Shortly after the Montana Supreme Court upheld a terminally ill patient's constitutional right to seek life-ending medication in December 2009, Missoula physician Eric Kress received a visit from a man with advanced amyotrophic lateral sclerosis, or ALS. The man was adamant about receiving aid in dying. He couldn't walk. He could hardly speak above a whisper. His body, once "200 pounds of muscle," Kress says, had been reduced to "120 pounds of skin and bones."
"He couldn't pound the table," Kress says. "But emotionally, with his eyes, he was pounding the table. His former self might have taken a swing at me."
Kress, a family physician at Western Montana Clinic and the former medical director at Hospice of Missoula, declined to write the prescription. Several weeks later, according to Kress, the man took his own life by putting stockpiled narcotics down his feeding tube.
"I felt a sense of failure and cowardice that I had not acted in that patient's best interests," Kress says. "I was more worried about me than I was the patient when I made that decision. Emotionally, for me, I was ashamed of it, that I hadn't written the prescription for him."
Kress shared his story March 26 before the Senate Judiciary Committee while testifying against House Bill 505, a measure that would level up to 10 years of prison time or as much as $50,000 in fines against any Montana physician who prescribes life-ending medication. During that same testimony, Kress became the first Montana physician to admit he has since written lethal prescriptions for terminally ill patients. His only regret, he says, is denying that first request.
"To be quite honest, I'm proud of what I've done," Kress says. "I'm not ashamed of this."
The Montana Supreme Court's decision in Baxter v. Montana just over three years ago did little to clarify the issue of aid in dying in the state. While the ruling affirms that physician aid in dying is not against public policy, it only offers participating physicians a legal defense against charges of homicide. Republicans have loudly decried aid in dying as a form of suicide, even murder, and while attempts to enact an outright ban have proven unsuccessful, so have efforts by groups like the nonprofit Compassion and Choices to pass legislation defending the practice.
Kress says he's written aid in dying prescriptions for three terminally ill patients since 2009two with esophageal cancer and another with advanced ALS. "They all knew they weren't going to live forever, and wanted to be in control of their own situation," he says, adding their desires were "crystal clear." Each underwent examinations from multiple physicians to determine that they were mentally competent and indeed terminal. And each had to answer one important question: If the disease were gone tomorrow, would the request for life-ending medication still stand? All answered no, indicating to Kress that it wasn't a question of depression.
Finally, all three were required to sign consent forms stating, among other things, they would administer the medication themselves.
Other patients have asked Kress about life-ending medication, but none met the required criteria. Some people are so close to death already that their pain can be managed through hospice care, Kress says. Others find the medication too costlyabout $1,000 for the necessary dosage of the barbiturate Secanoland the challenge of finding a pharmacy willing to fill the prescription too daunting. Still, for Kress, the lines between palliative care and aid in dying have become blurred.
"This is palliative care, no question," Kress says. "Somebody is going to die, and you're alleviating their symptoms in the dying process. That's palliative care."
Kress' testimony brought new depth to the aid in dying debate this legislative session, an as yet unheard from voice in the battle over terminally ill patients' rights. For proponents of aid in dying, his willingness to step forward was a "game-changer," says Compassion and Choices Montana campaign manager Emily Bentley.
"Before Dr. Kress came out, our opponents liked to say the Baxter decision made it a 'gray area,'" Bentley says. "Now, with Dr. Kress coming out, we know it is legal and doctors are providing this. Something like HB 505 isn't just theoretically clarifying something. They're actually stripping away a right that currently exists."
HB 505, sponsored by Rep. Krayton Kerns, R-Laurel, failed to pass committee April 3. It remains stalled in committee.
Kress says he did have reservations about "jumping into the fray." Aid in dying faces organized opposition from groups like Montanans Against Assisted Suicide, which collected 4,000 signatures from those who support its cause this year. Even those in the healthcare community are divided𤹈 Montana physicians banded together in support of HB 505 last month.
Shortly after the Judiciary hearing, Margaret Dore, a Seattle attorney who has fought against aid in dying since Washington state legalized it in 2008, wrote to Montana senators chastising Kress. "If [Kress] is not prosecuted, or if the prosecution fails," Dore wrote, "assisted suicides will thereby be encouraged and ... there will be a push to expand the practice to less compelling cases, for example, persons with treatable diabetes."
Kress anticipated backlash when he decided to share his story. But his resolve is strengthened, he says, by the memory of the last words spoken to him by his first aid in dying patient, who asked Kress to do what he could to "further the cause." Now Kress feels he has to "own this decision to come forward," meaning he's in the political debate for the long-haul.
"I'm proud of this. The patients were very grateful to me," Kress says. "So why should I go to jail for it?"