012874 Euthanasia and the Law

Fourteen months ago, a 59-year-old railroad machinist named Eugene Bauer was admitted to Long Island's Nassau County Medical Center with cancer of the throat. He was operated on by Dr. Vincent A. Montemarano, the chief surgical resident, and released. Two weeks later, Dec. 2, 1972, Bauer was readmitted; on Dec. 7, he lapsed into a coma and was given 48 hours to live. Sometime between the hours of 3 p.m. and 11p.m. that day, while Dr. Montemarano was on duty in Surgical Ward 3B, Eugene Bauer died. On the death certificate, which Dr. Montemarano signed, the cause of death was listed as cancer. But last week, Dr. Montemarano, 34, went on trial for murder.

Nassau County District Attorney William Cahn charges that Bauer died because the doctor had injected him with a lethal dose of the chemical potassium chloride. "The motive appears to have been a mercy killing," the district attorney declared when the indictment was handed down last June. But last week, as more than 100 prospective jurors were painstakingly questioned, Dr. Montemarano folksy lawyer, J. Russell Clune, made absolutely clear that he was not seeking, the sympathy that might accompany a mercy killing. "It's not a ease of mercy killing," be insisted. "The state must prove a case of murder pure and simple murder."

Traces: The case against Dr. Monteinarano rests heavily on a nurse who reportedly is prepared to testify that she saw the doctor inject the potassium chloride into Bauer's veins. Potassium chloride is commonly used in the treatment of cancer patients to restore the body's chemical balance-so commonly, in fact, that the hospital does not even keep records on its use. The chemical also dissipates rapidly in the body, and when Bauer's body was exhumed for an autopsy six months after his death, no traces of it were found. But the medical examiner did find some other things: extensive cancer of the throat and neck, advanced heart disease, a blood clot in the lungs and extensive pneumonia. For Bauer, he said, "death was imminent."

Accusations of mercy killing, or euthanasia, are common enough, but most of them are made against relatives of a patient, Dr. Montemarano is only the second doctor in American legal history to be tried on charges the prosecution described as a "mercy killing." In 1950, a New Hampshire country doctor Hermann N. Sander, was accused of injecting air into the veins of a terminally ill cancer patient. The trial drew 150 reporters from all over the world and set off an international debate about euthanasia before Dr. Sander was acquitted.

In the quarter century since the Sander trial, not much has changed about either the law or the practice of euthanasia. In its most commonly practiced form- 11 passive euthanasia"-a doctor, often with the family's consent, will simply ignore procedures or medication that could prolong the life of a hopelessly and painfully ill patient. Passive euthanasia is not a crime. A 1969 poll of the Association of American Physicians found that 87 per cent approved of passive euthanasia; more significantly, 80 per cent admitted having practiced it.

"Active euthanasia," on the other hand, is the deliberate ending of a life. That is homicide under the law-however noble the professed motive-which is reason enough that doctors never admit practicing it. "Everyone knows it couldn't be true of Dr. Montemarano," says a nurse's aide who has worked at the hospital with him. "He was known as being very compassionate," In addition, physicians refuse to believe that Dr. Montemarano could have been foolish enough to endanger his career by ending the life of a patient whose death was surely only hours away. But what District Attorney Cahn must prove is not foolishness-or even faulty medical judgment. What he must prove beyond a reasonable doubt is that Dr. Montemarano murdered Eugene Bauer.