Rx For Death

By NANCY GIBBS

Death abides with all fanatics, not least because they are so often willing to risk it for their cause. It presses close around Jack Kevorkian, the doctor who has made death his specialty, closer still last week as he returned to the practice that so often had seemed destined to land him in jail. "To go to jail is the ultimate slavery," he told TIME. "If I have lost my freedom, I have lost something more valuable than life. Therefore, continuing life becomes pointless. It's as simple as that." Dramatic self-negation would be a fitting exit for Death's Impresario. But last week Kevorkian made an uncharacteristically humble reappearance with suicide No. 16. By underplaying his hand, he may have found a way to avoid jail -- and prolong his controversial crusade.

On May 16, when Kevorkian attended the suicide of Ronald Mansur, a Realtor with bone and lung cancer, he did not bring a video camera, and when it was over, he did not call a press conference. There was no suicide note; there were no relatives looking on and no explanations. Just an anonymous call to 911, telling police where to find the body -- in effect, telling the State of Michigan to go to hell.

The last time Kevorkian hauled out his carbon monoxide mask, Michigan's lawmakers decided it was time to shut down his practice. In February the state declared his specialty a felony punishable by up to four years in jail and a $2,000 fine. Three previous attempts to charge the doctor with murder had failed, and his opponents relished the chance to make something stick. The A.C.L.U. challenged the law, and Kevorkian promised to postpone any further medicide until after the court reached a decision. But apparently he ran out of patience.

Police arrived at a drab cinder-block real-estate office to find Mansur dressed in slippers and wrapped in a white-knit blanket; he was slumped in an easy chair with the telltale mask strapped to his face. A string tied to the middle finger of his left hand was connected to a clip on the tubes running from two cylinders labeled CARBON MONOXIDE. The body was gaunt, the skin yellow-green. For the past few months, Mansur had been too sick to drive and carried a morphine pump around with him to combat the pain. "He was in hell," says longtime friend Donna Cady. "He would cry on the phone." She adds, "I know that when he put that mask on his face he had his finger sticking up in the air to say screw you all for the laws that made me suffer like this."

That would be a gesture familiar to Dr. Kevorkian, who has made defiance of the law a passion second only to suicide. "When the law itself is intrinsically immoral," says Kevorkian's irrepressible mouthpiece, lawyer Geoffrey Fieger, "there is a greater duty to violate the law." Yet this time around Kevorkian merely tiptoed past it. Fieger says the doctor isn't taking any credit for helping a desperate man die. He just wanted to watch.

The police arrested him anyway, but Kevorkian refused to cooperate. "He will not tell us what happened inside the building," says inspector Gerald Stewart, who heads the major-crimes division of the Detroit police department. "We will have to establish that someone did assist in a suicide, and it's kind of difficult." After two hours, during which he watched the Knicks- Hornets play-off game, police released Kevorkian into Fieger's custody.

Kevorkian's new stealth strategy may simply be a means of self-preservation. Indeed, his chances of avoiding prison improved enormously at the end of the week, when Judge Cynthia Stephens, citing a technicality, struck down the Michigan law that threatened to curtail Kevorkian's efforts. Stephens also found that two terminally ill plaintiffs in the A.C.L.U. case had a right to die. She wrote, "This court cannot envisage a more fundamental right than the right to self-determination.' '

The ruling left Kevorkian's opponents flabbergasted. "If I were a gambler, I'd bet that Kevorkian will kill someone tomorrow," said local Operation Rescue activist Lynn Mills after hearing the decision. "He's really out of control."

Over the years Kevorkian has been generous to his adversaries in the church, - the press, the medical profession, even the euthanasia movement. Every time he speaks or writes he hands them ammunition to dismiss him as a psychopath. "If I were Satan and I was helping a suffering person end his life, would that make a difference?" he asks. "Any person who does this is going to have an image problem." That larger-than-death image grew with each story of his early experiments transfusing blood from cadavers to live patients, his paintings of comas and fevers, his bright-eyed enthusiasm for his "Mercitron" machines. With his deadly humor and his face stretched tight around his skull, he has become a walking advertisement for designer death.

The Mansur case, like those that preceded it, captures the worst fears of opponents of doctor-assisted suicide. By operating outside the law, they say, doctors like Kevorkian go unregulated, unsupervised, abiding only by those safeguards they impose on themselves. They alone make judgments about the patient's state of mind; about what means, short of death, might relieve the suffering. They transform the image of the doctor from pure, emphatic healer to something more ambiguous, even sinister, whose purpose at the patient's bedside is no longer clear.

