Sunday, February 6

Refuting Marisa Martin's Argument In Re:Schiavo

In Re Schiavo: The Saga Continues
by Marisa Martin, L.L.M. Candidate

Most states, including Florida, have statutes specifying who may make health care decisions for incapacitated patients in the absence of a prior designation, including the decision to end life sustaining treatment. Norman L. Cantor, Twenty-Five Years After Quinlan: A Review of the Jurisprudence of Death and Dying, 29 J.L. Med. & Ethics 182, 182-183 (2001).

Although court intervention is available, it usually comes into play only when family members cannot agree what the patient would have wanted or what should be done. Courts have upheld patients' rights to control end of life decisions through the 14th Amendment's protection of individual liberty and the common law principle of informed consent.In re Quinlan, 355 A.2d 647 (N.J. 1976); Foody v. Manchester Memorial Hospital, 482 A.2d 713 (Conn. 1984)


That is exactly why intervention was asked in this case. Terri's parents want to keep her alive; her husband wants her dead. That's the issue in a nutshell.

In the Schiavo case, extraordinary legislative and political intervention with the judicial system have raised constitutional issues and leave everyone wondering where the lines between morality, law-making, and judicial interpretation truly lie. What rights do patients have and how should they be adjudicated? What role, if any, should public opinion and politics play in end of life health care decisions?


That's an easy question. Life is not to rest on the democratic process of a vote. Life is an inherent right guaranteed by our Constitution. Death isn't.

In the past, a variety of groups supported 'right to life' including religious groups who believe that God has autonomous power over the death process, social groups who view life as sacrosanct, and medical practitioners whose professional ideals dictate that life should be absolutely sustained or that these type of decisions should be made exclusively by medical personnel. Advocates for disabled groups contend that all life is equally valuable and the freedom to end one's life may lead to discrimination or exploitation of disabled individuals. Cantor at 182.In the present case, Terry Schiavo collapsed in 1990 and has remained in a persistent vegetative state ("PVS") ever since.


This is not true. Her condition has improved with therapy.

Her brain stem is functioning, causing her to have normal wake/sleep cycles and to blink and grunt, but over the years her brain has become mostly fluid.


Truth: Terri recognizes people, especially her mother. Her eyes follow people around the room. She responds to direction and is able to move certain parts of her body on command. People sent by the court to ascertain he condition have said they were shocked to see her so alert and responsive.

Most experts agree that Mrs. Schiavo has zero cognitive functioning and would feel no pain if her feeding tube was removed, and she was allowed to physically die.


Again, not true. Her doctors have recommended various types of therapy. In one case an insurance company denied it. In another, her husband put her in a nursing home instead.

Her parents believe she is not in a persistently vegetative state and could improve with therapy. They have fought vehemently with the support of various interest groups (which include medical personnel) to keep her feeding tube in place..

Terry Schiavo’s husband, Michael Schiavo, wants the feeding tube removed. He is authorized under Florida law to make life sustaining treatment decisions and was also appointed Terry Schiavo’s guardian by the Florida court system. Schindler v. Schiavo, 780 So.2d 176 (Fla. 2001). His decision was upheld by a Florida Court of Appeals and the feeding tube was removed. In re Guardianship of Schiavo, Fla. Cir. Ct., No. 90-2908-GD-003, order 9/17/03.


Truth: Michael Schiavo stands to benefit financially with her death. During her illness he has lived with another woman and had two children with her instead of divorcing Terri and getting on with his life. There is every reason to believe that Michael Schiavo does not have, never will have and possibly never had Terri's well being in mind.

The Florida legislature and Governor Jeb Bush passed legislation and implemented a stay that ordered a guardian to be appointed and the feeding tube reinserted some six days later. Public Law 03-418. The bill authorizes the governor to order the feeding of PVS patients who lack living wills when there is a challenge by the family to withholding of nutrition and hydration to the patient. H.B. 35-E.

This executive order directly conflicts with previous Florida judicial decisions ordering the feeding tube removed and violates Terry Schiavo's right to privacy as her decision has been usurped by Governor Jeb Bush. No. 03-201. Florida courts determined by clear and convincing (evidence?) that Terry Schiavo would have wanted the feeding tube removed evidence. This decision should not be turned on end by the executive and legislative branches in response to political pressure or to obtain public approval.


That last statement is pure opinion and my opinion is as good as youre. I beg to differ. Death is final. Once Terri dies there is no way to bring her back to give her the benefit of medical advances that might occur within weeks, months or even years. Judging from the actions of the people around her, Terri’s parents are the ones who love her and they should be the only ones to make decisions about her.

In November 2003, Mrs. Schiavo’s parents filed a lawsuit attempting to remove Michael Schiavo as legal guardian.


They did so only after Michael refused to give them medical information concerning Terri’s condition, posted a "Do Not Resuscitate" sign on her door and refused treatment for her when she came down with a life-threatening infection.

