Think Out Loud

Lawsuit challenges residency requirement of Oregon’s Death With Dignity law

By Julie Sabatier (OPB)
Oct. 28, 2021 4 p.m. Updated: Nov. 10, 2021 11:33 p.m.

Broadcast: Thursday, Oct. 28

Oregon’s Death with Dignity law allows Oregon residents diagnosed with a terminal illness that will lead to death within six months to access medical aid in dying. The advocacy group Compassion & Choices says that the residency requirement is unconstitutional. The group filed a lawsuit Thursday on behalf of Nick Gideonse, a physician who specializes in end-of-life care. Gideonse says he wants to be able to work with patients in neighboring states and points out that no other medical treatment requires a patient to be a resident of a particular state. We hear from Gideonse about the lawsuit and his experience with medical aid in dying.

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The following transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. This morning, a Portland doctor brought suit in federal court against the state of Oregon. He did it in conjunction with the group Compassion & Choices which lobbies for medical aid in dying laws all around the country. The suit argues that the residency requirement in Oregon’s Death with Dignity law violates the US Constitution’s guarantee of equal treatment. And it’s asking the court to prohibit Oregon officials from enforcing that provision of the law, meaning a physician in Oregon could provide aid in dying to a patient who came from Washington or Idaho or from Kansas for that matter. Nick Gideonse is the family doctor who brought the suit. He is an associate professor at OHSU, the medical director for Kindred Hospice and an on-call physician at Blue Mountain Hospital in John Day. Nick Gideonse, welcome to Think Out Loud.

Nick Gideonse: Thank you, Dave, glad to be here.

Miller: The lawsuit notes that you have significant experience with the process of medical aid in dying in Oregon, including caring for many patients who have sought that aid, teaching courses in it and advising residents at OHSU. How did this become one of the focuses of your medical practice?

Gideonse: You know, it’s been really incremental, but I learned from a teacher a long time ago to listen to the patients. When the debate occurred in Oregon in the mid nineties, I was a newly trained, first position physician and it didn’t take much listening to my cancer patients, my patients facing terminal illness, to know that this was an option that would help many by just its availability, by knowing the option was there and for the particular patients who go through the process and pursue it, it’s profoundly meaningful and helpful towards achieving a better death when faced with terminal illness.

Miller: Can you remind us what that process is, the kind of checklist that you and your patients have to go through before a patient can get a prescription for a fatal dose of medications?

Gideonse: Simply put they have to make persistent requests in the absence of any psychological illness that would render them not able to make such a decision, and with the presence of a terminal illness that’s expected to shorten their life such that they would live six months or less. They also need a second physician’s opinion confirming that competency and the terminality of their illness. They need to make a written request between the serial verbal requests. The only substantive change made to the law was that last year the 15 day waiting period could be waived, if the patient was thought to potentially die within those 15 days, if their disease is accelerating very quickly.

Miller: And then there’s also this residency requirement, how does that work?

Gideonse: The patient needs to be a resident and the physician attests that they have confirmed that their residency is there, such as, domicile is essentially the same rules, are receiving mail, that sort of thing. So for that reason, I have declined patients from Washington who have sought my counsel.

Miller: Why did you sign on to this lawsuit?

Gideonse: Well, the restrictions, the safety checks that are there are hard to go through when you’re ill and tired and facing the symptoms of terminal illness. Anything that increases access and decreases the burden of access for dying patients, I think it’s really helpful. And this, while I certainly understand why it was in the original bill that Oregon’s original referendum that Oregonians voted for, because we were the only state in the nation for about a decade that had such a law, now that it’s become a common medical practice, that there are standards of care, that we understand what doing it right looks like. I think removing this artificial restriction will benefit my patients who live in Washington who wish to have me provide the service to them.

Miller: You said that you’ve had patients from Washington in the past who have requested this aid and you had to turn them down. Can you give us a sense for what those conversations were like and what options those patients then had?

Gideonse: They were short and they were hard because I needed to be clear in my inability to help. And then the process then for them were to find and that seemed to be the problem, it was one of the drivers for me being approached by Washington patients is that we’re having a difficult time finding physicians in Southwest Washington to meet the need under Washington’s law.

Miller: Why is that?

Gideonse: There is no mandatory participation. This is a relatively rare event, less than 1% of all deaths. So many physicians are not familiar with the process and when you’re not familiar with the process, even though it’s not that terribly complicated, it can be intimidating to do so, and there are restrictions. For example, I used to work for a Catholic health care organization. There are really clear restrictions against participating in medical aid in dying.

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Miller: So, you’re saying that some people actually came to you from Washington after they had sought unsuccessfully to find a Washington doctor.

Gideonse: Well, again, because they’ve been referred to me or because they were part of my existing OHSU, because I do have, I see patients from Washington almost every day. I don’t know the extent that they searched prior, but they certainly had not succeeded in finding a physician prior to asking me.

Miller: The flip side of this is worth exploring too. If you were able to successfully refer a Washington patient of yours to a Washington based doctor who agreed to help them use Washington’s Death with Dignity law. That would still mean that they would have switched doctors near the very end of their lives when so many other things were going on. What do you think that means, that switch of doctors at the end of a patient’s life?

