No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.
Ted Eytan, MD, via Flickr CC BY-SA 2.0

There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0

Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0

But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number

CC0 1.0 via Wikimedia Commons

The Massachusetts Appeals Court yesterday rejected Motel 6 liability for the suicide of a guest.

The September 1 decision broke no new ground, but reiterated the interrelationship of duty doctrines in negligence and Massachusetts repudiation of the common law "suicide rule."

Decedent Michael C. Bonafini took his own life in a room of the Motel 6 in Chicopee, Massachusetts, just north of Springfield in 2015. The mother and wife of the decedent blamed the motel because they went there in the night and morning trying to reach him, and motel staff would not reveal his room number. In the morning, the mother told the motel clerk that the decedent was at risk of suicide. The clerk called the room, but the decedent answered and immediately hung up. He was found dead when the motel manager entered the room at noon checkout time.

The case implicates potentially conflicting duty relationships in the common law of negligence. The reputed "suicide rule" of historical common law held that there can be no liability for a suicide. At the same time, common law recognizes an affirmative duty of an innkeeper to a guest, and the Massachusetts Supreme Judicial Court has recognized a duty to prevent suicide in some circumstances.

Historically, courts were loath to impose accident liability for an intentional act of self-harm on an earlier-in-time actor, especially when the intentional act was an attempt to commit suicide. The conclusion could be reached either by ruling that there was no duty to prevent another from intentional self-harm, which usually was criminalized, or by reasoning that the abrupt, violent, and intentional act of suicide dispositively interrupted the requisite chain of proximate causation.

It's arguable that there never was a "suicide rule," per se, rather a doctrine of duty and causation that was informed by social norms. Norms change. Suicide is less often today regarded as a matter for criminal justice, even if criminal laws remain on the books to justify the intervention of authorities. The trend in tort law is to employ the usual doctrines of duty and causation to analyze the facts of each case. That said, the "suicide rule" still holds sway, because the doctrines of duty and causation still disfavor the imposition of an affirmative duty to prevent injury and disfavor negligence liability for causal actors earlier in time than intentional injurers (this blog, Feb. 9, 2021).

On the question of duty, the instant case is complicated in two respects, one on the law and one on the facts. First, an innkeeper-guest relationship is one in which common law historically does impose an affirmative duty, on the innkeeper for the protection of the guest. Second, insofar as an affirmative duty might exist, it can be predicated on knowledge of risk, which the decedent's mother gave to the motel clerk.

The innkeeper-guest relationship did not get the plaintiffs to the finish line. The purpose of the common law duty is to oblige an innkeeper, like a landlord, to protect the guest from risks the innkeeper might know about, and the guest does not, in the vein of premises liability; or, at the extreme, risks of any nature that an innkeeper might be better positioned to mitigate than a guest can.

The court summarized past cases in which Massachusetts courts recognized an innkeeper-to-guest duty: failure to prevent stabbing by intruder for want of an adequate security system; failure to protect guest from fire set by arsonist; and failure to prevent battery by another guest. All three examples implicate an intermediate intentional, and tortious or criminal actor. But in the first two cases, the causal risks relate to the premises: a security system and fire response. There is no intermediately causal premises risk in the instant case.

The battery case seems more on point, and the court here did not make the distinction plain. But on the facts of that case, the plaintiff was stabbed at an event for which the defendant innkeeper had hired security guards. The case is best understood as a duty voluntarily undertaken by the defendant, and then executed negligently. In one count based on innkeeper-guest duty and one count based on ordinary negligence, the plaintiff complained that the security guards had negligently failed to restrain a drunken patron. The jury returned a generalized plaintiff's verdict that the court concluded was supported by the evidence.

So the problem for the plaintiff-representative in the instant case is that the decedent was not injured by the premises, and the defendant motel voluntarily undertook no duty to protect the decedent beyond the usual duties of an innkeeper. In fact, the innkeeper-guest duty arguably cuts against the plaintiff's position. Were a clerk to violate a guest's privacy by revealing the room number to a requester concealing ill intentions, the motel could be held liable for injury inflicted on the guest by the requester-intruder.

That said, the decedent's mother and wife were understandably frustrated with the clerk's stubbornness, under the circumstances, and their fears were vindicated tragically. The plaintiff's best strategy was to tie the alleged misconduct of the defendant to the responsibilities of an innkeeper, moving the causal focus away from the decedent's intentional act and changing the conversation from negligent failure to act to negligent action. In this vein, the plaintiff alleged not that the clerk necessarily should have revealed the room number, but that, instead of telephoning and giving up, the clerk should have summoned police to conduct a wellness check.

The court did not indulge the plaintiff's theory long enough to parse the details. But the basic problem even with the plaintiff's best gloss on the case is that the mother and wife could have called the police, too, and did not. Indeed, the court, fairly or not, faulted the family for being coy in characterizing the risk: "Indeed, all that is alleged is that [the] mother and wife informed motel employees that [decedent] was at risk of suicide, and asked for his room number so they could assist him. They did not tell the employees that [he] had stated an intention or plan to commit suicide or that he had recently attempted suicide." Perhaps the family feared negative repercussions of police intervention.

