Friday, March 18, 2005

Terri Schiavo - Why Is She Where She Is?

Terri Schiavo is in her present position (feeding tube removed earlier today) as a result of many court decisions. To understand why the courts have put Terri in her current situation, I reviewed the approximately 17 published Florida appellate court decisions. The primary legal issues are: (1) Does Terri have a "terminal condition" (a condition from which she will not recover and that will cause her death)? (2) If Terri is in a terminal condition, what would be Terri's wish (life or death) for herself in this condition? If the answers are "yes" and "death", Florida law requires that her wish for death be granted.

After winning a malpractice case and receiving over $1 million, including $750,000 to care for Terri for the rest of her life, Terri's husband, Michael Schiavo, and her parents, Mr. and Ms. Schindler, disagreed about whether to remove Terri's feeding tube, an action that would lead to Terri's death.

Because of the disagreement, Michael Schiavo went to court to have a judge decide what Terri would have wanted. Michael Schiavo and some others testified that Terri would not want to live in her condition. The medical evidence showed that Terri had suffered severe brain damage and would never recover.

The judge made findings of fact that, based on clear and convincing evidence (a standard higher than preponderance of the evidence but less than beyond a reasonable doubt), Terri was in a persistent vegetative state and would not want to continue to live this way. These findings virtually sealed Terri's fate.

The Schindlers failed to challenge the trial court's ruling within the one year normally allowed. Nevertheless, Florida's Second District Court of Appeals in 3 decisions gave the Schindlers every opportunity to make a challenge. The Schindlers still lost on every point. Whatever chance the Schindlers might have had to extend Teri's life to its natural end was almost completely extinguished, though they continued the fight with admirable determination.

The 3 decisions to this point are written well and sensitively. They are thorough in the discussions of the law and the facts, with one exception. The essential finding that clear and convincing evidence showed that Teri had orally conveyed her desire not to live in a permanent vegetative state was not challenged. The contradiction between the malpractice trial evidence necessary to support a larger monetary award (longer life) and this trial to remove Terri's feeding tube (end her life sooner) is not mentioned. The fact that Mr. Schiavo remains married to Terri while living with, having children with, and intending to marry another woman does not come up. These issues should have been raised forcefully at trial but apparently were not. Without some evidence to cast into doubt the testimony of Mr. Schiavo and his friends, the trial judge is almost compelled to find that Terri did discuss her wishes with them and would not want to live in a persistent vegetative state.

At a later stage of the case, the Schindlers are given another chance to show that Terri has some hope of recovery, but they are not successful. They find two medical experts who are hopeful but equivocal about Terri's prospects of recovery. Michael Schiavo's two medical experts and a third, neutral medical expert named by the judge conclude that Terri is in a persistent vegetative state and that this state is a terminal condition. That is, she will never recover and will eventually die as a result of her condition. The testimony of the neutral medical expert is the most persuasive, and the evidence cited by the court of appeals makes it difficult to disagree. All hope that the Schindlers by themselves can stop the wheels of justice is gone.

The State of Florida jumped into the fray and passed a law enabling Governor Jeb Bush to stay the court's order to remove Terri's feeding tube. However, the law had several flaws, and every judge (at least 11) ruled the law unconstitutional (Florida constitution) on 2 separate grounds. (One very obvious flaw is that the law applied solely to Terri.) These decisions on the statute do become political, but the statute's flaws are apparent to every judge in the case. You can debate this issue if you want, but you face an uphill battle all the way.

Terri's fate was sealed at an early stage of this long trail of litigation. At the initial trial, the judge found by clear and convincing evidence that Terri was in a persistent vegetative state, which was a terminal condition, and that Terri would wish to die rather than to live in that condition. The court of appeals agreed that the trial judge had sufficient evidence on which to base his decision, which suggests that the evidence was not close to 50/50.

The troubling part of this judicial process is the apparent weakness to me of the evidence that Terri would wish to die rather than to live in her current condition. The only evidence is the testimony of Michael Schiavo and friends of what Terri said. His credibility and motivations are a serious issue. How can you reconcile the malpractice evidence and verdict (longer life, more money for Terri's care) with the evidence that Terri would not wish to live in her current condition? Was there perjury or concealment of evidence? Michael Schiavo remains married to Terri, but he lives with another woman, has 2 children by her, and intends to marry her. Does he remain legally married to Terri because he will inherit her trust fund when she dies? Michael Schiavo has obviously moved on with his life. Why does he push so hard to remove Terri's feeding tube? His actions do not make sense to me.

I would feel better if another judge or a jury heard all the evidence and reached the same conclusions as the first judge did. That will take an act of Congress. Congress should act immediately to assure that there is indeed clear and convincing evidence that (1) Terri has a terminal condition and (2) she expressed a genuine and seriously considered wish to die rather than to live in her current condition.

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