But in the eyes even of some who disagree with his methods, Kevorkian has become the devil that doctors deserve. Arthur Caplan, director of the University of Minnesota's Center for Biomedical Ethics, puts it succinctly. "I'll give him this," he says. "He tells us exactly where the health- care system stinks." Even some doctors reluctantly agree. "A significant percent of the American public sees Kevorkian as a reasonable alternative to modern medicine," says professor George Annas of Boston University's School of Medicine. "He's a total indictment of the way we treat dying patients in hospitals and at home. We don't treat them well, and they know it."

This mistreatment, he says, is a combination of deceit, insensitivity and neglect. "First we don't tell them they are dying. We do tell them their diagnosis and all the alternative treatments available. But we don't tell them their prognosis. We tell them 'You have cancer, and you can have surgery, radiation, chemotherapy, or all three together, or even any two.' We don't tell them that no matter what we do, it's almost certain they are going to die soon."

Worse, he says, doctors ignore their patient's suffering. "Up to 90% of patients die in too much pain. Some doctors actually argue that their patients ) are going to get addicted. But they can't have thought about it for more than two minutes to say something like that. The vast majority simply don't know how to treat pain, and they don't think it's important. They want to cure the person. Death is still seen as the enemy. And that's what Kevorkian throws in their face. What he says is, 'Some people want death, and I am going to give it to them.' "

Finally, Annas says, "we more or less abandon dying patients. When there is nothing more medicine can offer, we turn them over to the nursing staff, and we don't see them anymore."

Faced with such prospects, is it any wonder Kevorkian has hundreds of letters from people who want him to help them die?

When people are asked how they wish to die, most respond something like this: quickly, painlessly, at home, surrounded by family and friends. Ask them how they expect to die, and the fear emerges: in the hospital, all alone, on a machine, in pain. What Kevorkian claims to offer patients is a chance to control the circumstances of their death -- something which, for all the new laws and heightened awareness of recent years, many hospitals and doctors still may fail to do.

Kevorkian knows firsthand about loss of control. "Our mother suffered from cancer," says his sister Margo Janus. "I saw the ravages right up to the end. Her mind was sound, but her body was gone. My brother's option would have been more moral than all the Demerol that they poured into her, to the point that her body was all black and blue from the needle marks. She was in a coma, and she weighed only 70 lbs. Even then I said to the doctor, 'This isn't right, to keep her on IV,' but he shrugged his shoulder and said, 'I'm bound by my oath to do that.' "

When the Supreme Court ruled in 1990 that Nancy Cruzan's parents could remove the feeding tube that was keeping their comatose daughter alive, the Justices affirmed the growing belief that there was no virtue in heroically prolonging life against a patient's wishes. Since then, doctors have invented guidelines, ethicists have organized seminars, and Congress has passed the Patient Self-Determination Act, requiring hospitals to tell people about their right to control their treatment through living wills and powers of attorney. And yet every day in hospitals across the country, patients and their families are learning that, for all the new legal options and heightened awareness, once inside a hospital, there is virtually nothing a patient or a family can do to make dying simple.

When Susan Evans of the University of Pennsylvania's Annenberg School for Communication held focus groups about living wills, she uncovered a deep mistrust between doctors and patients around the subject of dying. Doctors think patients don't want to talk about it; patients think doctors lack the time and training to do so. Some are cynical about doctors' motives. "The longer I am on a machine," one patient said, "the more money they make."

Surveys of doctors themselves show how many are unaware of their patients' options or unwilling to respect them. Many health-care workers knew little about new laws that allowed them to withhold or withdraw machines like respirators and kidney machines or even feeding tubes. Many rejected the idea that once a treatment is started, it can still be dropped, even though the law upholds a patient's right to do so. Though the courts have recognized the right of patients to refuse food and water, 42% of health-care workers rejected that option.

Even when patients go to the trouble of expressing their wishes, the doctor's values may prevail. One study found that in 25 of 71 cases, when patients were moved from nursing homes to hospitals, their living wills never made it onto their hospital charts. "It's easy to say the patient doesn't really understand because he's never been in this situation before and therefore doesn't know what the treatment is all about," says Dr. David Orentlicher, a professor of medicine at Northwestern University. "It's also easy to say to a relative that the patient never really anticipated in his living will this specific situation."

And if the doctor's values don't prevail over the patient's, the families' often will. Given the anguish at the deathbed, it is not surprising that patients and relatives may argue over treatment decisions -- or that doctors often side with the family. "The law is designed to give preference to living wills over the wishes of relatives," says Robert Risley, a Los Angeles attorney who drafted the state's initiative to legalize doctor- assisted suicide. "But as a practical matter it throws the health-care provider into a dilemma if there is a conflict."

