| Topic: |
Religions > Atheism |
| User: |
"david ford" |
| Date: |
25 Mar 2005 09:19:13 PM |
| Object: |
Facts vs. media fictions about Terri's actual condition |
The affidavit extracts below demonstrate the falsity of the old media's
erroneous allegation that 'no one is home' in Terri Schindler Schiavo.
Also, Terri can anticipate and feel pain.
A U.S. judiciary run amok and a shameless American Criminal Liberties
Union are intent on murdering via starvation an innocent/ guiltless and
defenseless woman.
Decency demands that this unjustified, court-imposed death sentence on
Terri Schindler Schiavo be stopped.
What, if anything, will you do to help Terri and stop a judiciary and
ACLU run amok?
action items to help Terri
http://www.terrisfight.org/actionitems.html
From
http://www.hospicepatients.org/terri-schindler-schiavo-docs-links-page.html
from the PDF "Affidavit of William Cheshire, Jr., MD 03-23-05":
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF DUVALL
Before me this day personally appeared William Polk Cheshire, Jr., M.D.,
who, being duly sworn, deposes and says:
I, William Polk Cheshire, Jr., M.D., have personal knowledge of the
facts stated in this declaration and, if called as a witness, I could
and would testify competently thereto under oath. I declare as follows:
I am a neurologist practicing in the State of Florida and am certified
by the American Board of Psychiatry and Neurology. In regard to my
educational background, I received an A.B. in biochemical sciences from
Princeton University, an M.A. in bioethics from Trinity International
University, and an M.D. from West Virginia University. I completed an
internship in internal medicine at West Virginia University, a residency
in neurology and a pain fellowship at the University of North Carolina.
I am also an appointed volunteer with the Florida Statewide Adult
Protective Services team, in which capacity I was called on March 1,
2005, to provide an independent and objective medical review of
allegations of possible abuse, neglect, or exploitation of Ms. Theresa
Marie Schiavo.
Although no one from the Department of Children and Families has
inquired about my personal views about treatment decisions in cases of
persistent vegetative state (PVS), I would like to disclose that I came
into this case with the belief that it can be ethically permissible to
discontinue artificially provided nutrition and hydration for patients
in a persistent vegetative state. Having now reviewed the relevant
facts, having met and observed Ms. Schiavo in person, and having
reflected deeply on the moral and ethical issues, I would like to
explain why I change my mind in regard to this particular case.
.....
Based on my review of extensive medical records documenting Terri's care
over the years, on my personal observation of Terri, and on my
observations of Terri's responses in the many hours of videotapes taken
in 2002, she demonstrates a number of behaviors I believe cast a
reasonable doubt on the prior diagnosis of PVS. These include:
1. Her behavior is frequently context-specific. For example, her
facial expression brightens and she smiles in response to the voice of
familiar persons such as her parents or her nurse. Her agitation
subsides and her facial demeanor softens when quiet music is played.
When jubilant piano music is played, her face brightens, she lifts her
eyebrows, smiles, and even laughs. Her lateral gaze toward the tape
player is sustained for many minutes. Several times I witnessed Terri
briefly, albeit inconsistently, laugh in response to a humorous comment
someone in the room had made. I did not see her laugh in the absence of
someone else's laughter.
2. Although she does not seem to track or follow visual objects
consistently or for long periods of time, she does fixate her gaze on
colorful objects or human faces for some 15 seconds at a time and
occasionally follows with her eyes at least briefly as these objects
move from side to side. When I first walked into her room, she
immediately turned her head toward me and looked directly at my face.
There was a lot of curiosity or expectation in her expression, and she
maintained eye contact for about half a minute. Later, when she again
looked at me, she brought her lips together as if to pronounce the
letter "O," and although for a moment it appeared that she might be
making an intentional effort to speak, her face then fell blank, and no
words came out.
3. Although I did not hear Terri utter distinct words, she demonstrates
emotional expressivity by her use of a single syllable of vocalizations
such as "ah," making cooing sounds, or by expressing guttural sounds of
annoyance or moaning appropriate to the context of the situation. The
context-specific range and the variability of her vocalizations suggests
at least a reasonable probability of the processing of emotional thought
within her brain. There have been reports of Terri rarely using actual
words specific to her situational context. The July 25, 2003 affidavit
of the speech pathologist Sarah Green Mole, MS, on page 6, reads, "The
records of Mediplex reflect the fact that she has said 'stop' in
apparent response to a medical procedure being done to her." The Adult
Protective Services team has been unable to retrieve those original
medical records in this instance.
4. Although Terri has not consistently followed commands, there
appeared to be some notable exceptions. In the taped examination by Dr.
Hammesfahr from 2002, when asked to close her eyes she began to blink
repeatedly. Although it was unclear whether she squeezed her grip when
asked, she did appear to raise her right leg four times in succession
each time she was asked to do so. Rehabilitation notes from 1991
indicated that she tracked inconsistently, and although she did not
develop a yes/no communication system, did follow some commands
inconsistently and demonstrated good eye contact to family members.
5. There is a remarkable moment in the videotape of the September 3,
2002 examination by Dr. Hammesfahr that seemed to go unnoticed at the
time. At 2:44 p.m., Dr. Hammesfahr had just turned Terri onto her right
side to examine her back with a painful sharp stimulus (a sharp piece of
wood), to which Terri had responded with signs of discomfort. Well
after he ceased applying the stimulus and had returned Terri to a
comfortable position, he says to her parents, "So, we're going to have
to roll her over...." Immediately Terri cries. She vocalizes a crying
sound, "Ugh, ha, ha, ha," presses her eyebrows together, and sadly
grimaces. It is important to note that, at that moment, no one is
touching Terri or causing actual pain. Rather, she appears to
comprehend the meaning of Dr. Hammesfahr's comment and she signals her
_anticipation_ of pain. This response suggests some degree of language
processing and interpretation at the level of the cerebral cortex. It
also suggests that she may be aware of pain beyond what could be
explained by simple reflex withdrawal.
6. According to the definition of PVS published by the American Academy
of Neurology, "persistent vegetative state patients do not have the
capacity to experience pain or suffering. Pain and suffering are
attributes of consciousness requiring cerebral cortical functioning, and
patients who are permanently and completely unconscious cannot
experience these symptoms."^6 And yet, in my review of Terri's medical
records, pain issues keep surfacing. The nurses at Woodside Hospice
told us that she often has pain with menstrual cramps. Menstrual flow
is associated with agitation, repeated or sustained moaning, facial
grimacing, limb posturing, and facial flushing, all of which subside
once she is given ibuprofen. Some of the records document moaning,
crying, and other painful behavior in the setting of urinary tract
infections.
.....
7. To enter the room of Terri Schiavo is nothing like entering the room
of a patient who is comatose or brain-dead or in some neurological sense
no longer there. Although Terri did not demonstrate during our 90
minute visit compelling evidence of verbalization, conscious awareness,
or volitional behavior, yet the visitor has the distinct sense of the
presence of a living human being who seems at some level to be aware of
some things around her.
