Terri Schiavo

In contemplating the Schiavo case circus, the trick is to isolate the real questions from the claims and counterclaims.  Fortunately, there was such exhaustive coverage that it’s not too hard to list the most important issues that emerged:

*  There was no one to speak for Terri.
*  Terri was deprived of Due Process, therefore Congress had to step in.
*  Michael Schiavo had moved on, started a new family, and was neglecting Terri.
*  Underlying everything was the issue of money.
*  Why believe her spouse’s unsupported word about her desires?
*  What Terri really needed was an aggressive program of physical and linguistic therapy.
*  It was basically a matter of spousal versus parental rights.
*  It was the parents, not the husband, who were trying to do what Terri would have wanted.
*  The state courts refused to look at any new evidence.
*  All those judges simply rubber-stamped Judge Greer’s original decision.
*  Florida state law, which says that “a surrogate decision maker should err on the side of life,” was clearly violated.

And finally, the central issue of all:

* Why should a spouse be the sole person to decide the fate of a person in a persistent vegetative state?

I think we would all agree that these emerged as being at the heart of the Terri Schiavo case.  Isn’t it odd, then, that every single one of them is false to the actual facts of the case?

With a willingness to do research and a certain persistence (both of which I possess in superfluity), one can find out a great deal from the original court records.  Here is how the story reveals itself from them:

Michael Schiavo and Theresa Marie Schindler were married in November of 1984.  After about three years they sought conception assistance from an obstetrician, which suggests (but only suggests) that things were still going well enough in the marriage.

Terri had had a weight problem most of her life, reaching 250 pounds by the time she was 18.  She had been losing weight, reaching 110 pounds by the time they consulted the obstetrician.  On February 25, 1990, she had a heart attack, later determined to be due to an extremely low potassium level, a symptom of bulimia.  Before the paramedics arrived, her brain was without oxygen for about five minutes, causing irreversible brain damage.

At first, Michael Schiavo and Terri’s parents refused to believe it was irreversible.   However, as Terri had been diagnosed as being in a “permanent vegetative state,” Michael was appointed by the court to serve as her legal guardian (June, 1990).  In various facilities, she was given “aggressive” and “intense” physical and speech therapies.  These continued for four years.  At one point, Michael had her flown to California to receive an experimental thalamic stimulator implant in her brain in the hope that it would help.

Nothing did.  Despite constant care and therapy and constant visits by Michael and her parents, Terri’s condition remained unchanged.  Although she responded to noises and touch, there was no consistent pattern to her responses.

Michael brought a malpractice suit against the obstetrician, on the grounds that blood tests should have revealed Terri’s potassium imbalance.  In 1993, Terri was awarded $750,000 dollars and Michael was awarded (for loss of consortium – spousal company) $300,000.  The court put Terri’s money into a trust fund.

Although one has to pick one’s way through radically differing testimony at this point, it seems clear that the money caused a falling out between Michael and Terri’s parents.  It appears as if they felt that they, too, had lost Terri’s company and therefore were due a share of the consortium award.

In any case, there was a rift.  They petitioned for the court to remove Michael as legal guardian on the grounds that he was neglecting Terri.  The court appointed a guardian ad litem (temporary guardian appointed for a single proceeding).  His investigation showed that Michael, far from neglecting Terri, was so meticulous and demanding that he was characterized by the administrator as a “nursing home administrator’s nightmare.” [On this issue, it might be well to point out here that in all the years after her collapse, Terri never suffered a bedsore.]

Somewhere in this period, Michael clearly came to believe that the doctor’s diagnosis of “permanent vegetative state” was correct.  In 1994 when Terri contracted a urinary tract infection and a physician suggested that they should let nature take its course, Michael briefly elected not to treat the infection and initiated a DNR (Do Not Resuscitate) order.  It is reasonable to assume that this widened the rift with the Schindlers.

At this point, a small digression into Florida law.  In the absence of any advance directive, Florida law recognizes that a person in a coma or vegetative state has rights.  Those rights are protected by appointing someone to act as proxy for the person incapacitated.  Listed in order of preference for proxy, a spouse comes before a parent.  As court-appointed guardian, Michael Schiavo was authorized to act in Terri’s behalf in making medical decisions.  According to the law, the proxy is required to act as “the proxy reasonably believes the patient would act under the circumstances.”

