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1993 Active v. Passive : Why Keep the Distinction? Yale Kamisar University of Michigan Law School, [email protected]

Available at: https://repository.law.umich.edu/articles/931

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Recommended Citation Kamisar, Yale. "Active v. Passive Euthanasia: Why Keep the Distinction?" Trial 29, no. 3 (1993): 32-4, 36-8.

This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Reprinted with permission of Trial (March 1993) Copyright American Association of Justice, formerly Association of Trial Lawyers (ATLA ®) ~------~lc nrn1n· · a1 Lavv

Active v. Passive Euthanasia: Why l(eep the Distinction?

Yale Kamisar

n the past two decades, we have 1991 that Washington state would be­ Rochester, New York, doctor who is also witnessed a "sea change in pub­ come the first jurisdiction in the West­ a member of the University of Roches­ lic, medical, and legislative judg­ ern world to legalize active euthanasia, ter Medical School faculty. Quill was ments" about "letting die" and Initiative 119 (euphemistically called the neither indicted nor disciplined by med­ I 1 the "." But it is no less true "death with dignity" or "aid in dying" ical authorities for prescribing enough today than it was 35 years ago, when I referendum) went down to defeat. And barbiturates to enable a long-standing first wrote about this subject, that in last November, although once again patient to commit suicide following her Anglo-American jurisprudence active early polls indicated overwhelming sup­ refusal of treatment for a severe type of euthanasia (what used to be called port for a similar proposal in California leukemia. 8 "mercy killing") is . 2 (Proposition 161), it, too, failed. The response to Quill's action and to So far as the law on the books is con­ At first blush, these political setbacks the article he wrote in a medical journal cerned, it matters not that one who in­ for the active euthanasia movement spelling out what he had done and why tentionally kills another human being seem fairly decisive. But I think not; has been "very positive" and has "moved "does so at the victim's request" or that they can be explained away or at least public discussion away from the suicide "his motive is the worthy one of termi­ minimized. I believe that Kass's con­ machine." 9 Many who were jolted, or nating the victim's sufferings from an in­ cerns are as well founded today as when at least greatly troubled, by Kevorkian's curable and painful disease."3 As one he first voiced them in 1989. actions supported QuilJ.I 0 commentator recently explained it, "So Jack Kevorkian, the Michigan pathol­ Although last November California great a value is put on life that a person ogist who practices as well as preaches voters defeated Proposition 161 by a 54 may not waive his ; killing , may have significantly percent to 46 percent margin, support does not become nonculpable because affected the outcome in Washington. for the measure was impressive-con­ the victim consented."4 Less than two weeks before voters went sidering that a coalition oflOO organiza­ But all this may change in the near to the polls, Kevorkian used his "sui­ tions (including the Roman Catholic future. As one of the nation's most cide" machine twice in one night. From Church, the California Medical Associa­ forceful and eloquent opponents of ac­ that point on, according to a spokesper­ tion, and the California Nurses Associa­ tive euthanasia, the University of Chica­ son for the in Seattle, tion) fought the proposal, nearly every go's Leon Kass, observed several years voter support for the "aid-in-dying" major newspaper in the state editorial­ ago, "So-called active euthanasia prac­ measure fell dramatically. 6 At the very ized against it, and opponents of the ticed by physicians seems to be an idea moment Kevorkian swung into action, proposition outspent proponents by a whose time has come."5 a TV blitz against the measure hit the margin of at least 3 to l. 11 Not a few would say that Kass exag­ airwaves, and "Jack Kevorkian put a face Moreover, opponents ofProposition gerated the potency of the assault on the on [people's] fear." 7 161 did not frontally attack the basic no­ long-standing prohibition against "di­ But proponents of assisted suicide and tion embodied in the measure as much rect" or "active" euthanasia. After all, active euthanasia have distanced them­ as they raised fears that it lacked ade­ although most forecasters predicted in selves from Kevorkian, noting that the quate protections. 12 They pointed out women whose deaths he assisted were that Yale Kamisar is the Clarence Danvw Dis­ not his patients and not terminally ill. ~ although the initial directive had tinguished University Professor of Law at the They point instead to the "aid-in­ to be witnessed by two people not University of Michigan. dying" performed by Timothy Quill, a linked financially with the patient, no