The plaintiff's case was buoyed modestly if insufficiently by Massachusetts high court holdings that a university may be held liable for a student's suicide. In 2018, the Supreme Judicial Court ruled that MIT did not owe a duty to a student who committed suicide on the facts of the case (this blog, May 7, 2018). But the court left the door open to a different analysis on different facts, and, the next year, the court allowed a case to go forward against Harvard (this blog, Sept. 30, 2019).

The Appeals Court distinguished the instant case from the Harvard case because the motel did not have enough information to ground an affirmative duty. In the Harvard case, the court looked to "stated plans or intentions to commit suicide." Here, again, the mother and daughter were coy as to the severity of the risk. And, the court added, there was no evidence that anything the decedent said or did suggested suicidal intentions to motel staff. Indeed, while a university knows a lot about its students, sometimes even affirmatively providing mental healthcare, innkeepers, the court opined, "usually are unlikely to know much—if anything—about their guests."

Incidentally, criminal liability for another person's suicide is a different problem. I mention it only because Massachusetts is the state in which Michelle Carter was convicted of involuntary manslaughter in the suicide death of Conrad Roy. A civil case was settled in 2019. Just a couple of weeks ago, I watched The Girl from Plainville (2022), a serial dramatization, and I don't recommend it. Maybe too soon to be reminded that the matter was a tragedy for everyone involved.

The instant case in the Appeals Court is Bonafini v. G6 Hospitality, LLC, No. 20-P-1409 (Sept. 1, 2022) (temporary court posting). Justice Gabrielle R. Wolohojian wrote the opinion of the unanimous panel.

Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide

U.S. CFPB images

The family of a 20-year-old college student who committed suicide has sued the lately notorious Robinhood financial services company.

Filed yesterday in California, the suit has been reported widely (e.g., Fortune), as was the death in the lockdown summer of 2020 (e.g., Financial Times, Forbes).  I feel compelled to mention the case here because, in tragic coincidence, my Torts II class covered suicide in causation just last night.  Hat tip to law student Paul McAlarney, who spied the story at CNBC.  Courthouse News has the complaint. 

In the instant case, decedent Alex Kearns, a sophomore at the University of Nebraska–Lincoln, ran in front of a train while believing mistakenly that he had lost about $730,000 in investments through Robinhood.  The service emailed him to demand a deposit of $178,000 to rectify his negative balance, Fortune explained, without clarifying that he had options in his account that could more than cover the deposit.

I am no investment wiz, but McAlarney said that a representation of negative balance like this is normal in margin trading, and that understanding one's actual position can be "tricky" and "super confusing" for beginners.  Kearns tried three times to reach Robinhood customer service, to no avail; we all know how that goes.

Historically, common law was not friendly to claims of tort liability against actors whose negligence was alleged to have precipitated suicide.  The abrupt and powerfully intentional act of suicide was, and usually still is, regarded as a supervening cause of loss, breaking the chain of legal causation between injury and the conduct of actors earlier in time, and freeing them of legal responsibility.  The rule arose naturally from the social stigma that attached to suicide historically, and, relatedly, the criminalization of the act.

In recent decades, however, the historic common law approach softened.  Understanding of mental health issues diminished the stigmatization of suicide and pushed a wave of decriminalization.  Insofar as suicide remains criminalized or regulated as a civil offense, the rationale today is more often to facilitate mental health intervention than to deter or punish.  Accordingly, courts have evidenced increased willingness to see negligence as a legally cognizable cause in the aggravation of mental illness.

I wrote here on the blog about two cases in the last three years arising in higher education in Massachusetts.  In a case against MIT, in 2018, the Supreme Judicial Court (SJC) held that the defendant university could not be held liable in the suicide of a student, Nguyen, for failure of duty.  However, the Court wrote that it was not rejecting wholesale a university-to-student duty to prevent suicide; rather, on the facts, MIT could not have foreseen the tragedy.  Then in a case against Harvard, in 2019, the Superior Court followed the SJC's lead and refused to dismiss a liability claim in the suicide of a student, Luke Tang (documentary film).  That case is now in discovery (search Middlesex County case no. 1881CV02603).

The civil iteration of the Michelle Carter case, in which Carter, by text message, exhorted teen peer Roy Conrad to commit suicide, would have marked a profound test of the old common law rule, but was settled in 2019.  Pending in the Massachusetts legislature is a bill, "Conrad's Law," that would explicitly criminalize the facilitation of suicide.  Carter was convicted of involuntary manslaughter, and the SJC upheld the conviction as against a First Amendment challenge.  The U.S. Supreme Court denied certioari.

