March 23, 2005

I Disagree

Well, Ken once remarked that he and I used the same brain, but on different days. But I've finally found something that we disagree on. I was just reading his post on the Terri Schiavo case--something I've been discussing with people lately anyway--and I have to say I'm a little surprised at his conclusion. Not so much because he made it, but because I think it's got a little bit of misinformation in it. (Sorry, buddy.)

Let's start with what we both agree on. First, Terri Schiavo is in a vegetative state. An article just published in the New England Journal of Medicine by Dr. Timothy Quill, professor of medicine, psychiatry, and medical humanities and the director of the Center for Palliative Care and Clinical Ethics at the University of Rochester Medical Center, Rochester, N.Y. confirms this:

On February 25, 1990, Terri Schiavo had a cardiac arrest, triggered by extreme hypokalemia brought on by an eating disorder. As a result, severe hypoxic–ischemic encephalopathy developed, and during the subsequent months, she exhibited no evidence of higher cortical function. Computed tomographic scans of her brain eventually showed severe atrophy of her cerebral hemispheres, and her electroencephalograms have been flat, indicating no functional activity of the cerebral cortex. Her neurologic examinations have been indicative of a persistent vegetative state, which includes periods of wakefulness alternating with sleep, some reflexive responses to light and noise, and some basic gag and swallowing responses,
but no signs of emotion, willful activity, or cognition.

In addition, he points out that there has never been a case in which someone with Ms. Schiavo's condition has ever "come out of it." There have been a few cases where the patients did come out of a coma, but none showed the brain deterioration that she suffered, and they were all much shorter "coma" periods. Remember, this woman has been in this condition for 15 years. The overwhelming medical evidence seems clear: she will never recover.

I also agree with Ken that she never wrote a living will, or produced any written document stating her wishes should she end up as she has. (But, I should point out that this would not necessarily indicate thoughts one way or the other, as Schiavo was a young woman without children at the time of the incident, and few people consider a living will at that age.)

But I think that's where we go our separate ways.

Ken, like so many other people I've heard, call the husband "shady," or "greedy." I just don't think there's any evidence to support that, simply supposition. If anything, Terri's parents are the ones that come off greedy. Let's look at what we can prove:

1) Michael Schiavo spent three years trying everything he could, including experimental treatments, to improve his wife's condition. Three years.

2) Yes, Schiavo did win a malpractice suit. He received $300,000 for himself, but $750,000 went to a trust earmarked for Terri's care.

3) Schiavo, and Terri's parents were essentially working as a team until shortly after the money in the above decision was awarded. While it is still unclear what exactly was said, Schiavo claimed that Terri's parents, the Schindlers, demanded that he share the award with them. The court backed this up:
It is clear to this court that such severance was predicated on money and the fact that Mr. Schiavo was unwilling to equally divide his loss of consortium award (the $300,000) with Mr. And Mrs. Schindler.

Since a significant amount of monies had been set aside for Terri's care, and since Schiavo filed and pursued the lawsuit, and would seem to have rightfully received the money, I have to wonder: who is the "greedy" party here?

4) For those who would argue that Schiavo wants his wife to die to get his hands on her money, and that somehow the Schindlers must be the selfless ones since they are adamant about keeping Terri alive, let me point out one fact that should be obvious. If Terri dies, yes, Michael, as her spouse, would get something. However, if she stays alive, and--as the Schindlers have been pushing for--Schiavo divorces her and "moves on with his life," guess who then becomes the sole heirs? In addition, in 1994, the Schindler's petitioned to have Michael removed as Terri's guardian. The Schindlers later "dismissed that petition citing financial considerations as their motivation." I'm just saying...There's plenty of finger pointing to be done on both sides.

5) A quick note on this issue of Michael Schiavo living with another woman and having children with her. Do I need to point out that for the last fifteen years...Let me repeat that...fifteen years, the man has been married to a woman who requires constant care, who cannot return his love, show him affection, or in any way engage in a meaningful relationship? Anyone want to cast the first stone?

Apart from these points, the case really comes down to one thing: what are the patient's wishes? And this is where, I think, everybody is getting it wrong. Ken says "this isn't a right-to-die case," but I disagree. That's exactly what it is. According to the law, anyway. It's true that Schiavo left no written instructions. However (and this is a BIG however):
The relevant Florida statute requires “clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.” Since there is no societal consensus about whether a feeding tube is in the “best interest” of a patient in a persistent vegetative state, the main legal question to be addressed is that of Terri Schiavo’s wishes.
In other words, the court has to try to figure out what the patient herself would want. The "rule of thumb" used in the Karen Ann Quinlan case in the 1970s stated something along the lines of: If the patient were to awaken for 15 minutes, but knew that she would then return to her previous state, what would she choose? In this case, the court DID make a determination as to Terri's wishes. After listening to witnesses from both sides (no, it's not just the husband saying she would want to die), the court decided that there was "clear and convincing evidence" that Terri Schiavo would not choose to be kept alive by machines. Now, if you'll permit me a small digression...