32 TRIAL MARCH 1993 Gan Porter :-.;:e\\S,GJmma-LJJJson

Dr. Jack Kevorkian and his 'suicide' machine

witnesses were mandated at the time of active euthanasia for incurable and coma­ thev think thev'll be treated bv the the actual request for and implementa­ tose patients. 16 health care svst~m when thev're ven· tion of euthanasia; According to a close observer of the ill that thev;d rather be de;d .... · ~ although an "enduring request" Proposition 161 contest, "The ranks of Average p~ople are . . . so dismayed by a qualified patient was required, it those voting no swelled as the opposi­ at how death occurs in this countn' was simply defined as one "expressed on tion coalition focused its advertising and so distrustful of physicians' abili~· or willingness to give them a "good more than one occasion" (perhaps only during the final weeks on what worked death" that they will consider over­ a day or several hours apart); a year earlier to bring down a similar turning thousands of years of medical ~ there was no required "waiting pe­ measure in Washington state by a nearly ethics and societal prohibitions to le­ riod" after a patient decided to seek identical margin (54-46): voters' fears galize direct killing by physicians.'9 help in dying; and that mistakes would be madc." 17 But ~ the proposal did not require a psy­ only six months before Proposition 161 I noted earlier that Leon Kass observed chiatric evaluation to rule out treatable went down to defeat, surveys showed recently that active euthanasia appears depression as a basis for the request. 13 that 75 percent of California voters sup­ to be "an idea whose time has come."20 ported the basic idea of physician aid­ But he was quick to add, "In my view, Public Acceptance in-dying, 54 percent strongly so. 18 it is a bad idea whose time must not Most opponents of Proposition 161 Thus, Alexander Morgan Capron, the come-not no,v, not ever." 21 hammered away at its inadequate safe­ former executive director of the Presi­ I agree. I was pleased when Washing­ guards rather than its basic idea prob­ dent's Commission for the Study of ton's Initiative 119 went down to defeat ably because they were well aware that Ethical Problems in Medicine and Be­ in 1991 and when California's Proposi­ "the marked increase in public accep­ havioral Research, now professor oflaw tion 161 met a similar fate last vear. tance of killing terminally ill patients and medicine at the University of South­ But proponents of these measu'res arc ... has been striking." 14 According to ern California, had good reason to issue not easily discouraged. They can be ex­ public opinion polls, not only does a the following warning: pected to try again (perhaps in Oregon large majority of U.S. citizens now sup­ or Florida or in Washington a second port Jaws allowing terminally ill patients Proposition l6l's defeat should not time) with more finely honed versions to refuse or stop life-sustaining treat­ obscure the remarkable fact that mil­ of the measures that failed. And I share ment, 15 but many Americans now favor lions of people arc so fearful of how Professor Capron's concern that unless