Michael maintained that Terri had not wanted to remain on life support indefinitely.  However, rather than acting on his own proxy authority, he selected another option offered by the Florida statutes.  Under that law, the proxy may submit a health care question to the circuit court for judicial resolution.  In May, 1998, Michael Schiavo petitioned the court for “Authorization to Discontinue Artificial Life Support and Suggestion for Appointment of Guardian Ad Litem.”

Three things ought to be noted here: First, Michael asked the court to take the decision out of his hands, and the court agreed to do so.  Second, Florida law requires that the judge must determine if there is “clear and convincing” evidence of the original intent of the patient.  Third, if that is found to be true, the trial judge “must make the decision that the clear and convincing evidence shows the ward would have made herself.” (Taken from a later decision in this case, In re Guardianship of Schiavo)

This is the heart of the whole affair.  The judge appointed (another) guardian ad litem.  His investigation showed neither side in very good light and suggested that both were tainted by financial considerations.  As Terri’s spouse, in the event of her death Michael would inherit her trust.  If Michael were removed as guardian, he would presumably divorce Terri, in which case the Schindlers would inherit the trust upon her death.  With the motives of both sides open to question, the guardian could hardly recommend discontinuing life support. [As another side note, by 2005, all of the funds were exhausted, anyway.]

The judge, having received the report and as the Ward of the Court’s (Terri’s) ultimate guardian, pursued the matter further.  He questioned all of Terri’s physicians about her condition and prognosis.

Further, by taking testimony of other relatives, he determined that Terri had talked to both her brother-in-law and her sister-in-law separately about cases in which people were kept alive by tubes and how she never wanted that to happen to her.  The judge questioned them pretty severely and determined their evidence to be credible.  The Schindler side said that the question had never been discussed, one way or the other, with any of them.

Judge Greer found that, as a matter of law, Terri Schiavo was in a “Permanent Vegetative State.”  That “Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand.”  He further found that the totality of the evidence “rises to the level of clear and convincing evidence to this court.”

The court cited the Florida Supreme Court and said: “One does not exercise another’s right of self-determination or fulfil that person’s right of privacy by making a decision which the state, family, or public opinion would prefer.”

The court granted the petition of Michael Schiavo.

Note that the question of Terri’s being in a “Permanent Vegetative State” was not challenged by the Schindlers.  Further, none of this court’s evidence was ever successfully challenged in any court.  Note, too, that this decision settled the he-said/she-said question and that Terri’s wishes were now established as a legal matter.  The court’s decision was not based on Michael’s opinion of Terri’s wishes.

For the next seven years, court after court reviewed the case (some reviewing the evidence, some just reviewing the original proceedings) and reached the same conclusions:

*  Medically, Terri was in a Permanent Vegetative State.
*  Terri had had the benefit of full Due Process and her wishes had been determined.
*  Terri had been represented and protected as a ward of the court, by a guardian ad litem (over the years more would be appointed), by the court itself acting as proxy, and by Michael Schiavo acting as her original guardian.
* It was the responsibility of the courts as well as her guardian to see that Terri’s wishes were honored.

From that point on, this case has been a question of whether the rule of law would be followed.  Court after court reviewed the challenges, appeals, and “new evidence” presented by the Schindlers and found that none affected the validity of the original decision.  Even the U.S. Supreme Court refused to intervene, implying that they, too, found the original process to be without legal error.

In time, the Schindlers’ arguments grew less and less legal and more and more about how Michael Schiavo was trying to kill their daughter.  One of the later guardians ad litem reported that the Schindlers had actually said that neither their daughter’s wishes nor her condition would sway them. They intended to keep her alive under any circumstances.  Clearly, Terri had ceased to be a person and had become a cause.

There is an old saying in the legal profession:  “If the facts are against you, argue the law.  If the law is against you, argue the facts.  If both are against you, just argue.”  Perhaps this explains those who so successfully obscured both the law and the facts of this case.  [Although it does nothing to excuse the incompetence of the media who let them get away with it.]

Those who did so are exactly the same people who, a few years ago, were loudly declaring against political interference and orating how we were a nation of laws, not men.  Faced with inconvenient facts and filled with moral certitude, they now proved willing to ignore the law, and to adopt any tactic and twist any fact in their pursuit of their “higher” goal.  Offhand, I cannot think of any group who more completely embody the idea that the ends justify the means.

But what really terrifies me is how easily and completely they succeeded.

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