Judge Tosses Lawsuit Seeking Fatal Drugs For Terminally Ill

San Diego Superior Court Judge Gregory Pollack said his court is not unsympathetic to their plight but lawmakers — not a judge — would need to change the law barring such prescriptions.

Pollack said in his written ruling that the current law that makes it a felony to assist a suicide in any way is constitutional and so he does not have the power to suspend its enforcement.

"The unfortunate scenario alleged in the complaint cries out for a legislative fix, not a judicial nix, of Penal Code 401," Pollack wrote.

A bill seeking such a right for doctors stalled earlier this month in the Legislature.

One plaintiff, Christy O'Donnell, a Santa Clarita mom who was given only months to live, said the lawsuit likely was her last chance at avoiding a slow, painful death. O'Donnell said she is morphine intolerant.

After a hearing Friday, when the judge strongly indicated he planned to dismiss the case, O'Donnell said the likely outcome "saddens me the most because I know there is going to be people watching their wives, their husbands, their children or their moms suffer in palliative sedation.

"While I am no medical expert, I can tell you with certainty that there is no doctor that can tell you that they can take away all of your pain from every person all of the time," she said.

Attorneys for the plaintiffs, who include a San Diego doctor, plan to appeal.

The lawsuit asked the court to declare the law unconstitutional as applied to doctors who prescribe fatal medication for mentally competent, terminally ill adults to administer to themselves when their suffering has become unbearable.

Pollack said the California law dates back to 1874. He noted that most states ban assisted suicide and the U.S. Supreme Court has supported those bans, distinguishing between letting a patient die and making a patient die, he said.

Pollack also argued that lifting such a ban runs the unintended risk of indicating that suicide is an acceptable option when life get tough. He said that since taking fatal medication is quicker and cheaper than the slow care of the terminally ill, there is the potential for abuse by "greedy heirs-in-waiting, cost containment strategies, impulse decision-making, etc."

Attorneys for the plaintiffs said Oregon, where doctors have been able to legally prescribe fatal medication for more than 20 years for terminally ill patients, has shown that safeguards can be put in place to prevent such abuses. The lawyers added that the process is meant to aid the dying and ease their suffering.

The plaintiffs said it should not be equated with suicide.

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