TRIAL MARCH 1993 33 health care providers who oppose active we do not always mean it. We make those who defend the distinction are so euthanasia "change those aspects of the "quality of life" judgments, but we determined to keep a chasm between system that make a quick death such an deny it. We practice a kind of euthanasia the two practices that they insist that attractive alternative, support for legaliz­ in a soft light, subdued by history, but the withholding or withdrawal of life­ ing euthanasia is sure to build and even­ we would rather not examine this prac­ sustaining measures is not passive eu­ tually to prevail."22 tice in the bright spotlight of utmost thanasia or any other kind of euthana­ In resisting the active euthanasia move­ analytic clarity. sia and that to use the "E" word in ment in the years ahead I shall be aligned As I see it, the purpose of the distinc­ this· context only causes confusion. 30 with, and rooting for, Capron, Kass, tion between "direct killing" and "let­ (I would say rather that it causes, and and such other well-known commenta­ ting die" is not (as some claim) to sepa­ ought to cause, concern.) tors and spokespersons as Daniel Cal­ rate deaths caused by human action But I think one of the leading propo­ lahan, Arthur Caplan, Albert Jansen, from those caused by the processes nents of euthanasia (both active and John Pickering, and Susan Wolf. 23 But of nature. Nor (as others claim) is it to passive), the renowned British legal the law and politics of euthanasia make separate intrinsically immoral practices scholar Glanville Williams, had it right strange bedfellows. My anti-active-eutha­ from permissible ones. Rather, the pur­ when, 20 years ago, he said, nasia confreres are favorably disposed pose of the distinction-or at least its toward, or at least willing to accept, A toehold for euthanasia is provided by the practice ofletting die, or what what used to be called, and I still call, is now called passive euthanasia .... passive euthanasia-a practice that has If this distinction between an act and gained wide acceptance. But I have al­ Many physicians fail to use an omission is thought to be artificial, ways been greatly troubled by it. means that are now its artificiality is imposed on us by our r have reexamined the earlier writings available to relieve refusal to accord the same moral free­ of my "allies" and read their most re­ virtually all pain. dom for action as we do for inaction. cent contributions to the literature. 24 Pending a change of thought, the Insofar as they maintain that individual concept of an omission is a useful acts of "direct" or "positive" or "ac­ way of freeing us from some of the tive" euthanasia are fundamentally dif­ effect-is to have it both ways. consequences of overrigid moral attitudes. 31 ferent from the "passive" or "negative" For a long time we have had it both variety-that the former is unacceptable ways. In the 1940s, 1950s, and 1960s­ I have no doubt that Alex Capron, or intrinsically immoral while the latter as the many fuilures to indict, acquittals, Daniel Callahan, Leon Kass, and other is permissible-I find many of their ar­ and suspended sentences attest-when opponents of active euthanasia draw the guments unpersuasive and none of them "mercy killing" occurred, the law in ac­ line at letting die as a matter of prin­ convincing. tion was "as malleable as the law on the ciple. They support the "right to die," As Dean Guido Calabresi ofYale Law books [was] uncompromising."27 but strongly resist direct killing. School has pointed out, when we have In the 1970s the distinction between Many others, however, have never to make "tragic choices" -choices that "extraordinary" (or "heroic") and "or­ been happy with this distinction. They confront us when fundamental beliefs dinary" medical treatment proved ser­ were willing to draw the line between clash-"we look for solutions which viceable. 28 Although the terms are so letting die and active euthanasia not as seek to cover the difficulty and thereby spongy and were used so loosely that a matter of principle but only as a mat­ permit us to assert that we are cleaving the distinction is now widely rejected, ter of tactics. I count among them the to both beliefS in conflict."25 A good ex­ in its time this distinction, too, medi­ two leading euthanasia proponents of ample is how we have dealt with death, ated or obscured the conflict between our time-Glanville Williams and the dying, and euthanasia. our two sets of beliefS. late Joseph Fletcher, the prominent Calling a life-sustaining medical proce­ medical ethicist. Beliefs in Conflict dure extraordinary was more an expres­ For them, the distinction was a ser­ Two sets of beliefs are in conflict. On sion of the conclusion that the proce­ viceable one because it afforded the the one hand, we want to respect pa­ dure could ethically be discontinued physician and the patient's fumily much tients' wishes, relieve suffering, and put than it was a justification for doing so. more room to maneuver than would be an end to excessively burdensome and But the terminology reassured the pub­ possible if one had to proceed by lethal seemingly futile medical treatment. On lic that "only certain kinds of lifesaving injection-and it gave the rest of us, or the other hand, we shrink ·from the measures could be, and would be, ter­ most of the rest of us, less cause for concept of a life not worth living. We minated; that disconnecting an uncon­ alarm. But these people were always want to affirm the supreme value of life. scious patient's respirator in some vague committed to the realization of active We want to maintain the salutary prin­ way only constitutes a 'slight deviation' euthanasia. For them, acceptance of the ciple that the law protects all human life, from our official morality."29 "right to die" was only a partial victory no matter how miserable a person ap­ The extraordinary/ordinary distinction -a stopgap measure. 32 pears or how worthless she happens to has not fared well in the law of death They are no longer content to have feel. and dying. Another distinction, one it both ways. They are not, and never In short, we want it both ways. The also rooted in Roman Catholic tradi­ were, satisfied with euthanasia in a soft two sets of beliefs are in conflict, or at tion, has proved to have much greater light, subdued by history; they also least in great tension, but somehow we staying power-the distinction between want it in a bright spotlight. cling to both. 26 killing and letting die. At a euthanasia conference held nearly We say all human life is inviolate, but Interestingly, an increasing number of two decades ago, Fletcher maintained

