Beyond Terri's Law

What we can learn from the Schiavo case.

by Wesley J. Smith

 

The Weekly Standard

01/19/2004, Volume 009, Issue 18

 

           

 

IT IS THE CALM before the storm in the Terri Schiavo case. The Florida woman,

who was in the throes of a court-ordered death by dehydration last October

when Florida's legislature and Governor Jeb Bush intervened, continues to

receive tube-supplied food and water. But this good news may not last. In December,

as her family and many supporters celebrated her 40th birthday, their joy was

tempered by the knowledge that powerful cultural forces are adamant that Terri

Schiavo not live to see age 41.

 

The Schiavo case was one of the most important stories of 2003. The big news

wasn't that she was ordered dehydrated to death: Conscious and unconscious

cognitively disabled people like Terri are often denied tube-supplied food and

water in America's hospitals and nursing homes. What made this case remarkable

was the successful public campaign mounted by Terri's parents Bob and Mary

Schindler to prevent their daughter from suffering a slow and potentially

agonizing death. As a result, millions of people awakened to the ugly reality that we

treat helpless humans in a way that would be criminal if done to a horse.

 

When more than 100,000 people contacted Florida governor Jeb Bush demanding

that he intervene and save Terri's life, the result was the passage of "Terri's

Law," a measure that permits the governor to suspend the removal of a feeding

tube from patients (a) who do not have a written advance directive

instructing that they not be nourished and (b) whose families disagree with the decision

to dehydrate. Bush acted and Terri's food and water were restored.

 

But Michael Schiavo, Terri's quasi-estranged husband--he's lived with another

woman for several years and has two children with her--remains adamant that

Terri die. Assisted by the American Civil Liberties Union (ACLU) and cheered on

by the bioethics establishment and media, which view the case through a

distorting "right to die" prism, Michael Schiavo sued to have Terri's Law declared

unconstitutional. If he succeeds, Judge George Greer of Florida's Sixth

Judicial Circuit will undoubtedly order Terri's feeding tube removed as he has done

twice before.

 

As we await further court proceedings, it is a good time to take stock of the

case, clear up some common misperceptions, and see whether anything can be

done to prevent future Terri Schiavos.

 

The Myth of 19 Judges: Supporters of Terri's dehydration often argue that

Terri's rights have been fully protected through extensive judicial oversight.

Michael Schiavo put it this way on "Larry King Live": "Nineteen judges have come

to the conclusion that this [dehydration] was Terri's wish." His attorney

George Felos then added, "This case has gone from the trial court to the

appellate Court to the Florida Supreme Court, to the U.S. Supreme Court, to the

Federal District Court. All of those judges have looked at this case, have looked at

the facts, and have found that Mike acted properly."

 

Well, bunk. The case has been shunted back and forth between the Sixth

Judicial Circuit Court and the Florida Second District Court of Appeal, where the

rulings have been repeatedly replayed like a looping audio tape. Only one trial

judge and one appellate court actually reviewed the evidentiary record.

Moreover, contrary to Felos's assertion, the Florida Supreme Court and the U.S.

Supreme Court did not look at the facts. Rather, both declined to review the case.

Refusing to rule is not the same thing at all as studying the record.

 

This is a crucial point because many important and highly relevant facts have

never been fully litigated. For example, because the Schindlers could not

afford to hire a neurologist to examine Terri at the time of the original trial,

Judge Greer heard only one perspective about Terri's medical condition.

 

This situation has now changed. Several doctors and rehabilitation experts

have signed affidavits asserting not only that Terri is conscious, but also that

she could be weaned off her feeding tube with rehabilitation. Judge Greer

refused to permit this evidence to be presented fully in open court, however,

because to do so, he said, would be to retry the case.

 

But the case should be retried. A human life is at stake. And there are many

other issues in addition to the heterodox expert medical opinions about

Terri's condition that must be considered if justice is to prevail over mere legal

procedure.

 

For example, Michael Schiavo was not cross-examined at the first trial about

the two different stories he has told to two different courts, from which he

wanted two different verdicts. When he wanted a money award from a medical

malpractice jury, he presented evidence that Terri would have a normal life span,

that she would need extensive and expensive rehabilitation throughout her

life, and that he would provide her this care as long as he lived. (In cases such

as this, the longer the patient is likely to live, the higher the award

probably will be.)

 

Six years later, when he wanted his wife's feeding tube removed, he changed

his story, contending that she told him she wouldn't want to live "on anything

artificial." Surely, the credibility gap created by this 180-degree turnabout

is worth considering, given that Michael's testimony and that of his brother

and sister-in-law constituted the only evidence presented to Judge Greer that

Terri would want to die.

 

There are other inconsistencies in Michael Schiavo's story: After the medical

malpractice jury money was safely in the bank, he withheld antibiotics from

Terri when she developed an infection. Because of this, the Schindlers sued to

remove him as Terri's guardian. When Michael was questioned in a deposition

about a conversation he had with a doctor about removing Terri's feeding tube,

he testified, "I said [to the doctor] I couldn't do that to Terri." He also

admitted that he did not want Terri to regain consciousness because he did not

think it in her best interests.

 

There is also considerable evidence that would be presented in a new trial

casting doubt on Michael's good intentions toward Terri. Several nurses who

cared for Terri in the mid-1990s have come forward and signed sworn affidavits

that are highly relevant to the dispute over Terri's medical condition and

Michael's good faith. For example, the nurses testified in their affidavits that

Terri was responsive and could even speak on occasion.