I just want to point out that the witnesses offered by Michael Schiavo could not be impeached under cross-examination, and their statements were reasonable and timely. However, (yes, another however) the evidence offered by the Schindlers included an alleged statement by an eleven-year old Terri, and another witness who claimed that Terri made statements while watching the Karen Ann Quinlan case, except that upon examination, the statements were apparently made six years after Quinlan's death, and which, I'm guessing, the court found suspect. (Mainly because the judge said as much, noting: "The court further notes that this witness had quite specific memory during trial, but much less memory a few weeks earlier on deposition." Ouch.)

Back to the matter at hand. The court's decision was upheld by the Second District Appeals Court. As a matter of law, the court has found that Terri Schiavo's desire was to NOT be kept alive by extraordinary means. That's pretty much the end of the story. After all, that's the whole point. No matter what you think of Michael Schiavo or the Schindlers, legally, this case has been decided. There appears to me no miscarriage of justice, apart from a manipulative press and a pandering congress, both of which had absolutely no business getting involved. In the end, folks, that's really what sickens me.


  1. Two points.

    1) The judge you refer to was mistaken about the date of Karen Ann Quinlan's death. She died after the alleged conversation, not before.

    He claims that wouldn't have changed his decision about the witnesses credibility, but I think that's impossible to know with certainty.

    2) WRT Congress getting involved, although the opinion you express is quite common, I believe it's incorrect. This case is a simple habeas corpus decision precisely the same as death penalty cases which are routinely reviewed by federal courts. There is absolutely nothing wrong with Congress getting involved, and in fact Article III of the Constitution expressly grants them that right.

    As to whether or not Terry Schiavo would actually want to die, I'll leave that decision to greater minds than mine.

  2. Wow! I barely have the thing up, and you're responding already. You know I respect your research, but I'm going to have to disagree with you as well. Judge Greer was right in finding the testimony questionable, but for the wrong reason. First of all, Mrs. Schindler based her testimony on a statement that she claimed her daughter made around age 18. When shown newspaper clippings, she agreed the Terri was actually around 11. Diane Meyer's testimony, the one Greer is accused of making the mistake on, is still suspect because of her "sudden memory improvement" between deposition and trial, but regardless, what she testified was that "She told me that she did not approve of what was going on or what happened in the Karen Ann Quinlan case." She is talking here about the parent's decision to remove the respirator. (I believe the Quinlans never removed the feeding tube.) This event, the "what was going on" under discussion, took place in 1976. Judge Greer may have been wrong about her death, but Meyer's timing is still clearly off. Schiavo would have been about 12 years old, the same age as she was when she apparently said something similar to her mother.

    I think Meyer's claim of the summer of 1982 is simply a date of convenience. Schiavo was born in December of 1963. In the summer of 1982, she would have been...yeah, 18. Legally speaking, an adult. Now her statement carries much more weight than that of a minor, doesn't it? Surprise, surprise, surprise.

    As far as the opinon goes, I'm not against congression intervention per se, it's the perceived self-serving intention and lack of justification behind their involvement that offends me.

    By the way, I thought it was the Judiciary act of 1789, not the Constitution that grants Congress the right to get involved. And even then, according to Findlaw, " That its [Congress's] power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution nor from the cases."

    And as to habeas corpus, I'm not sure this IS precisely the same as a death penalty case. I'm no expert, so please correct me if I'm wrong, but habeas corpus is used in criminal cases to allow federal courts to review cases in which the state courts have violated federal law or the Constitution. It deals with prisoners, those in custody. This is not a criminal matter. What violation is occurring here? Jeb Bush's 2004 Terri's Law, which I thought was the result of a version of a writ of habeas corpus by the Florida legislature, was struck down as unconstitutional by the Florida Supreme Court, the U.S. Supreme Court has refused to hear the case, and I'm not seeing anything in the years of previous court decisions that would indicate some justification for a habeas corpus other that the fact that some congresspeople don't like the outcome. (I know they have claimed violation of due process, which is why I mentioned all the previous cases. And I've also seen the argument that Terri was not represented in trial because the lawyer was hired by Michael, the argument being that their "interests are adverse." Yet that's circular logic because it assumes what is at issue--that removing the feeding tube is NOT in Terri's interest. And the courts have ruled that it is. But I've tracked down a copy of the document, and I'll try to read it through soon.)

    And as to whether or not she would actually want to die, the point is moot. Legally, the decision has been made.

  3. Just for fun, I did a lexis-nexis search for "Karen Ann Quinlan." Guess how many entries came back for the summer of 1982? Not a one.

    Yet according to Diane Meyer, it was big news.

  4. "This case is a simple habeas corpus decision precisely the same as death penalty cases which are routinely reviewed by federal courts."

    Nope; in habeas, the federal court is not allowed to review the facts de novo. There are very limited grounds on which a habeas appeal can be granted. The most recent Terri's law gave the federal court the right (which it chose not to exercise) to conduct a whole new trial, hear new evidence, and come to new conclusions about the evidence. Not so in habeas.

    (And dead serious is right, habeas is only for those who allege that the government is wrongly holding them in custody in violation of a constitutional right.)

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