34 TRIAL MARCH 1993 that there is no real difference between prudence and workability."36 they see it, the time has come to upset letting die and active euthanasia: "A Since that conference was held, doc­ the compromise between letting die and deliberate act of omission, when death tors have greatly increased their use of direct killing. The time has come to is the goal or purpose or end sought, the "age-old passive form" of euthana­ move on to the next stage of euthanasia. is morally the same [as] a deliberate act sia. Negative or passive euthanasia-even of commission.' ' 33 He argued that doc­ removal of the feeding tube-is now a Compromise Position tors ought to engage in both forms of fait accompli in modern medicine. That "It is one thing to justify an act; it euthanasia. battle is over. And there is now more is another to justify a general practice."37 Fletcher's views disturbed some who support for active euthanasia than there Thus, those who can imagine individual attended the conference. Another speak­ ever has been-and I fear that that sup- circumstances where active euthanasia er warned that since some do not clearly would be hard to condemn (and I cer­ distinguish between active and passive tainly can) may still oppose legislation euthanasia and "since active euthanasia authorizing the practice. We may do so, ~ say all human life is is morally repugnant to so many . . . as Rutgers Law School's Norman Can­ this confusion has led many physicians inviolate~ but we do not tor has argued, on the ground that to avoid the use of the very desirable, always mean it. "such a radical alteration" in the legal accepted passive form."34 According to framework surrounding gravely ill pa­ this speaker, the distinction between the tients "ought not to be instituted unless two forms of euthanasia had to be main­ port will grow even stronger. it is absolutely essential"38-and no such tained "so that physicians will continue Fletcher is no longer with us, but his showing has been made. and in fact increase their use of this age­ allies and his followers are, and they are The reasons laypeoplc most often give old passive form" and "to insure that making their presence felt. They no for supporting active euthanasia are that passive euthanasia not be tainted in longer feel the need to separate active it is inhumane to make patients suffer any way by the active euthanasia euthanasia from the passive variety for from intractable pain or that it is in­ movement."35 pragmatic reasons. Passive euthanasia is humane to keep them biologically alive Fletcher gave this response: ''Though now so well established that people of when they seem to have "no life to the alleged difference between [passive Fletcher's persuasion are no longer con­ live." But many physicians fail to use and active euthanasia] is not a real one cerned that it will be "tainted" by the means that are now available to relieve ethically or philosophically or theolog­ active euthanasia movement. virtually all pain.3 9 And though ad­ ically regarded, it is arguably possible to Proponents of active euthanasia are in vances in medical technology have made separate them for pragmatic reasons of a strong position, and they know it. As it possible, as one commentator has put CRIMINAL LAW Find Out What You're Missing