 

The affidavit of Carla Sauer Iyer, RN, is especially damaging to Michael's

case. She testified that Michael refused medical recommendations that Terri be

given therapy, insisting that "Terri should not get any rehab, that there

should be no range of motion [therapy], whatever, or anything else. . . . One time

I put a wash cloth in Terri's hand to keep her fingers from curling together,

and Michael saw it and made me take it out, saying that was therapy."

 

Even more disturbing, Iyer has stated under penalty of perjury:

 

 

> Throughout my time at Palm Gardens [Terri's former nursing home], Michael

> Schiavo was focused on Terri's death. Michael would say, "When is she going to

> die?" "Has she died yet?" and "When is that bitch going to die?"

 

 

Of course, Iyer's accusation should not be accepted at face value and should

be tested by rigorous cross-examination. But so too should Schiavo's version

of his disputes with care providers. He admits clashing with Terri's nurses,

but claims he was angry because they were not providing her with good enough

care.

These matters are sufficiently serious to warrant a thorough airing in a

full-blown trial. This should be uncontroversial. After all, if Terri were a

condemned murderer facing execution and factual matters of this import and

relevance had not been adequately addressed in the original proceeding, the ACLU would

never stop suing. Yet, even though Terri's case is just as much a death case

as any murder proceeding, the ACLU wants Terri to die.

Unfortunately, the judges of the Sixth Judicial Circuit are not eager to face

new facts. Indeed, Judge Greer's Sixth Judicial Circuit colleague, W. Douglas

Baird, has now refused to permit Governor Bush's attorneys to conduct any

factual discovery in the lawsuit over the constitutionality of Terri's Law.

This is to stack travesty upon travesty. Despite the general legal rule that

laws are to be presumed valid when being challenged constitutionally, Baird

instead declared Terri's Law "presumptively unconstitutional" before Governor

Bush had even filed pleadings in the case. Such a statement at least presents a

sufficient appearance of bias to require Baird be removed. Instead, the

looping tape brought the controversy back to the Second District Court of Appeal,

which true to form refused to order that Baird be disqualified. And now, even

though Judge Baird has been transferred to a criminal court, he has nonetheless

held on to the Schiavo case.

 

The Missing Guardians ad Litem: "I have never seen anything like the Terri

Schiavo litigation," the Schindlers' attorney Pat Anderson told me recently. "I

call it the 'Rule of Terri's Case.' If following a legal procedure will likely

result in Terri dying, it will be adhered to. But if a procedure could make

that outcome more difficult to attain, it will not be followed. It's the most

frustrating experience of my legal career."

Bitter words from a lawyer who has, so far, lost her case? I don't think so.

Consider the fact that Terri does not currently have a guardian ad litem who

would be duty-bound to look out for her interests. This, despite a Florida

statutory requirement that an ad litem be appointed whenever a conflict of

interest may arise between a guardian and a ward, as it clearly has between Michael

and Terri.

Terri once had a guardian ad litem, attorney Richard L. Pearse Jr. of

Clearwater, Florida. But after opining before the trial that Terri's dehydration

should not be permitted and further urging that she continue to be represented by

a guardian ad litem, he was dismissed from the case and no replacement has

ever been appointed. When the Schindlers appealed, the Second District Court of

Appeal brushed their concerns aside, ruling in essence that Judge Greer could

serve both as Terri's advocate and as a neutral arbiter of her fate. As a

consequence, Terri was sentenced to die without having an unbiased, zealous

advocate acting solely on her behalf.

The same pattern has now occurred under Terri's Law, which explicitly

requires a guardian ad litem be appointed for a patient whose dehydration has been

suspended by the governor. Accordingly, David A. Demers, chief judge of the

Sixth Judicial Circuit, appointed health law professor Jay Wolfson to represent

Terri and ordered him to review the case and report back to the court and to the

governor within 30 days. Wolfson filed a 38-page report on December 1, 2003.

While accepting Judge Greer's ruling that Terri is in a persistent vegetative

state, he recommended that Terri be given a swallow test--she has not had one

since 1992--opining that if she "has a reasonable hope of regaining any

swallowing function," her feeding tube should not be removed. Wolfson also expressed

his belief that "due process requires that the ward's interests continue to

be represented in all further proceedings herein" by a guardian ad litem or

"other appropriate fiduciary."

Judge Demers was having none of that. He thanked Wolfson for his report and

dismissed him from further service. Thus, Terri is yet again being denied an

advocate to call her own.

 

The Lack of a Legal Presumption for Life: The Terri Schiavo case shows the

acute dangers posed to the most weak and vulnerable among us by the so-called

right to die. We are now a society that too often gives the benefit of the doubt

to death in cases such as Terri's. Terri's Law was merely a stopgap measure.

A more thorough and well-thought-out law is clearly needed. Such legislation

has been filed in Florida. Senate Bill 692, to be considered in the 2004

session, would create an explicit legal presumption in favor of providing

tube-supplied food and fluids to cognitively disabled patients. But this general rule

would not be ironclad. The presumption would not apply for patients who had

signed a written advance medical directive instructing that the tube-supplied

sustenance be withheld if it "would not contribute to sustaining the incompetent

person's life or provide comfort to the incompetent person."

Such a common sense law would strike a proper balance between the right to

make our own medical decisions and the right to life of our most vulnerable

citizens. It would also go far in preventing bitter intra-family litigation such

as the Schiavo case that has roiled the nation in recent years. A just and

compassionate society should accept no less.

 

Wesley J. Smith is a senior fellow at the Discovery Institute, an attorney

for the International Task Force on Euthanasia and Assisted Suicide, and a

special consultant to the Center for Bioethics and Culture.