The writer here has over looked (probably intentionally) crucial facts in the case. Some of these involve huge sums of money awarded to Terri and to Michael: In August 1992 Terri was awarded $250,000 in settlement of a malpractice suit; in November of that year she was awarded $1.4 million in a malpractice lawsuit. Then Michael was awarded another $600,000 in still another malpractice trial.In November, 1993, Michael Schiavo testified under oath that he knew withholding treatment would possibly cause Terri’s death.


Michael Schiavo filed a lawsuit challenging the constitutionality of the bill. He requested a temporary restraining order against Governor Bush. Schiavo v. Bush, Fla. Cir. Ct. No. 03-008212-CI-20. Governor Bush and Mrs. Schiavo's parents are currently seeking to remove the judges currently presiding over the respective cases, asserting they are biased. Tampa -AP, Bush Wants New Trial Over Terri Schiavo's Wishes, CBS 47 JACKSONVILLE (Florida), Nov. 20, 2003. AP, Bush Seeks Removal of Judge in Schiavo Case, TALL. DEM., Nov. 22, 2003. Several public interest groups are heavily involved, providing legal funds, political support, and publicity. Right to life groups and religious organizations support Mrs. Schiavo's parents, while the ACLU has stepped in to defend Michael Schiavo's position.John-Thor Dahlburg, Husband Sues Florida to Halt Wife’s Feeding, L.A.Times, Oct. 30, 2003. The National Right to Life organization even developed its own "Model Starvation and Dehydration of Persons With Disabilities Prevention Act" which includes a strong presumption that the incompetent would choose to have health care providers provide life sustaining nutrition and hydration unless there were clear indications to the contrary.

Although Terry Schiavo's parents may have morally and religiously defensible beliefs, Governor Bush should not undermine the Florida Constitution by violating the separation of powers doctrine on their behalf. Fl. Const. Art 2 § 3. If there is any evidence of foul play by Michael Schiavo or any medical indication that Terry Schiavo has in fact been conscious in some fashion for the past 13 years, it is up to the Florida courts to determine, not Governor Jeb Bush. As one Florida legal scholar noted, "We might need to begin reading the Florida Statutes as follows: in the event a proxy is not named prior to incapacity, the patient's health-care decisions will be made by: a) the governor; b) a guardian appointed by the court; c) the patient's spouse, and so on." Lois Shepherd, Governor Bush: Health Care Surrogate?


Where is this objection when the governor stays the execution of a convicted criminal? Gov. Bush's intervention does not threaten the Florida State constitution. If a governor can intervene to save a life when a prisoner is on death row, he can certainly do the same for a patient in a hospital. Lawyers tend to make too much over nothing with an eye to legal fees. This is one of those cases.

Also, both parties agree that Mrs. Schiavo is eligible for Medicaid. Society should not have to bear the financial burden of supporting individuals in a persistently vegetative state for decades, especially when the average cost of nursing home care for PVS patients is $40,000 -- $50,000 a year. James L. Rosica, Schiavo Case Not Unique, TALL. DEM., Nov. 7, 2003, at B6. If public resources are being spent to maintain a person who has been incapacitated for 13 years and for whom there is no medical prognosis of improvement, should those resources not be used more effectively?


So one life has a monetary value, does it? Medical technology changes so fast, who is to say there won’t be a cure soon -- through stem cell research, possibly?

But NOW here we are the the crux of the problem. If a person can’t contribute to society and it might cost society money to support that person, can’t we just kill the useless person and save the money. This can be said of the handicapped and the retarded. Shall we just kill them and get rid of them so we can spend the money on something else? I don’t want to live in that society. And students who think that way should be sent back to grade school. In fact, if you want to get rid of a life, I would volunteer people who think like that. That would leave more resources to be spent in other ways.


Although many states have implemented laws outlining how end of life decisions should be made and who should make them, these statutes are not familiar to the general public and are not easily standardized. As a result, an individual case such as Schiavo may generate strong disagreement. Although the Supreme Court has determined that generally such state statutes are constitutional, it is uncertain how crucial concomitant issues will be managed in the near future. Cruzan v. Dir. Missouri Dept. of Health, 497 U.S. 261 (1990).


The general public doesn’t know a lot about law. Most haven't read the Constitution. As a result does it generate strong disagreement? Yes. Will the US survive? Yes. But this really has nothing to do with the argument.

Meanwhile, the Florida legislature should change the relevant end of life laws and apply them prospectively, not retroactively if it is determined that the current evidentiary standards or guardianship proceedings within the Florida judicial system are inappropriately protecting the rights of those who are incapacitated. Certainty and fairness are too important in the American legal system to squander, especially with regard to life and death decisions.


I’ll bet this young lady was the first to try to change the election laws in Florida because she didn’t like the outcome.

The Florida legislature should not change the relevant end of life laws. Guardianship should be decided on the basis of who has demonstrated the most loving and caring actions toward the patient. The law should never assume to decide what "quality of life" is or isn’t. If Terri dies, she is dead forever. If she lives, there is hope that medical science will progress to the point to where she may be cured, or at least healed enough to communicate her desires.

2 comments:

Tim said...

Excellent post! I plan to link to it from prolifeblogs.com .

Sunnye T said...

Thank you, Tim. I'm honoted. I just found your blog and I'll add a logo and a link here.

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