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36 TRIAL MARCH 1993 it, to extend existence beyond all "nat­ The new law establishes a commission to ural bounds," physicians, patients, and study the issue of assisted suicide. The com­ mission is to report to the legislature within fumilies have learned how to resist medi­ 15 months after the statute becomes effective, cal procedures this commentator calls and the ban is to remain in effect until six INTERNATIONAL "merely burdensome or degrading months after the commission makes its recom­ medical additions to the unhappy end mendations. During this time the legislature 40 will decide whether to continue the ban or of a life." to deal with the problem in some other way. CHILD I have been an active participant in Assisted suicide is not quite active euthana­ the euthanasia debate, but I have also sia. The final act, the act that brings on death, tried to be an objective observer of is performed by the patient herself, not an­ other person (a physician or relative or friend). ABDUCTION developments. I am not enamored of And there is always the possibility that the pa­ the distinction many have drawn be­ tient may change her mind and not carry out tween terminating life support and re­ the final act. On the other hand, assisted sui­ sorting to external death-causing agents, cide is certainly something more than passive euthanasia. At the least, it strikes me, it is a If your client's child but I have to recognize that this dis­ bridge between active and passive euthanasia. tinction has become an integral part of 7 Powers, supra note 6; see also Rob Carson, is a victim of the medicolegal landscape. Washington's I-119, HASTINGS CENTER This is not the conclusion I would REP., Mar.-Apr. 1992, at 7-9. parental child abduction 8 See Timothy Quill, Death and Dignity: A Case have arrived at, but it seems to be the ofIndividualized Decision Making, 324 N. ENG. into a foreign compromise position our society has J. MED. 691 (1991); Lawrence Altman, jury reached in the struggle to preserve as Declines to Indict a Doctur Who Said He Aided country, many traditional restraints against killing in a Suicide, N.Y. TIMES, July 27, 1991, at A1; Lisa Foderaro, New York Will Not Discipline you need the assistance as we can consistent with taking a hu­ Doctur for His Role in Suicide, N.Y. TIMES, Aug. mane approach toward seriously ill pa­ 17, 1991, at A25. of APS International. tients. This is not the way I would have 9 See Altman, supra note 8. liked to resolve the controversy, and I 10 See Kadish, supra note 1, at 859 n.ll; Note, very much doubt that it is the way most Physician-Assisted Suicide and the Right to Die with Assismnce, 105 HARV. L. REV. 2021, logicians or philosophers would resolve 2035-37 (1992); Arthur Caplan, Two Vz&ws of it-but it may nevertheless be a prag­ Assisted Suicide, DET. FREE PRESS, Mar. 19, matic and defensible way to do so. D 1991, at 2B. II See Lori Olszewski, Right-to-Die Apparently a Loser, S.F. CHRON., Nov. 4, 1992, at Al2. Notes 12 See Paul Jacobs, California Elections, L.A. TIMES, I Sanford Kadish, Letting Patients Die: Legal and Nov. 5, 1992, at 3; Robert Reinhold, Califor­ Moral Reflections, 80 CAL. L. REV. 857, 862 nia to Decide ifDocturs Can Aid in Suicide, N.Y. (1992). TIMES, Oct. 9, 1992, at Al. 2 Yale Kamisar, Some Non-Religious Vz&ws Against 13 See Alexander Capron & Vicki Michel, Proposi­ Proposed "Mm:y-Killing" Legislation, 42 MINN. tion I61: What Is at Stake, COMMONWEAL, L. REV. 969, 970-71 n. 9 (1958) and accom­ Sept. 1992 (spec. supp.), at 2. panying text. 14 Kadish, supra note 1, at 861. 3 WAYNE LAFAVE & AUSTIN SCOIT, 1 15 See Clay Richards & B.D. Colen, Poll: Most SUBS'D\NTIVE CRJMINAL LAW 320 (2d Favor "Right to Die" Laws, NEWSDAY, ] une ed. 1986). 10, 1990, at 15. 