The fear of litigation haunts every aspect of treatment. Says Curtis Harris, a specialist in endocrinology and president of the 22,000-member American Academy of Medical Ethics: "I have seen patients that were clearly within the last hours of life and no one could do anything and a white knight son comes in from out of town and says, 'If you don't do everything you can to save her, I'm going to sue your socks off.' " Dr. John Ely, a professor at the University of Iowa College of Medicine says there has never been a successful suit against a physician who gave treatment in accordance with family wishes and against the patient's wishes. "That's because the patients aren't there," he says. "They are either incompetent or they have already died."

Suicide, the unpunishable crime, has always posed a challenge to societies that want to deter it. Under English common law, suicide was a felony punishable by burying the body by a public highway with a stake driven through the heart, to keep the spirit from wandering. It is no longer a crime in the U.S., but assisting in one is illegal in more than 20 states. No one knows how often doctors write the prescription and whisper the recipe for a deadly overdose; but one informal survey of internists last year found that one in five say they have helped cause the death of a patient. Poll after poll shows that as many as half of Americans favor doctors doing so.

Doctors who work with AIDS patients in particular are aware of the underground system that provides the information and the means for suicide. "You have to understand what it is I see," says a Los Angeles doctor, who has prescribed medication that he knew would likely end up killing his patient. "I see people in agony. Most of my patients are pretty sophisticated. They know the exact dosage that will kill them. By God, if someone is dying, far be it from me to say 'Hey, tough it out.' "

But even physicians who spend all their days with the terminally ill are divided over Kevorkian's answer to the problem of pain. Some may respect the patients' decision to kill themselves but draw the line doing it for them. To withdraw treatment merely allows the disease to do the killing. A lethal injection is altogether different. "Medicine is a profession dedicated to healing," the American Medical Association has declared. "Its tools should not be used to kill people."

So far every effort to move the practice out of the legal half-light runs into practical and philosophical trouble. A good law is hard to write, harder still to enforce and easy to abuse. First in Washington and last year in California, voters turned down initiatives that would have legalized assisted suicide if a patient wrote out a "death directive" that was witnessed by at least two people who did not stand to benefit from the death. Doctors would need independent confirmation that a patient had six months or less left -- a judgment that is notoriously unreliable. "It's naive to believe it can be regulated," notes ethicist Daniel Callahan of the Hastings Center in Briarcliff Manor, New York. "There's basically no way you can regulate something that takes place in private."

As proof, ethicists point to the world's euthanasia laboratory, the Netherlands, where for almost 20 years the courts have not convicted doctors who assist in suicides at the explicit request of the patient. Last February, the Dutch parliament moved to give doctors the actual right to do so -- if they follow strict guidelines for second opinions. Yet a 1991 study found that in one year more than 1,000 Dutch patients who were not capable of giving consent died at their doctors' hands.

That finding fueled the fears of ethicists who believe that legal assisted suicide could become an instrument to meet social or economic goals, even "altruism." For example, people over 65 spend 3 1/2 times as much on health care as younger people. "It would be a terrible burden to put on the disabled, the dying and the weakened elderly, especially at a time when there is enormous pressure to cut medical costs," says Father Richard McCormick, professor of Christian ethics at the University of Notre Dame. "They would constantly ask themselves, 'Should I ask for it, is now the time?' "

As the most prominent "obitiatrist," which is what he would like to call death specialists, Kevorkian has been outspoken about his safeguards. "You act only after it is absolutely justifiable," he insists. "The patient must be mentally competent, the disease incurable." The trouble is that he has trouble meeting his own standards. Over the years, when he has called the doctors and psychiatrists of the people he was working with, they have said they would have nothing to do with him. "Now that's ethical?" he asks. "If doctors won't cooperate, what do you expect me to do? You think I'm going to let the patient suffer because they don't consult?"

But if his adversaries are right, one recent case shreds Kevorkian's safety net. In February, Kevorkian assisted in the suicide of Hugh Gale, 70, an emphysema patient who may, at the last minute, have changed his mind. ^ According to one version of the report that Kevorkian wrote, about 45 seconds after putting on the carbon-monoxide mask, Gale became flushed, agitated, saying "Take it off!" The mask was immediately replaced with oxygen, which helped calm him down. "The patient wanted to continue," the report states. "After about 20 minutes, with nasal oxygen continuing, the mask was replaced over his nose and mouth, and he again pulled the clip off the crimped tubing. In about 30 to 35 seconds he again flushed, became agitated with moderate hyperpnea ((rapid or deep breathing)); and immediately after saying "Take it off!" once again, he fell into unconsciousness. The mask was then left in place . . . Heartbeat was undetectable about 3 minutes after last breath." Kevorkian's lawyer says the report was an erroneous draft. The prosecutor declined to press murder charges.