As I looked at Terri, and she gazed directly back at me, I asked myself
whether, if I were her attending physician, I could in good conscience
withdraw nutrition and hydration. No, I could not. I could not
withdraw life support if I were asked. I could not withhold
life-sustaining nutrition and hydration from this beautiful lady whose
face brightens in the presence of others.
The neurologic signs are in many ways ambiguous. There is no guarantee
that more sophisticated testing would definitively resolve that
ambiguity to everyone's satisfaction. There would be value, I think, in
obtaining a functional MRI scan if that is possible.
This situation differs fundamentally from end-of-life scenarios where it
is appropriate to withdraw life-sustaining medical interventions that no
longer benefit or are burdensome to patients in the terminal stages of
illness. Terri's feeding tube is not a burden to her. It is not
painful, is not infected, is not eroding her stomach lining or causing
any medical complications. But for the decision to withdraw her feeding
tube, Terri cannot be considered medically terminal. But for the
withdrawal of food and water, she would not die [well, she would not die
now-- everybody dies eventually, sometimes sooner rather than later. We
never know when we will go to meet our Maker. -df].
In summary, Terri [Schindler] Schiavo demonstrates behaviors in a
variety of cognitive domains that call into question the previous
neurologic diagnosis of persistent vegetative state. Specifically, she
has demonstrated behaviors that are context-specific, sustained, and
indicative of a cerebral cortical processing that, upon careful
neurologic consideration, would not be expected in a persistent
vegetative state.
Based on this evidence, I believe that, within a reasonable degree of
medical certainty, there is a greater likelihood that Terri is in a
minimally conscious state than a persistent vegetative state. This
distinction makes an enormous difference in making ethical decisions on
Terri's behalf. If Terri is sufficiently aware of her surroundings that
she can feel pleasure and suffer, if she is capable of understanding to
some degree how she is being treated, then in my judgment it would be
wrong to bring about her death by withdrawing food and water.
At the time of this writing, Terri Schiavo, as the result of the
decisions based on what I have argued to be a faulty diagnosis of
persistent vegetative state, has been without food or water for 5 days.
She is thus at risk of death or serious injury unless the provision of
food and water can be restored. Terri Schiavo lacks the capacity to
consent to emergency protective services and must trust others to act on
her behalf. If she were to be transferred to another facility, it would
be medically necessary first to initiate hydration and ensure that her
serum electrolytes are within normal values.
How medicine and society choose to think about Terri [Schindler] Schiavo
will influence what kind of people we will be as we evaluate and respond
to the needs of the most vulnerable people among us. When serious
doubts exist as to whether a cognitively impaired person is or is not
consciously aware, even if these doubts cannot be conclusively resolved,
it is better to err on the side of protecting vulnerable life.
Respectfully submitted,
William Polk Cheshire, Jr., M.D., M.A., F.A.A.N.
[signature]
Sworn to (or affirmed) and subscribed before me this 23[rd] day of
March, 2005, by William Polk Cheshire, Jr., M.D.
[notary stamp and signature]
======================================================================
articles: livelier ones are by Thomas Sowell and William Kristol. Eric
Cohen's is very thoughtful.
http://www.townhall.com
Cal Thomas: Schiavo case matters in symbol and substance
http://groups.google.co.in/groups?selm=dford3-3adfseF68nkocU1%40individual.net
Justifications for taking of human life?
http://groups.google.co.in/groups?selm=dford3-3aj33dF67kgcuU2%40individual.net
any atheists against Terri Schindler Schiavo's being starved to death?
http://groups.google.co.in/groups?selm=dford3-3adrlvF69l60hU1%40individual.net
1997 Wesley Smith on Germany's slippery slope slide from devaluing some
human life to a little euthanasia/ killing to mass killings
http://groups.google.co.in/groups?selm=dford3-3abe1cF6ac7t2U1%40individual.net
ACLU: Legal Terrorists
http://www.newsmax.com/archives/articles/2004/11/27/195402.shtml
Terri Schindler Schiavo Case
http://www.newsmax.com/archives/articles/2003/10/16/223430.shtml
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=43463
What, if anything, will you do to help Terri and stop a judiciary and
ACLU run amok?
action items to help Terri
http://www.terrisfight.org/actionitems.html
.
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| User: "" |
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| Title: Re: Facts vs. media fictions about Terri's actual condition |
30 Mar 2005 07:00:14 PM |
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david ford wrote:
rja.carnegie@excite.com wrote in message
news:<1112196476.662888.84180@z14g2000cwz.googlegroups.com>...
david ford wrote:
Terri's will has been found!
http://img.photobucket.com/albums/v660/NotATomato/TerrisWill.gif
Having thereby declared that you don't consider this a matter for
serious discussion, you open the way for me to comment that the
majority of your contributions are not, in fact, particularly
funny,
either.
How many "contributions" have you made?
What proportion of them are:
"not, in fact, particularly funny"?
"funny"?
Three, that Google Groups Beta finds; and as for funny, well, it's not
for me to say; but that one there was calculated irony, I previously
mocked "taking her life" as an absurd euphemism and suggested Jeb Bush
should nurse her personally from now on if he's concerned, and I
suggested that talk.origins usually discusses organisms with more brain
function. So I try. I don't seem to have been nominated into
alt.humor.best-of-usenet since last November, though. And then, as too
often, I seem to be straight man.
.
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| User: "Ken Shaw" |
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| Title: Re: Facts vs. media fictions about Terri's actual condition |
29 Mar 2005 09:03:11 AM |
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david ford wrote:
Please phone or fax your elected Senators and Congresspersons in
Washington, DC or their stateside offices,
1) that Terri Schindler Schiavo be allowed to die with dignity
2) that they find out exactly what Randall Terry, who fits the "Prince of
Darkness" profile has done to physically and verbally abuse innocent women these many years.
Thanks I contacted:
Jan Schakowsky
Barack Obama
***** Durbin
With your properly edited recommendations.
It is good to live in the darkest blue spot in the country.
Ken
.
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| User: "david ford" |
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| Title: Re: Facts vs. media fictions about Terri's actual condition |
28 Mar 2005 05:36:49 AM |
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Report of Guardian Ad Litem Jay Wolfson 12-2003 re Terri Schiavo,
linked to from
http://www.hospicepatients.org/terri-schindler-schiavo-docs-links-page.html
and specifically at
http://www.hospicepatients.org/jay-wolfson-guardian-ad-litem-report-12-2003.html
What I underlined while reading this appears in these extracts:
It is the additional recommendation of the GAL [Guardian Ad Litem] that
as long as controversy and an adversarial legal relationship exist in
Theresa's case, a Guardian Ad Litem should be appointed to represent her
exclusive interests. This is in no way intended to detract from or
impugn the role of Theresa's existing Guardian, Michael Schiavo.
=
Hypothesis I
Theresa, though profoundly disabled, with massive loss of cognitive
function, maintains some cognitive capacity that has not been fully
recognized. She is aware of aspects of her environment, though she
requires great effort and energy to respond in the smallest way. She is
capable of some interactive capacity, and can be brought, through
therapy, to receive oral nutrition and hydration and possibly to enjoy
other interactive competencies.