4 Kadish, supra note 1, at 858. But a leading 16 See Melinda Beck, The Doctur's Suicide Van, Let APS International medical ethicist has forcefully argued that "the NEWSWEEK, June 18, 1990, at 47; Andrew right not to be killed should be waivable when Malcolm, Giving Death a Hand, N.Y. TIMES, the person makes a competent decision that June 9, 1990, at 6; Should Death Be a Patient's recover your client's continued life is no longer wanted or a good, Choice?, PARADE, Feb. 9, 1992, at 26 (of but is instead worse than no further life at all." those surveyed who had a position on the "stolen" child Dan Brock, Volunmrv Active Euthanasia, HAST­ issue, a plurality (49 to 35 percent) favored INGS CENTER REP., Mar.-Apr. 1992, at 10, doctors assisting conscious, rational, dying through diplomatic 14 (emphasis added). patients with their suicides). 5 Leon Kass, Neither for Love nor Money: Why 17 Alexander Morgan Capron, Even in Defoat, Pro­ channels. Docturs Must Not Kill, PUB. INTEREST, Win­ position 161 Sounds a Warning, HASTINGS ter 1989, at 25, 26. CENTER REP., Jan.-Feb. 1993, at 32. 6 See Rebecca Powers, Some Call Kevorkian Poison 18 Id. You must move quickly to Group's Goals, DET. NEWS, Feb. 2, 1992, 19 Id. at 4A. 20 Kass, supra note 5, at 26. or lose your rights!! In December 1992, shortly after Kevorkian 21 Id. -8 (J had assisted in the deaths of two more people, 22 Capron, supra note 17, at 33. 0 Michigan enacted a law making assisted suicide 23 Callahan is the director and co-founder of the .Eu a felony punishable by up to four years in pris­ Hastings Center, noted for its work in the field QUICK, AFFORDABLE on. The law, which takes effect March 30, of . Caplan is the director of the ...~ 1993, prohibits one who has knowledge that Center for Biomedical Ethics at the University & EFFECTIVE (90% )!! ~ a person intends to commit suicide from "in­ of Minnesota. Jonscn is professor and chair of ~ tentionally" "provid[ing] the physical means" the Department of Medical History and Ethics c or "participat[ing] in a physical act" by which at the University of Washington School of 0 For More Information Call: '-0 that person attempts or commits suicide. Medicine; he was a leading opponent ofWash­ N (§7(1).) The prohibition docs not apply to ington state's Initiative 119. Pickering is chair­ - d "withholding or withdrawing medical treat­ person of the ABA Commission on Legal Prob­ c ment by a licensed health care professional." lems of the Elderly; he led the opposition to 0 (§7(2).) a proposal-defeated overwhelmingly-that "E ~------~0 TRIAL MARCH 1993 37 the ABA House of Delegates endorse active euthanasia legislation. Until recently, Wol~·was at the Hastings Center; she now has a JOint appointment in the law and medical schools of the University of Minnesota. 24 See, e.g., DANIEL CALLAHAN, WHAT KIND OF LIFE: THE LIMITS OF MEDI­ CAL PROGRESS 221-49 (1990); Alexander Capron, The Right m Die: Progress and Peril, 2 EUTHANASIA REV. 41 (1987); Kass, suprn note 5; Albert Jonsen, Beyond the Physician's Reference: The Ethics of Active Euthanasia, 149 WEST J. MED. 195 (1988); Susan Wolf, Hold­ Structuring Your i'fl!f the Line on Euthanasia, HASTINGS CEN­ TERREP., Jan.-Feb. 1989 (spec. supp.), at 13. This article was written before I had received galleys of Callahan's forthcoming book, THE TROUBLED DREAM OF LIFE: LIVING Settlement WITH MOR.TI\LITY (1993). In it, Callahan Sixth in a series makes the most powcrtul and persuasive de­ fense of the distinction between direct killing and letting die that I have ever read. 2s GUIDO CALABRESI, IDEALS, BELIEFS, What assets can fund a ATTITUDES, AND THE LAW 88 (1985). Q. 26 Cf id. at 87-91. See also GUIDO CALABRESI, structured settlement? A COMMON LAW FOR THE AGE OF STATUTES 172-77 (1982). 