In fact, by his own, self-imposed rules, Kevorkian may have gone too far. In an article in the American Journal of Forensic Psychiatry last year, Kevorkian sketched a hypothetical example of how a patient, "Wanda Endittal," and her doctors, "Will B. Reddy," "Frieda Blaime" and "Dewey Ledder" should proceed before a suicide: "If in any of her reviews, Wanda manifests any degree of ambivalence, hesitancy or outright doubt with regard to her original decision, the entire process is stopped immediately and Wanda is no longer -- and can never again be -- a candidate for medicide in the state of Michigan."

Kevorkian's opponents also charge that without safeguards and consultations and thorough psychiatric evaluations, patients may seek out suicide not because of their disease, but because of their despair. Recognizing depression in dying patients is hard, since the culture ties the two together. Its symptoms of fatigue, loss of appetite, aches and pains mimic those of advanced cancer. "What Kevorkian's doing is killing people because they're depressed," says James Bopp Jr., an Indiana attorney who is president of the National Legal Center for the Medically Dependent and Disabled. "But depression is curable. He takes absolutely no account of this. He's not qualified to diagnose depression nor is he qualified to treat it."

Kevorkian says that he always tries to talk people who come to him out of killing themselves. But some circumstances, he believes, produce the mental anguish that may justify suicide. "You can't dope up a quadriplegic," he argues. "There's no pain to alleviate, but the anguish in the head is immense, especially after five or 10 years of lying on your back looking up at the ceiling." He says he would love to debate the critics who charge that he is too hasty in deciding who may die. "I will argue with them if they will allow themselves to be strapped to a wheelchair for 72 hours so they can't move, and they are catheterized and they are placed on the toilet and fed and bathed. Then they can sit in a chair and debate with me."

Somewhere between the prospect of a slow death in intensive care and a quick death at the hands of a doctor lies the vast middle ground. It is this middle ground, his critics charge, that Kevorkian in his single-minded focus on death, too often fails to explore. "Our experience says the great majority of the time these people are lonely, isolated and actually in need of better medical care rather than somebody to euthanatize them," says Harris of the American Academy of Medical Ethics.

A few months ago, if asked about Dr. Kevorkian, Solomon Mirin, 81, of Boca Raton, Florida, would have gladly joined in the crusade. "There are too many sick and hurting people in pain, with no quality of life, just waiting to die." But by Jan. 12, his thinking had changed forever. That was the day his wife died.

Just before Christmas, Maxine Mirin began to complain about being tired all the time. On Christmas Day, she was diagnosed with acute myeloid leukemia, and doctors gave her one week to live. She lasted for two. That was all the time it took, Mirin said, to "come 180 degrees in my attitude. I can still intellectualize why people seek out a person like Kevorkian. But I've come to understand that the lives of even the terminally ill are precious and matter, right up to the last second of breath. There is such a thing as dying with grace, dignity, compassion and support, and there are alternatives to the kind of suicide Kevorkian proposes."

The alternative was a hospice in Atlanta, where the Mirins' nephew lived and where they had already purchased their grave sites. Metro Hospice brought to their nephew's home a wheelchair, hospital bed, special padding, oxygen. They provided care and pain medication during Maxine's last four days. "She was not able to talk, but she was able to hold her hand out to me. She knew I was there and that I loved her and valued her life." Mirin was charged "not even 10 cents" for the service; it was all covered by Medicare.

In the past five years, hospitals have recognized the need to set up hospices, but "hospice doctors are considered to be on the margin of medical practice," says Annas. "They are not thought of as real doctors because they don't try to cure people, they just help them die. So many physicians either don't refer patients to hospices or wait until the last week of life before they do it."

Given the ruling last week, Kevorkian seems to have the upper hand -- for the moment. "As a practical matter he may now be untouchable unless a new law is passed and then we start all over again," says University of Michigan law professor Yale Kamisar. "He now has the police and prosecutors off-balance." But they would love to take him on. "Every person from the Governor on down has been attacked personally about being a Nazi or a member of a right-wing organization," says Oakland County prosecutor Richard Thompson. "He's basically thumbed his nose at law enforcement, in part because he feels he has public support."

As for the doctor himself, he seems to take some satisfaction in having done his small part. "It's unstoppable," he says. "It may not happen in my lifetime but my opponents are going to lose. There's a lot of human misery out there."

With reporting by Jon D. Hull/Royal Oak, Elaine Lafferty/Los Angeles and Priscilla Painton/New York, with other bureaus