If she could speak to us, assume that Theresa would ask to be maintained
and cared for under these circumstances.
Hypothesis II
Same as above, except Theresa's cognitive functions cannot improve, she
will not be able to take oral nutrition and hydration, and she will not
display any interactive or cognitive functions beyond what she has over
the past 13 years. She can be maintained and cared for through an
indefinite period of time.
If she could speak to us, assume that Theresa would ask to be maintained
and cared for under these circumstances, or in the alternative, assume
that Theresa would ask not to be maintained under these circumstances.
Hypothesis III
Theresa's exclusive awareness for 13 years, to the extent she may be
aware of anything, is the equivalent of fear and perpetual horror. She
is unable to hear, see, speak or interact, and unable to die, but she is
not "locked in".
If she could speak to us Theresa would ask to be released from this
condition and allowed to die.
Hypothesis IV
Same as I and/or II above, except the litigation surrounding Theresa
continues, resulting in years of more of the same process that has been
experienced to date, including orders and actions to remove her feeding
tube and orders and actions to replace her feeding tube, multiple
additional times.
If Theresa could speak to us, she would claim to be the victim of cruel
and unusual punishment, protected by the U.S. Constitution.
=
the exhaustion of monies in a trust fund derived from a medical
malpractice economic damages award;
=
Merriam-Webster defines
=
Value is defined as
=
If the Guardian Ad Litem's recommendations are neither feasible nor
valuable to and on behalf of Theresa Schiavo, then they fail in their
purpose. For them to be feasible and valuable, they must be capable of
being done in a manner that affords relative and intrinsic worth for
Theresa; not for her husband; not for her parents and siblings; not for
the Governor or the Legislature.
=
About three years later, without the apparent knowledge of her parents,
Theresa and Michael sought assistance in becoming pregnant through an
obstetrician who specialized in fertility services. For over a year,
Theresa and Michael received fertility services and counseling in order
to enhance their strongly held desire to have a child.
=
slipped into a coma. She was intubated, ventilated and trached, meaning
that she was given life saving medical technological interventions,
without which she surely would have died that day.
The cause of the cardiac arrest was adduced to a dramatically reduced
potassium level in Theresa's body. Sodium and potassium maintain a
vital, chemical balance in the human body that helps define the
electrolyte levels. The cause of the imbalance was not clearly
identified, but may be linked, in theory, to her drinking 10-15 glasses
of iced tea each day. While no formal proof emerged, the medical
records note that the combination of aggressive weight loss, diet
control and excessive hydration raised questions about Theresa suffering
from Bulimia, an eating disorder, more common among women than men, in
which purging through vomiting, laxatives and other methods of diet
control becomes obsessive.
=
On 12 May 1990, following extensive testing, therapy and observation,
she was discharged to the College Park skilled care and rehabilitation
facility. Forty-nine days later, she was transferred again to Bayfront
Hospital for additional, aggressive rehabilitation efforts. In
September of 1990, she was brought home, but following only three weeks,
she was returned to the College Park facility because the "family was
overwhelmed by Terry's care needs."
=
Michael Schiavo, on Theresa's and his own behalf, initiated a medical
malpractice lawsuit against the obstetrician who had been overseeing
Theresa's fertility therapy. In 1993, the malpractice action concluded
in Theresa and Michael's favor, resulting in a two element award: More
than $750,000 in economic damages for Theresa, and a loss of consortium
award (non economic damages) of $300,000 to Michael. The court
established a trust fund for Theresa's financial award, with SouthTrust
Bank as the Guardian and an independent trustee. This fund was
meticulously managed and accounted for and Michael Schiavo had no
control over its use. There is no evidence in the record of the trust
administration documents of any mismanagement of Theresa's estate, and
the records on this matter are excellently maintained.
After the malpractice case judgment, evidence of disaffection between
the Schindlers and Michael Schiavo openly emerged for the first time.
The Schindlers petitioned the court to remove Michael as Guardian. They
made allegations that he was not caring for Theresa, and that his
behavior was disruptive to Theresa's treatment and condition.
Proceedings concluded that there was no basis for the removal of Michael
as Guardian Further, it was determined that he had been very aggressive
and attentive in his care of Theresa. His demanding concern for her
well being and meticulous care by the nursing home earned him the
characterization by the administrator as "a nursing home administrator's
nightmare". It is notable that through more than thirteen years after
Theresa's collapse, she has never had a bedsore. [incorrect: nurse
testimony]
=
elected not to treat the infection and simultaneously imposed a "do not
resuscitate" order should Theresa experience cardiac arrest. When the
nursing facility initiated an intervention to challenge this decision,
Michael cancelled the orders. Following the incident involving the
infection, Theresa was transferred to another skilled nursing facility.
Michael's decision not to treat was based upon discussions and
consultation with Theresa's doctor, and was predicated on his reasoned
belief that there was no longer any hope for Theresa's recovery.
[sounds wrong/ incorrect]
=
It took Michael a long time to consider the prospect of getting on with
his life something he was actively encouraged to do by the Schindlers,
long before enmity tore them apart. He was even encouraged by the
Schindlers to date, and introduced his in-law family to women he was
dating. But this was just prior to the malpractice case ending.
As part of the first challenge to Michael's Guardianship, the court
appointed John H. Pecarek as Guardian Ad Litem to determine if there
had been any abuse by Michael Schiavo. His report, issued 1 March 1994,
found no inappropriate actions and indicated that Michael had been very
attentive to Theresa. After two more years of legal contention, the
Schindlers action against Michael was dismissed with prejudice. Efforts
to remove Michael as Guardian were attempted in subsequent years,
without success.
Hostilities increased and the Schindlers and Michael Schiavo did not
communicate directly. By June of 1996, the court had to order that
copies of medical reports be shared with the Schindlers and that all
health care providers be permitted to discuss Theresa's condition with
the Schindlers something Michael had temporarily precluded.
In 1997, six years after Theresa's tragic collapse, Michael elected to
initiate an action to withdraw artificial life support from Theresa.
More than a year later, in May of 1998, the first petition to
discontinue life support was entered. The court appointed Richard
Pearse, Esq., to serve as Guardian Ad Litem to review the request for
withdrawal, a standard procedure.
=
In response to Mr. Pearse's report, Michael Schiavo filed a Suggestion
of Bias against Mr. Pearse. This document notes that Mr. Pearse
failed to mention in his report that Michael Schiavo had earlier,
formally offered to divest himself entirely of his financial interest in
the guardianship estate. The criticism continues to note that Mr.
Pearse's concern about abuse of inheritance potential was directly
solely at Michael, not at the Schindlers in the event they might become
the heirs and also choose to terminate artificial life support.
Further, significant chronological deficits and factual errors are
noted, detracting from and prejudicing the objective credibility of Mr.
Pearse's report.
=
On 11 February 2000, consequent to hearings and the presentation of
competent evidence, Judge Greer ordered the removal of Theresa's
artificial life support.
=
The hearings and testimony before the trial court leading to the
decision to discontinue artificial life support included admitted
hearsay from Theresa's brother-in-law (Michael Schiavo's brother) and
his wife (Michael's Schiavo's sister-in-law) along with testimony from
Michael.