27 Kamisar, supra note 2, at 970-71. See also GUIDO Historically the favorite asset for funding structured CALABRESI & PHILIP BOBBITT, TRAGIC A settlements has been an annuity (sometimes called a CHOICES 57 (1978). • "settlement annuity") issued by a life insurer. This type 28 See Yale Kamisar, When Is There a Constitutional of annuity is unlike other annuities in some respects; for "Right mDie''? When Is There No Constitutional example, a plaintiff cannot own one. "Right mLive"?, 25 GA. L. REV. 1203, 1219- 20 (1991). Recently U.S. Treasury bonds gained in popularity as funding 29 Id. at 1220. assets, due mainly to 1988 tax legislation. IRC §130 was amended 30 See, e.g., NEW YORK STATE TASK FORCE to permit the plaintiff to have a security interest in the funding ON LIFE & THE LAW, LIFE-SUSTAINING asset(s) in an assigned structure. TREATMENT: MAKING DECISIONS & APPOINTING A HEALTH CARE AGENT Settlement annuities still have the dominant market share. Tort 40-42 (July 1987); Ronald Cranford, Is Active lawyers are more familiar with this product, and the payment Euthanasia justifiable?, in ACTIVE EU­ options available allow great flexibility in planning. For example, THANASIA, RELIGION & THE PUBLIC annuities can be life-contingent (a large share of the market belongs DEBATE 80 (Laurence J. O'Connell cd., to annuities which will pay as long as the plaintiff lives); usually 1991). 31 Glanville Williams, Euthanasia, 41 MEDICO­ there is also a guarantee ranging from 10 to 40 years. LEGAL J. 14, 18, 21 (1973). The Executive Life debacle encouraged a "flight to quality" which 32 Cf DAVID LAMB, DOWN THE SLIPPERY drove some less stalwart annuity companies from the market. The SLOPE 58 (1988). 33 SEVENTH ANNUAL EUTHANASIA remaining players (with an exception or two), retained high ratings, CONFERENCE, Dec. 7, 1974, at 5, 8. even though the major rating services toughened standards. 34 Id. at 15-16 (Dr. Alfred Jaretzki). The flight to quality bas also given a big boost to Treasury bonds. 35 Id. With a properly perfected security interest against the assignee 36 Id. at 20. 37 lDM BEAUCHAMP & JAMES CHIL­ company-the Treasury bonds being the security-the risk to the DRESS, PRINCIPLES OF BIOMEDICAL plaintiff is, again, driven down into the "bard to measure" category. ETHICS 138 (3d ed. 1989). Often both types of assets are used in a single deal. In certain 38 Norman Cantor, The Permanently Unconscious climates the yield on a bond structure will about match the yield on a Patient, Non-Feedi'fi!J and Euthanasia, 15 AM. J. L. MED. 381, 432 (1989). settlement annuity, but more often the settlement annuity will have a 39 The fear of many lay people that the dying pro­ bt>.tter yield. A structure funded by either asset will offer tax-free cess is worse than death itself is justified, ob­ financial performance which, as to the conservative part of his or serves Capron, supra note 17, at 32-33, "given her portfolio, only the unusually fortunate plaintiff could match by the fuilure of fur too many medical practitioners investing an all-cash settlement. to understand and apply modem pain manage­ ment. The reason most lay people don't know Next Month: Structured Settlement Tax Tips that pain can be relieved in virtually every case (usually with means and doses that need not render patients unable to interact with their From an article by WIWAM L WINSLOW, attorney, Santa Monica, CA. environment) is that many have themselves For a free copy of the full article, call 1-800-264-2663. gone through illnesses or surgical recoveries (c) William L. Winslow 1992 without appropriate pain control or, worse yet, have seen loved ones die in unrelieved pain. · Advertisement Sponsored By Physicians, nurses, and other providers can­ Bond Settlement Corporation and must-overcome their cognitive and psy­ chological impediments to providing adequate, Periodic Payments funded with U.S. Treasury Bonds patient-centered pain relief." Member, National Structured Settlements Trade Association 40 Leon Kass, Why Docmrs Must Not KiU, COM­ Circle no. 176 on reader service caru. MONWEAL, Sept. 1992 (spec. supp.), at 8, 11.

38 TRIAL MARCH 1993