to O'Keefe in the newspaper are inaccurate, nor do they contend that it is improper for the court to consider those statements in ruling on the motion to dismiss. Rather, they argue that the plaintiffs have taken O'Keefe's statements out of context because when he made them, he had not yet been served with the complaint in this matter and was not commenting on the specific facts of this case. The defendants emphasize that O'Keefe subsequently ...


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