The testimony of these parties referenced specific conversations in
which Theresa commented about her desire never to be placed on
artificial life support. The testimony reflected conversations at or
proximate to funerals of close family members who had been on artificial
life support. The context and content of the testimony, while hearsay,
was deemed credible and consistent and was used by the court as a
supporting bases for its decision to discontinue artificial life support.
The Schindler's new evidence ostensibly reflected adversely on Michael
Schiavo's role as Guardian. It related to his personal romantic life,
the fact that he had relationships with other women, that he had
allegedly failed to provide appropriate care and treatment for Theresa,
that he was wasting the assets within the guardianship account, and that
he was no longer competent to represent Theresa's best interests.
=
additional, difficult testimony that appeared to establish that despite
the sad and undesirable condition of Theresa, the parents still derived
joy from having her alive
=
Throughout this painful and difficult trial, the family acknowledged
that Theresa was in a diagnosed persistent vegetative state.
The court denied the Schindler's motions to remove the guardian
=
The two neurologists testifying for Michael Schiavo provided strong,
academically based, and scientifically supported evidence that was
reasonably deemed clear and convincing by the court. Of the two
physicians testifying for the Schindlers, only one was a neurologist,
the other was a radiologist/hyperbaric physician. The testimony of the
Schindler's physicians was substantially anecdotal, [incorrect for at
least Report of Neurologist William Hammesfahr] and was reasonably
deemed to be not clear and convincing.
=
The June 2003 appeal to the 2nd DCA was Schiavo IV. The 2nd DCA panel
of judges engaged in what approximated a de novo review of all of the facts
=
Upon appointment, this Guardian Ad Litem met with the Schindler family
and their attorneys, Michael Schiavo and his attorney, and with the
Ward, Theresa Marie Schiavo. The establishment of a trusting
relationship with all of the parties was a priority in order to ensure
that any recommendations would be feasible and valuable. Only thirty
days were afforded to the process.
=
The Guardian ad Litem has met with and discussed aspects of Theresa's
case with hospice staff = and health policy specialists. In addition to
reading the nearly 30,000 pages of court records, the Guardian Ad Litem
has conducted a review of the medical literature and has received
thousands of unsolicited documents, sources of referral, claims
regarding successful interventions, and wishes of good luck.
=
changing values and orientations about death, dying and the
medical-decision processes.
=
while at the same time, protecting against perceived and actual abuses
and assisted suicides.
=
The current, generally accepted applications to terminal illness or
persistent vegetative state define artificial feeding as artificial life
support that may be withheld or withdrawn. [not lay meaning; also,
diagnosis for Terri was incorrect: ex:
23 March 2005 William Cheshire affidavit: someone is there; Terri can
anticipate and feel pain
http://groups.google.co.in/groups?selm=dford3-3ak2l1F6att0vU1%40individual.net
aka
http://tinyurl.com/5aqwe
]
=
But Florida law, as reflected in F.S. 765, and as interpreted through
In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), provide for
a substituted judgment basis for such decisions and/or the presentation
of clear and convincing evidence to demonstrate the intentions of the
person [wasn't the case here].
=
If persons unable to speak for themselves have decisions made on their
behalf by guardians or family members, the potential for abuse, barring
clear protections, could lead to a "slippery slope" of actions to
terminate the lives of disabled and incompetent persons. And it is not
difficult to imagine bad decisions being made in order to make life
easier for a family or to avoid spending funds remaining in the estate
on the maintenance of a person.
There is, of course, the other side of that slippery slope, which would
be to keep people in a situation they would never dream of: unable to
die, unable to communicate, dependent for everything, and unaware, being
maintained principally or entirely through state resources and for
reasons that may relate to guilt, fear, needs or wants of family
members, rather than what the person's best wishes might otherwise have
been.
[Compare
1997 Wesley Smith on Germany's slippery slope slide from devaluing some
human life to a little euthanasia/ killing to mass killings
http://groups.google.co.in/groups?selm=dford3-3abe1cF6ac7t2U1%40individual.net
]
And there is the chillingly practical, other public policy matter of the
cost of maintaining persons diagnosed in persistent vegetative states
and terminal conditions alive for potentially indefinite periods of time
at what inevitably becomes public expense. Here the "reasonable
person" standard, with respect to how one would want to be treated were
they in Theresa's shoes affects the discussion. This is not easy stuff,
and should not be.
=
The law has done its job well. [very funny]
=
Theresa's three previous tests were barium swallowing tests.
=
The persistent vegetative state has been accepted as a formal diagnosis
in modern American medical practice and it is recognized by American
Academy of Neurology as:
=
no evidence of sustained, reproducible, purposeful, or voluntary
behavioral responses to visual, auditory, tactile, or noxious stimuli;
show no evidence of language comprehension or expression;
=
Further, because the autonomic nervous system those brain related
functions are not affected, they can often breathe (without a
respirator) and swallow (saliva). But there is no purposeful,
reproducible, interactive, awareness. There is some controversy within
the scientific medical literature regarding the characterization and
diagnosis of persons in a persistent vegetative state. Highly
competent, scientifically based physicians using recognized measures and
standards have deduced, within a high degree of medical certainty, that
Theresa is in a persistent vegetative state. This evidence is
compelling. [incorrect. For example look at what's above with
23 March 2005 William Cheshire affidavit: someone is there; Terri can
anticipate and feel pain
http://groups.google.co.in/groups?selm=dford3-3ak2l1F6att0vU1%40individual.net
aka
http://tinyurl.com/5aqwe
and with
Report of Neurologist William-Hammesfahr-MD-09-12-02,
linked to from
http://www.hospicepatients.org/terri-schindler-schiavo-docs-links-page.html
]
=
It is imaginable that some day such things may be possible; but holding
out such promises to families of severely brain injured persons today
may be a profound disservice.
=
The GAL concludes that the trier of fact and the evidence that served as
the basis for the decisions regarding Theresa Schiavo were firmly
grounded within Florida statutory and case law, which clearly and
unequivocally provide for the removal of artificial nutrition in cases
of persistent vegetative states, where there is no advance directive,
through substituted/proxy judgment of the guardian and/or the court as
guardian, and with the use of evidence regarding the medical condition
and the intent of the parties that was deemed, by the trier of fact to
be clear and convincing.
[all wrong]
=
Of Michael Schiavo, there is the incorrect perception that he has
refused to relinquish his guardianship because of financial interests,
and more recently, because of allegations that he actually abused
Theresa and seeks to hide this. There is no evidence in the record to
substantiate any of these perceptions or allegations.
[search not good enough]
=
PLATFORM OF UNDERSTANDING = Abandoned 30 November 2003 = To benefit
Theresa, and in the overall interests of justice, good science, and
public policy, there needs to be a fresh, clean-hands start. [yes]
=
The Schindlers and the Schiavos are normal, decent people who have found
themselves within the construct of an exceptional circumstance which
none of them, indeed, few reasonable and normal people could have
imagined. As a consequence of this circumstance, extensive urban
mythology has created toxic clouds, causing the parties and others to
behave in ways that may not, in the order of things, serve the best
interests of the ward.
