Thursday, March 31, 2005

Terri Schiavo - A Retrospective

Terri Schiavo died this morning. May she rest in peace.

Terri's parents, the Schlindlers, had been at her side as she lay dying until Terri's husband, Michael, arrived. Michael, so concerned to carry out Terri's wishes, arrived at Terri's bedside 5 minutes before her death and refused to let the Schindlers stay. Michael is a selfish, cold, and callous individual.

Terri's story began in 1990 when she collapsed from a potassium imbalance. Michael sued her doctor and in 1992 or 1993 won $300,000 for himself (loss of consortium with his wife) and $750,000 for Terri's care. In the course of the malpractice trial, Michael testified that he wanted to care for Terri forever, which in hindsight appears at best to be less than the whole truth. Of necessity, Michael would have had to obtain testimony from an expert witness about the expected length of Terri's life and the cost of Terri's care for that length of time. There apparently was no testimony that Terri wished to die in her condition and that Michael would carry out those wishes. Undoubtedly, such testimony would have significantly reduced the amount of the jury's verdict.

After Terri's collapse, Michael told the Schlinders that he did not see how he could go to nursing school and still pay his bills. The Schlindlers volunteered to take Michael into their home, rent free. Michael, concerned as always for others, never offered to pay the Schlindlers even after he won his $300,000.

Soon after winning the malpractice case, Michael's attitude toward Terri changed. He told the Schlindlers that he wanted to stop Terri's care because her condition was hopeless. Her condition had not changed.

In 1996 or 1997, Michael went to court to enforce "Terri's wish" to die. For the first time, Michael announces that Terri had told him of her wish to die in her condition. He, his brother, and his sister-in-law testified that Terri had expressed her wish to die in her condition after a TV movie and after a funeral. The judge gave great weight to this testimony even though Michael stood to inherit about $700,000, his testimony in the malpractice case seemed to conflict, and Terri's guardian ad litem had recommended that Michael's testimony was unconvincing in light of his conflicts.

The judge correctly stated the law that the court should err on the side of life and that Terri's wish to die must be supported by clear and convincing evidence. Then, the judge essentially ignored the very law he cited and ruled that Terri had expressed her wish to die in her condition. Other than the judge, who truly believes Michael's testimony? The judge's flawed finding of fact decided Terri's fate.

The Schlindlers appealed and separately challenged Michael's status as guardian. All their appeals and challenges failed. In regard to Michael as guardian, the same trial judge had to overlook that Michael was living with another woman, had two children by her, and was engaged to marry her once Terri died. In other words, was Michael truly putting Terri's welfare first?

The State of Florida tried to intervene, but the state courts ruled the special statute, named Terri's Law, was unconstitutional. The U.S. also tried to intervene, but its special law did not require the restoration of Terri's feeding tube. It is said that hard cases make bad law, and that appears true in this case. It would have been better if the U.S. Congress had not felt a strong need to intervene in this one state case in order to prevent an injustice.

Terri's case is an example of a bad result in court. Bad results occur every day. Nonetheless, at some point, our judicial system demands finality. The courts would grind to a halt if every result were subject to endless review. The Terri Schiavo case received much more review than the typical case ever would. The Schindlers were given every opportunity to make their case. Other than the trial court judge, all the judges carefully considered the law and the findings of fact. The appellate judges were not free to change the trial judge's findings of fact.

In the final analysis, the trial judge should feel shame for his failure to weigh the testimony accurately and to apply the law correctly. The judge simply did not give sufficient weight to Michael's change of position after receiving the malpractice money, the conflicts with the evidence in the malpractice case, Michael's potential inheritance when Terri died, and the timing of Michael's recollection of Terri's wishes. I do hope the people of Florida will find a better judge when they next get the opportunity.

As for Michael and the Schindlers, both sides will probably get book deals and make out well fiancially. Michael's motives in pushing for Terri's death remain a mystery. His actions simply do not add up.

As for society, we need to consider how to handle similar cases in the future. I would prefer in cases like this one to have either a second de novo review of the evidence, a 3-judge trial panel, or a jury before deciding a person's condition and wishes. The state legislatures should set higher standards for clear and convincing evidence of a person's oral wish to die. Parents should be given greater rights at the very least to visit their child. With these safeguards, we will hopefully prevent another Terri Schiavo case.

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