Gideonse: Any interruption in continuity care is disruptive. Retelling your story. Re-establishing the facts, focusing on the differences of opinion that we might have because we’re physicians and we’ll often see things through a different lens and especially when people are suffering those symptoms of terminal illness. So yes, it’s disruptive to care and there shouldn’t have to be that disruption when there’s no material reason and when my practice is not restricted in other ways. I can perform a vasectomy or deliver a baby from that patient who resides in Washington. There’s no restrictions on that. I don’t see why this should be an exception.

Miller: I should note that we reached out to all of the defendants in the lawsuit to see if any of them wanted to provide statements. Most of the ones who got back to us declined, noting that they don’t comment on matters of pending litigation. But the Oregon Attorney General Ellen Rosenblum did have a statement she sent us this: “The law has served Oregonians well in its 24 years of existence. It is compassionate and careful in its requirements. We will review this lawsuit, as we always do before commenting officially on its merits, but I certainly will go on record as a supporter of making it possible for those who live in Oregon to be able to avail themselves of the law when their circumstances qualify and when they choose to do so.” So, clearly nothing there official about the actual arguments made by your case, to not just have this be open to people who live in Oregon, but to people anywhere in the country. I’m curious, I mentioned, and I should remind folks, I’m talking right now with Nick Gideonse, a plaintiff in this new lawsuit filed by Compassionate Choices. One of the places that you practice a couple weekends a year or a handful is Blue Mountain Hospital in John Day, which is something like two hours from the Idaho border. And there, unlike in Washington, there is no version of a Death with Dignity law. Is that close enough? Or perhaps you could just look to Ontario right across the Snake River. Is it close enough where you’ve seen patients from Idaho who would want to take advantage of Oregon’s law and have no version of it in their home state?

Gideonse: I have not in any official capacity seen patients from Idaho requesting the service or getting specific details about it, so I have less to say, and I know there can be other legal barriers, such as existing suicide laws or suicide prevention laws, so at the moment, the case is, and certainly from my practice and clinical experience, the case is focused on the patients right across the river in Vancouver, who I already care for.

Miller: You noted that you can perform vasectomies or deliver babies to people regardless of the state that they’ve come from. Is there any kind of procedure or therapy that you as a physician are barred from providing to non-Oregonians in Oregon on the basis of residency?

Gideonse: Not that I’m aware of. And again, I would refer to the lawyers on this, but I know the Supreme Court has ruled for other procedures that patients certainly have the right to cross state lines to get medical care. So, no, this is an exception, and again, I understand the origin of the exception and I understand the Attorney General’s thought, it’s a great law and this is not meant to hurt the law or to be against the law, but only to make it better.

Miller: Well, let’s turn to the reasons why this was put in place in first, because you’ve said twice now that maybe when the Oregon law went into effect at the very beginning, when we were the only state to have anything like this, that it made sense, it was defensible. Let’s say that this new lawsuit were successful and the residency requirements in Oregon first, and maybe in other states were struck down. Do you think it would lead to a big increase in terminally ill people seeking treatment in neighboring states?

Gideonse: No, we know that people at the end stages of these illnesses, many of whom are much less than six months from death when they pursue medical aid and dying, they’re not gonna uproot themselves from their support networks, their caregiving networks unless extremely motivated. For the small number that do, who have the resources and the ability and make that change, I think they’ll get good medical care from the physicians caring for them in this context. In that sense, just as you know, other restrictions occur on, let’s say, abortion rights for others, that you know that I don’t see that as a problem per se and I do not expect that we’ll see a large uptick in the numbers of patients served by Oregon’s law. For those that do, it will be meaningful. And for my patients in Washington, who can get that care from me, it will be very meaningful.

Miller: Looking at the bigger picture, just in terms of recent Oregon numbers, we saw a big increase in the use of the Death with Dignity Law in Oregon in 2020 compared to the year before. The number of Oregonians who received fatal prescriptions went up 25%, and the number of Oregonians who took that medicine went up 28%. How do you explain these recent numbers?

Gideonse: I think there’s two main factors, Dave. One, we did have those excellent senators, Steiner and Mitch Greenlick put forward the amendment that allowed the shortening of the waiting period, because we would run into patients where things were just going too fast for us to meet the 15 or more days it would take to get it together. I think that’s one group and there’s some evidence that that number sort of correlates with the increase. I also think in these horrible two years of increased death from all causes lower life expectancies, COVID deaths for sure, and then other deaths from other causes are often up as well, that this has been a year where we’ve had to face that. And whenever people think about and plan for their terminal illness or death, they think about Death with Dignity and use goes up.

Miller: Does what you’re describing strike you as a permanent societal change because of the horror of COVID and more awareness and acknowledgement and reckoning with death or does it strike you as a temporary blip?

Gideonse: I hope, on a sort of more positive thing, that people can more clearly face the choices that they would have an end of life, can more come to terms with and face the fact that it’s something we all will experience and given the sort of curve that we’ve seen last year, I don’t think it’s a one-off blip. I think people’s ability and desire to access this end of life option will continue to grow.

Miller: Nick Gideonse, thanks for your time today. I appreciate it.

Gideonse: Glad to be here today. Thank you so much for having me.

Dave Miller: Nick Gideonse is an Associate Professor of Family Medicine at OHSU. He’s the medical director for Kindred Hospice and he also is a physician at Blue Mountain Hospital in John Day. He is the plaintiff in the lawsuit filed this morning by the advocacy group, Compassion & Choices.

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