In Re: Theresa Marie Schiavo, Incapacitated
Report to Gov. Jeb Bush and the 6th Florida Judicial Circuit 1 December
2003
Jay Wolfson, as Guardian Ad Litem to Theresa Marie Schiavo
////////////////////////////////////////////////////////////////////
A REPORT TO GOVERNOR JEB BUSH
AND THE 6TH JUDICIAL CIRCUIT
IN THE MATTER OF THERESA MARIE SCHIAVO
Pursuant to the requirements of H.B. 35-E (Chapter 2003-418, Laws of
Florida) and the Order of the Hon. David Demers, Chief Judge, Florida
6th Judicial Circuit regarding the appointment and duties of a Guardian
Ad Litem in the matter of Theresa Marie Schiavo, Incapacitated.
Respectfully Submitted
Jay Wolfson, DrPH, JD, Guardian Ad Litem for Theresa Marie Schiavo
1 December 2003
Introduction
Sometimes good law is not enough, good medicine is not enough, and all
too often, good intentions do not suffice. Sometimes, the answer is in
the process, not the presumed outcome. We must be left with hope that
the right thing will be done well.
We are, each of us, standing in Theresa Marie Schiavo's shoes. Each of
us is profoundly affected by the decisions that have and will be made in
this case. Advocates of privacy rights and death with dignity, and
advocates of right to life and rights of the disabled provide the
compelling definitional parameters of this matter.
On 31 October 2003, pursuant to the requirements of Florida H.B. 35-E
(Chapter 2003- 418, Laws of Florida) and the order of the Hon. David
Demers, Chief Judge, Florida 6th Judicial Circuit, a Guardian Ad Litem
was appointed for a period of thirty days with the following charge:
"
make a report and recommendations to the Governor as to whether the
Governor should lift the stay that he previously entered. The report
will specifically address the feasibility and value of swallow tests for
this ward and the feasibility and value of swallow therapy.
Additionally, the report will include a thorough summary of everything
that has taken place in the trial court and the appellate court
concerning this case."
The legislature instructed the court to appoint a Guardian Ad Litem to
report to the court and the Governor. Florida law regarding the duties
and powers of the Guardian Ad Litem afford considerable scope and
flexibility. The specific court ordered charge is narrowly constructed,
particularly with respect to the questions to be addressed.
The recommendations proffered herein are intended for both the Governor
and the court, on behalf of Theresa Marie Schiavo.
The Guardian Ad Litem's efforts have been to deduce and represent the
best wishes and best interests of Theresa Schiavo. In that no express,
written advance directive existed, determining what Theresa's wishes
might be require a combination of substituted judgment, reasonable
person considerations, and an aggressive, objective assessment of the
massive legal and clinical record that has been compiled over thirteen
years.
The entire court file of thirteen years, including items of evidence,
has been reviewed and studied, with particular attention given to
decision points in the case history that are reflected in motions to and
orders by the Court. The case review has included clinical and medical
records, discussions with members of the family, caregivers, and with
medical, legal, bioethical and religious practitioners and scholars and
the conduct of independent research into the substantive issues in this
case. The GAL has met regularly with Ms. Schiavo, his ward.
Below, the questions posed to the GAL are addressed with
recommendations, followed by an introduction to the case, a summary of
the case, a summary of legal and medical issues in this case, and an
expanded analysis of the recommendations at the conclusion of the report.
Questions and Recommendations
The two questions which the GAL is directed to address, and respective
recommendations are:
1. Should the Governor lift the stay that he previously entered
relative to Theresa Schiavo's feeding tube?
a. Yes. The Governor should lift the stay, if valid, independent
scientific medical evidence clearly indicates that Theresa has no
reasonable medical hope of regaining any swallowing function and/or if
there is no evidence of cognitive function and no hope of improvement.
b. No. The Governor should not lift the stay if valid, independent
scientific medical evidence clearly indicates that Theresa has a
reasonable medical hope of regaining any swallowing function and/or if
there is evidence of cognitive function with or without hope of
improvement.
2. Is there feasibility and value in swallowing tests and swallowing
therapy given the totality of circumstances?
a. Yes. There is feasibility and value in swallowing tests and
swallowing therapy being administered if the parties agree in advance as
to how the results of these tests will be used with respect to the
decision about Theresa's future. If the parties do not agree in advance
as to how the tests will be used, then the court must be prepared to
once again make a final judgment on the matter. Given the history of
the case, this would not, in and of itself, assure a resolution, and is
not, therefore, deemed either feasible or of value to Theresa Schiavo
without prior agreement.
A detailed discussion of these recommendations within the context of the
GAL's findings and analyses concludes this report.
Within the construct of the GAL's role, an additional recommendation is
proffered to the court and to the Governor. During the more than nine
years of adversarial relationships involving Theresa, no permanent
Guardian Ad Litem has been appointed to stand exclusively in her shoes.
It is the additional recommendation of the GAL that as long as
controversy and an adversarial legal relationship exist in Theresa's
case, a Guardian Ad Litem should be appointed to represent her exclusive
interests. This is in no way intended to detract from or impugn the
role of Theresa's existing Guardian, Michael Schiavo.
A central, statutory and moral role of the GAL is to seek to stand in
Theresa Schiavo's shoes and speak for her with respect to her
circumstance. The intentions of Theresa are central and vital to this
case, because by law, they serve as a basis upon which reasoned
decisions may be made regarding the removal of artificial life support.
To frame the issue for the reader, the GAL posits four, alternative,
hypotheses that reasonably reflect the scope of circumstances affecting
Theresa. These are intentionally graphic and specific. Responses that
Theresa might proffer to these circumstances are then suggested.
Hypothesis I
Theresa, though profoundly disabled, with massive loss of cognitive
function, maintains some cognitive capacity that has not been fully
recognized. She is aware of aspects of her environment, though she
requires great effort and energy to respond in the smallest way. She is
capable of some interactive capacity, and can be brought, through
therapy, to receive oral nutrition and hydration and possibly to enjoy
other interactive competencies.
If she could speak to us, assume that Theresa would ask to be maintained
and cared for under these circumstances.
Hypothesis II
Same as above, except Theresa's cognitive functions cannot improve, she
will not be able to take oral nutrition and hydration, and she will not
display any interactive or cognitive functions beyond what she has over
the past 13 years. She can be maintained and cared for through an
indefinite period of time.
If she could speak to us, assume that Theresa would ask to be maintained
and cared for under these circumstances, or in the alternative, assume
that Theresa would ask not to be maintained under these circumstances.
Hypothesis III
Theresa's exclusive awareness for 13 years, to the extent she may be
aware of anything, is the equivalent of fear and perpetual horror. She
is unable to hear, see, speak or interact, and unable to die, but she is
not "locked in".
If she could speak to us Theresa would ask to be released from this
condition and allowed to die.
Hypothesis IV
Same as I and/or II above, except the litigation surrounding Theresa
continues, resulting in years of more of the same process that has been
experienced to date, including orders and actions to remove her feeding
tube and orders and actions to replace her feeding tube, multiple
additional times.
