On March 31st, Montana’s state senate committee voted down a controversial bill (H.B. 477) that would have criminalized doctors who prescribed life-ending drugs to their terminally ill patients. The Montana Supreme Court legalized doctor-assisted suicide (“euthanasia”) back in 2009 by allowing for mentally competent adults to be prescribed fatal doses of medication. Additionally, Senate Bill 142 was signed by Montana’s governor last week, which would codify the “right to try” drugs that are still in the clinical trials stage- thus joining the ranks of Arizona, Arkansas, Colorado, Indiana, Louisiana, Michigan, Mississippi, Missouri, South Dakota, Utah, Virginia and Wyoming.
Louisiana’s Prohibition on Euthanasia and the Right to Try Law
Unlike the states of Oregon, New Mexico, Vermont, Washington and Montana, Louisiana law explicitly prohibits doctor-assisted suicide. See Louisiana Revised Statutes 40:1299.58.10. However, Louisiana law does allow the withholding of “life sustaining procedures,” which would not constitute euthanasia.
Additionally, while it is unlikely Louisiana will legalize doctor-assisted suicide any time soon, the state has embraced the progressive concept of “right to try.” In 2014, Louisiana enacted H.B. 891, which allows patients with terminal illness to try drug treatments that have not yet been approved by the federal Food and Drug Administration. Patients are therefore allowed to request to be treated with drugs that have passed their first clinical trials stage. The law allows doctors, hospitals and manufacturers to bypass the FDA and protect them from prosecution, even if they request medication from a drug maker in another state. Doctors covered by the law may also bypass the FDA and communicate directly with drug manufacturers to discuss what risks exist. Patients and advocates claim that this could give people access to potentially life-saving treatments while critics argue that unapproved drugs endanger the patient.
At present, government bureaucracy ensures that it may take more than a decade before a drug or treatment is approved, guaranteeing that many patients will die before a “cure” for their disease is discovered.
Legally speaking, H.B. 891 would theoretically protect doctors from being liable for malpractice if they provide a drug or treatment that is not FDA approved. This is different from off-label prescriptions, which are not illegal under federal law. However, it should be noted that doctors might still be held liable for negligence and therefore malpractice, if they did not use sound judgments in prescribing a clinical trial drug for a specific ailment.
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