At the end of December, the Sixth Circuit affirmed denial of a Cincinnati school board's motion to dismiss a suit over a third grader's suicide precipitated by bullying.  Professor Alberto Bernabe wrote about the case for his Torts Blog and observed, as to proximate causation, "the court found that the boy’s suicide was plainly foreseeable, especially considering [that] the school’s guidelines on bullying include suicide as a risk."

Tragedy arising from investment losses is not new.  My torts casebook with Professor Marshall Shapo, in the chapter on attenuated duty and causation, noted a mass shooting and suicide by a day trader in 1999.  The Georgia Court of Appeals affirmed summary judgment for the shooter's former employers as against claims by victims.  The court wrote that "the issue of proximate cause is so plain, palpable, and indisputable as to demand summary judgment for the defendants."  The Kearns case relocates the risk to the private home and compounds the matter with investor inexpertise, changes wrought, for better and worse, by the electronic democratization of access to financial markets.

The case is Kearns v. Robinhood Financial LLC, No. 21CV375872 (Cal. Super. Ct. Santa Clara Cty. filed Feb. 8, 2021).

Court refuses to dismiss Harvard in student-suicide suit

The Massachuetts Superior Court, per Judge Michael D. Ricciuti, denied Harvard University's motion to dismiss a negligence claim brought by the parent of a student, Luke Tang, who committed suicide on campus in 2015.  The case comes in the wake of a 2018 Massachusetts Supreme Judicial Court (SJC) decision refusing to allow the Massachusetts Institute of Technology (MIT) to be held responsible for a student's suicide.

Luke Tang lived at Harvard's Lowell House.  (Photo by Carrie Anderson
CC BY-SA 2.0)

In the 2015 case, Nguyen v. MIT, discussed here, the SJC ruled that the university-student relationship does not support a duty in tort law akin to the custodial relationship between a parent and child, or custodian and dependent.  That ruling was consistent with historic and enduring common law norms, which hold that a person's intentional suicide, in some jurisdictions a crime, interrupts the chain of duty and causation that would link the death to any earlier-in-time carelessness.

However, the SJC left open the possibility that a university could be responsible for a suicide if the decedent had been in a "special relationship" with the defendant.  "Special relationship" is a term of art in tort law, referring to the very relationships in which public policy supports a person's expectation of care from another.

In the instant case, Tang v. Harvard College, plaintiff seeks to pin liability on Harvard and its employees through that very allowance for special relationships.  As reported by the Harvard Crimson last year, Tang was known to Harvard as a suicide risk.  Tang had been transported to a hospital after a suicide attempt freshman year.  When he returned to school, he signed an agreement with Harvard that he would stay in counseling with Harvard mental health staff.  Returning to school after the summer, though, Tang failed to keep his appointments, and the complaint alleges that Harvard failed to follow up.

Special relationships in tort law can be created when a medical professional undertakes care of a patient, or when any person voluntarily takes on the responsibility of caring for another, which can be signified by action or contract.  Tang's theory of special relationship resonates in those ways, considering the counseling function of Harvard staff and the agreement that Tang signed with Harvard.

Superior Court Justice Michael D. Ricciuti found sufficient basis to distinguish Nguyen.  Justice Ricciuti wrote, "Harvard's argument to dismiss this case reduces Nguyen to a check-box, and that once a university checks one of the three boxes—a protocol, or if there is none, clinical care, or if that is refused, reaching an emergency contact—its duty ends regardless of how well or poorly the university fulfils its duty. That interpretation cannot be correct."

Justice Ricciuti is himself a 1984 graduate of Harvard Law.  A native of Quincy, Massachusetts, he was in private practice and served as federal prosecutor before being confirmed to the bench.

The case is Tang v. President and Fellows of Harvard College, No. 18-2603 (Mass. Super. Ct. Sept. 9, 2019).  Hat tip @ Massachusetts Lawyers Weekly (pay wall).  Read more at The Harvard Crimson.  For a short time, I will park a copy of Justice Ricciuti's ruling here.

A documentary film about Luke Tang, Looking for Luke, seeks to raise awareness of mental health problems affecting young people.  Here is the trailer.

Mass. supreme court: MIT owed no duty in suicide case

Today the high court of Massachusetts held no duty, as a matter of law, in a wrongful death case of attenuated duty and causation in which the plaintiff sought to hold the Massachusetts Institute of Technology liable in negligence for a struggling student's suicide.  The court left the door open for proof of a special relationship on different facts.

Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018).  The November 7 oral argument in the case is online here.
 
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same.  Rather, the court "must ... take into account a complex mix of competing considerations.  Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."

With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis.  Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,

"degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant."

In discussing the flexibility of this analysis, Judge Learned Hand's famous BPL test made an appearance (a test customarily directed to breach rather than duty), off-setting the gravity of a suicide by probability, and balancing the result against the burden on the university of employing effective preventive measures.  The court also emphasized the dispositive nature of actual knowledge: "Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm."

In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation."  He also strove to partition his mental health treatment from his academic life.

The court upheld summary judgment for the defendant on the tort claims as a matter of law.