If Theresa could speak to us, she would claim to be the victim of cruel
and unusual punishment, protected by the U.S. Constitution.
Justice O'Connor's concurring opinion in Cruzan helps to establish the
foundations for Hypotheses III and IV:
A seriously ill or dying patient whose wishes are not honored may feel a
captive of the machinery required for life-sustaining measures or other
medical interventions. Such forced treatment may burden that
individual's liberty interests as much as any state coercion. Cruzan v.
Director, MDH, 497, U.S. 261 (1990)
Feasible and valuable recommendations on Theresa's behalf cannot be made
without framing her circumstance in clear and express terms.
Theresa has survived in a diagnosed persistent vegetative state for more
than thirteen years since her tragic accident and through nearly ten
years of litigation; one clamping and one removal of her gastric feeding
tube with subsequent replacement ordered by Governor Bush pursuant to a
statutory intervention; the exhaustion of monies in a trust fund derived
from a medical malpractice economic damages award; and the extensive,
extraordinary, exquisite, nearly acrobatic legal efforts of attorneys
and circuit court and appellate judges. Yet the matter of Theresa
Schiavo remains unresolved.
Following nearly a decade of hostile and expensive litigation between
parties having an interest in Theresa Schiavo, the Florida Legislature
and the Governor of Florida have intervened in the case. That
intervention, by way of a H.B. 35-E, passed during a special session of
the Legislature, authorized the Governor to stay a court ordered removal
of a gastric feeding tube and required the appointment of a Guardian Ad
Litem (hereinafter, "GAL") to proffer recommendations to the Governor.
The charge to this GAL is to review the entire Theresa Schiavo court
file, summarize it, and report recommendations to the Governor regarding
his stay on removing artificial nutrition, and with particularity on the
"feasibility and value" of swallowing tests and swallowing therapy for
Theresa Schiavo. These tests go the heart of the issues that have
driven the contentions in this case for nearly a decade.
Merriam-Webster defines feasible as reasonable do-ability:
1 : capable of being done or carried out
2 : capable of being used or dealt with successfully : SUITABLE
3 : REASONABLE, LIKELY
If therefore, something is not feasible, it is not capable of being done
or likely to be done without success.
Value is defined as relative worth:
1 : a fair return or equivalent in goods, services, or money for
something exchanged
2 : the monetary worth of something : marketable price
3 : relative worth, utility, or importance
4 a : a numerical quantity that is assigned or is determined by
calculation or measurement b : precise signification
.
7 : something (as a principle or quality) intrinsically valuable or
desirable
The relativity of "value" is clear, particularly as it may apply to a
principle or quality, rather than empirical measurement.
If the Guardian Ad Litem's recommendations are neither feasible nor
valuable to and on behalf of Theresa Schiavo, then they fail in their
purpose. For them to be feasible and valuable, they must be capable of
being done in a manner that affords relative and intrinsic worth for
Theresa; not for her husband; not for her parents and siblings; not for
the Governor or the Legislature.
The history and key legal/medical events that have occurred since
Theresa's tragic accident informed the charge to the Guardian Ad Litem.
Historical Facts in Theresa Marie Schiavo's Case
Theresa Marie Schiavo was born in the Philadelphia, Pennsylvania area on
3 December 1963 to Robert and Mary Schindler. She has two, younger
siblings, Robert Jr., and Susan. Through the age of 18, Theresa was,
according to her parents, very overweight, until she chose to lose
weight with the guidance of a physician. She dropped from 250 pounds to
around 150 pounds, at which time she met Michael Schiavo. They dated
for many months and married in November of 1984. The Schiavo and
Schindler families were close and friendly.
Theresa and Michael moved to Florida in 1986 and were followed shortly
thereafter by Theresa's parents and siblings. Theresa worked for the
Prudential Life Insurance Company and Michael was a restaurant manager.
About three years later, without the apparent knowledge of her parents,
Theresa and Michael sought assistance in becoming pregnant through an
obstetrician who specialized in fertility services. For over a year,
Theresa and Michael received fertility services and counseling in order
to enhance their strongly held desire to have a child. By this time,
Theresa's weight had dropped even further, to 110 pounds. She was very
proud of her fabulous figure and her stunning appearance, wearing bikini
bathing suits for the first time and taking great pride in her improved
good looks. Testimony and photographs bare witness to these facts.
On the tragic early morning of 25 February 1990, Theresa collapsed in
the hallway of her apartment, waking Michael, who called Theresa's
family and 911. The lives of Theresa, Michael and the Schindlers were
to change forever.
Theresa suffered a cardiac arrest. During the several minutes it took
for paramedics to arrive, Theresa experienced loss of oxygen to the
brain, or anoxia, for a period sufficiently long to cause permanent loss
of brain function. Despite heroic efforts to resuscitate, Theresa
remained unconscious and slipped into a coma. She was intubated,
ventilated and trached, meaning that she was given life saving medical
technological interventions, without which she surely would have died
that day.
The cause of the cardiac arrest was adduced to a dramatically reduced
potassium level in Theresa's body. Sodium and potassium maintain a
vital, chemical balance in the human body that helps define the
electrolyte levels. The cause of the imbalance was not clearly
identified, but may be linked, in theory, to her drinking 10-15 glasses
of iced tea each day. While no formal proof emerged, the medical
records note that the combination of aggressive weight loss, diet
control and excessive hydration raised questions about Theresa suffering
from Bulimia, an eating disorder, more common among women than men, in
which purging through vomiting, laxatives and other methods of diet
control becomes obsessive.
Theresa spent two and a half months as an inpatient at Humana Northside
Hospital, eventually emerging from her coma state, but not recovering
consciousness. On 12 May 1990, following extensive testing, therapy and
observation, she was discharged to the College Park skilled care and
rehabilitation facility. Forty-nine days later, she was transferred
again to Bayfront Hospital for additional, aggressive rehabilitation
efforts. In September of 1990, she was brought home, but following only
three weeks, she was returned to the College Park facility because the
"family was overwhelmed by Terry's care needs."
On 18 June 1990, Michael was formally appointed by the court to serve as
Theresa's legal guardian, because she was adjudicated to be incompetent
by law. Michael's appointment was undisputed by the parties.
The clinical records within the massive case file indicate that Theresa
was not responsive to neurological and swallowing tests. She received
regular and intense physical, occupational and speech therapies.
Theresa's husband, Michael Schiavo and her mother, Mary Schindler, were
virtual partners in their care of and dedication to Theresa. There is
no question but that complete trust, mutual caring, explicit love and a
common goal of caring for and rehabilitating Theresa, were the shared
intentions of Michael Shiavo and the Schindlers.
In late Autumn of 1990, following months of therapy and testing, formal
diagnoses of persistent vegetative state with no evidence of
improvement, Michael took Theresa to California, where she received an
experimental thalamic stimulator implant in her brain. Michael remained
in California caring for Theresa during a period of several months and
returned to Florida with her in January of 1991. Theresa was
transferred to the Mediplex Rehabilitation Center in Brandon, where she
received 24 hour skilled care, physical, occupational, speech and
recreational therapies.
Despite aggressive therapies, physician and other clinical assessments
consistently revealed no functional abilities, only reflexive, rather
than cognitive movements, random eye opening, no communication system
and little change cognitively or functionally.
On 19 July 1991 Theresa was transferred to the Sable Palms skilled care
facility. Periodic neurological exams, regular and aggressive physical,
occupational and speech therapy continued through 1994.
Michael Schiavo, on Theresa's and his own behalf, initiated a medical
malpractice lawsuit against the obstetrician who had been overseeing
Theresa's fertility therapy. In 1993, the malpractice action concluded
in Theresa and Michael's favor, resulting in a two element award: More
than $750,000 in economic damages for Theresa, and a loss of consortium
award (non economic damages) of $300,000 to Michael. The court
established a trust fund for Theresa's financial award, with SouthTrust
Bank as the Guardian and an independent trustee. This fund was
meticulously managed and accounted for and Michael Schiavo had no
control over its use. There is no evidence in the record of the trust
administration documents of any mismanagement of Theresa's estate, and
the records on this matter are excellently maintained.
After the malpractice case judgment, evidence of disaffection between
the Schindlers and Michael Schiavo openly emerged for the first time.
The Schindlers petitioned the court to remove Michael as Guardian. They
made allegations that he was not caring for Theresa, and that his
behavior was disruptive to Theresa's treatment and condition.
Proceedings concluded that there was no basis for the removal of Michael
as Guardian Further, it was determined that he had been very aggressive
and attentive in his care of Theresa. His demanding concern for her
well being and meticulous care by the nursing home earned him the
characterization by the administrator as "a nursing home administrator's
nightmare". It is notable that through more than thirteen years after
Theresa's collapse, she has never had a bedsore.
By 1994, Michael's attitude and perspective about Theresa's condition
changed. During the previous four years, he had insistently held to the
premise that Theresa could recover and the evidence is incontrovertible
that he gave his heart and soul to her treatment and care. This was in
the face of consistent medical reports indicating that there was little
or no likelihood for her improvement.
In early 1994 Theresa contracted a urinary tract infection and Michael,
in consultation with Theresa's treating physician, elected not to treat
the infection and simultaneously imposed a "do not resuscitate" order
should Theresa experience cardiac arrest. When the nursing facility
initiated an intervention to challenge this decision, Michael cancelled
the orders. Following the incident involving the infection, Theresa was
transferred to another skilled nursing facility.
Michael's decision not to treat was based upon discussions and
consultation with Theresa's doctor, and was predicated on his reasoned
belief that there was no longer any hope for Theresa's recovery. It had
taken Michael more than three years to accommodate this reality and he
was beginning to accept the idea of allowing Theresa to die naturally
rather than remain in the non-cognitive, vegetative state. It took
Michael a long time to consider the prospect of getting on with his life
something he was actively encouraged to do by the Schindlers, long
before enmity tore them apart. He was even encouraged by the Schindlers
to date, and introduced his in-law family to women he was dating. But
this was just prior to the malpractice case ending.
As part of the first challenge to Michael's Guardianship, the court
appointed John H. Pecarek as Guardian Ad Litem to determine if there
had been any abuse by Michael Schiavo. His report, issued 1 March 1994,
found no inappropriate actions and indicated that Michael had been very
attentive to Theresa. After two more years of legal contention, the
Schindlers action against Michael was dismissed with prejudice. Efforts
to remove Michael as Guardian were attempted in subsequent years,
without success.
Hostilities increased and the Schindlers and Michael Schiavo did not
communicate directly. By June of 1996, the court had to order that
copies of medical reports be shared with the Schindlers and that all
health care providers be permitted to discuss Theresa's condition with
the Schindlers something Michael had temporarily precluded.
In 1997, six years after Theresa's tragic collapse, Michael elected to
initiate an action to withdraw artificial life support from Theresa.
More than a year later, in May of 1998, the first petition to
discontinue life support was entered. The court appointed Richard
Pearse, Esq., to serve as Guardian Ad Litem to review the request for
withdrawal, a standard procedure.
Mr. Pearse's report, submitted to the court on 20 December 1998
contains what appear to be objective and challenging findings. His
review of the clinical record confirmed that Theresa's condition was
that of a diagnosed persistent vegetative state with no chance of
improvement. Mr. Pearse's investigation concluded that the statements
of Mrs. Schindler, Theresa's mother, indicated that Theresa displayed
special responses, mostly to her, but that these were not observed or
documented.
Mr. Pearse documents the evolving disaffections between the Schindlers
and Michael Schiavo. He concludes that Michael Schiavo's testimony
regarding the basis for his decision to withdraw life support a
conversation he had with his wife, Theresa, was not clear and
convincing, and that potential conflicts of interest regarding the
disposition of residual funds in Theresa's trust account following her
death affected Michael and the Schindlers but he placed greater
emphasis on the impact it might have had on Michael's decision to
discontinue artificial life support. At the time of Mr. Pearse's
report, more than $700,000 remained in the guardianship estate.
Mr. Pearse concludes that Michael's hearsay testimony about Theresa's
intent is "necessarily adversely affected by the obvious financial
benefit to him of being the sole heir at law
" and "
by the chronology
of this case
", specifically referencing Michael's change in position
relative to maintaining Theresa following the malpractice award.
Mr. Pearse recommended that the petition for removal of the feeding
tube be denied, or in the alternative, if the court found the evidence
to be clear and convincing, the feeding tube should be withdrawn.
Mr. Pearse also recommended that a Guardian Ad Litem continue to serve
in all subsequent proceedings.
In response to Mr. Pearse's report, Michael Schiavo filed a Suggestion
of Bias against Mr. Pearse. This document notes that Mr. Pearse
failed to mention in his report that Michael Schiavo had earlier,
formally offered to divest himself entirely of his financial interest in
the guardianship estate. The criticism continues to note that Mr.
Pearse's concern about abuse of inheritance potential was directly
solely at Michael, not at the Schindlers in the event they might become
the heirs and also choose to terminate artificial life support.
Further, significant chronological deficits and factual errors are
noted, detracting from and prejudicing the objective credibility of Mr.
Pearse's report.
The Suggestion of Bias challenges premises and findings of Mr. Pearse,
establishing a well pleaded case for bias.
In February of 1999, Mr. Pearse tendered his petition for additional
authority or discharge. He was discharged in June of 1999 and no new
Guardian Ad Litem was named.
Actions by the Schindlers to remove Michael as Guardian and to block the
petition to remove artificial life support took on a frenetic quality at
this juncture. More external parties on both sides made appearances as
potential interveners.
On 11 February 2000, consequent to hearings and the presentation of
competent evidence, Judge Greer ordered the removal of Theresa's
artificial life support.
The Schindlers aggressively sought means by which to stop the removal of
Theresa's feeding tube. Most of the motions in these efforts were
denied, but not without apparent careful and detailed review by the
court, often involving hearings at which considerable latitude was
afforded the Schindlers in their efforts to proffer testimony and admit
evidence.
The motion and hearing process continued through 2000. Then the
Schindler's sought to introduce new evidence that was believed to be of
a sufficiently substantial nature as to change the court's decision
regarding the removal of the feeding tube.
The hearings and testimony before the trial court leading to the
decision to discontinue artificial life support included admitted
hearsay from Theresa's brother-in-law (Michael Schiavo's brother) and
his wife (Michael's Schiavo's sister-in-law) along with testimony from
Michael.
The testimony of these parties referenced specific conversations in
which Theresa commented about her desire never to be placed on
artificial life support. The testimony reflected conversations at or
proximate to funerals of close family members who had been on artificial
life support. The context and content of the testimony, while hearsay,
was deemed credible and consistent and was used by the court as a
supporting bases for its decision to discontinue artificial life support.
The Schindler's new evidence ostensibly reflected adversely on Michael
Schiavo's role as Guardian. It related to his personal romantic life,
the fact that he had relationships with other women, that he had
allegedly failed to provide appropriate care and treatment for Theresa,
that he was wasting the assets within the guardianship account, and that
he was no longer competent to represent Theresa's best interests.
Testimony provided by members of the Schindler family included very
personal statements about their desire and intention to ensure that
Theresa remain alive. Throughout the course of the litigation,
deposition and trial testimony by members of the Schindler family voiced
the disturbing belief that they would keep Theresa alive at any and all
costs. Nearly gruesome examples were given, eliciting agreement by
family members that in the event Theresa should contract diabetes and
subsequent gangrene in each of her limbs, they would agree to amputate
each limb, and would then, were she to be diagnosed with heart disease,
perform open heart surgery. There was additional, difficult testimony
that appeared to establish that despite the sad and undesirable
condition of Theresa, the parents still derived joy from having her
alive, even if Theresa might not be at all aware of her environment
given the persistent vegetative state. Within the testimony, as part of
the hypotheticals presented, Schindler family members stated that even
if Theresa had told them of her intention to have artificial nutrition
withdrawn, they would not do it. Throughout this painful and difficult
trial, the family acknowledged that Theresa was in a diagnosed
persistent vegetative state.
The court denied the Schindler's motions to remove the guardian,
allowing that the evidence was not sufficient and in some instances, not
relevant. It set a date for the artificial life support to be
discontinued, as of 24 April 2001.
The decision was appealed to the Florida 2nd District Court of Appeals
(DCA), and was affirmed in January 2001. The requested appeal to the
Florida Supreme Court was denied on 23 April 2001, one day before the
scheduled removal of Theresa's feeding tube.
On 24 April 2001, Theresa Schiavo's artificial feeding tube was clamped,
and she ceased receiving nutrition and hydration. Under normal
circumstances, Theresa would die naturally within a week to ten days.
Two days after the clamping of Theresa's feeding tube, the Schindlers
filed a civil action in their capacity as "natural guardians" for
Theresa. The trial court, in emergency review, granted a temporary
injunction and the tube was unclamped. Michael Schiavo filed an
emergency motion to vacate the injunction. This led to the second
review and appeal to the 2nd DCA.
The 2nd DCA found that the intention of Florida Statutes 765 with
respect to matters such as Theresa's, is to help expedite proceedings of
the court when decisions have been made by the bona fide guardian. The
2nd DCA also noted that the Court had acted independently as proxy
decision maker regarding the removal of artificial life support.
In October 2001, the 2nd DCA concluded that the Schindlers "have
presented no credible evidence suggesting new treatment can restore Mrs.
Schiavo." The injunction was lifted and plans moved forward to
discontinue artificial nutrition.
Fresh and exhaustive motions regarding new evidence were again crafted
and proffered to the trial court by the Schindlers resulting in a
lengthy hearing. Affidavits from medical doctors and others alleged
that Theresa's condition could be improved.
In particular, the sworn statement of a single, osteopathic physician,
Dr. Webber, claimed that he could improve Theresa's condition and had
done so in like and similar cases.
The quality of evidence in this affidavit was marginal, but the court
allowed it to create a colorable entitlement to additional medical
review. The case was remanded to the trial court with the charge that
each side would select two expert physicians (a neurologist or a
neurosurgeon, according to the court) and agree between them regarding a
fifth, and if they could not agree on the fifth, the court would select
it.
By May of 2002, the physicians were selected by both sides, but no
agreement could be reached about a fifth, so the court selected one.
Curiously and surprisingly, Dr. Webber, who had served as the basis for
this entire process at the 2nd DCA, did not participate in the exams or
the procedure.
Each of the physicians was afforded access to Theresa for the purpose of
conducting a thorough examination. Video tape recordings were made of
some of the examinations along with segments in which family members
interacted with Theresa. The physicians were deposed and proffered
testimony regarding their findings.
Written reports of the examinations were prepared by all five
physicians, and a very detailed hearing was held in October of 2002.
The clinical evidence presented by the five physicians reflected their
examinations and reviews of the medical records. Four of the physicians
were board certified in neurology, as suggested by the court, and one
physician was board certified in radiology and hyperbaric medicine. All
of the physicians had excellent pedigrees of medical training.
The scientific quality, value and relevance of the testimony varied.
The two neurologists testifying for Michael Schiavo provided strong,
academically based, and scientifically supported evidence that was
reasonably deemed clear and convincing by the court. Of the two
physicians testifying for the Schindlers, only one was a neurologist,
the other was a radiologist/hyperbaric physician. The testimony of the
Schindler's physicians was substantially anecdotal, and was reasonably
deemed to be not clear and convincing.
The fifth physician, chosen by the court because the two parties could
not agree, presented scientifically grounded, academically based
evidence that was reasonably deemed to be clear and convincing by the
court.
Following exhaustive testimony and the viewing of video tapes, the trial
court concluded that no substantial evidence had been presented to
indicate any promising treatment that might improve Theresa's cognition.
The court sought to glean scientific, case, research- based
foundations for the contentions of the Schindler's physician experts,
but received principally anecdotal information.
Evidence presented by Michael Schiavo's two physicians and the fifth
physician selected by the court was reasonably deemed clear and
convincing in support of Theresa being in a persistent vegetative state
with no hope for improvement.
Simultaneous appeals of this decision and renewed actions to remove
Michael Schiavo as Guardian were initiated based upon new evidence.
The June 2003 appeal to the 2nd DCA was Schiavo IV. The 2nd DCA panel
of judges engaged in what approximated a de novo review of all of the
facts, testimony and video tapes presented at trial. The appellate
court affirmed the trial court's ruling and its conclusions, and in
addition, ordered the trial court to set a hearing date for removal of
the artificial life support.
The trial court set 15 October 2003 as the date for the removal of
Theresa's artificial nutrition tube.
The Schindler's renewed efforts to remove Michael Schiavo as Guardian,
and to disqualify judges, were not successful. Multiple amicus briefs
and affidavits from parties supporting the Schindler's were submitted
through the Schindler's actions and in some instances, independently to
the court.
By mid 2003, the landscape and texture of Theresa Schiavo's case
underwent profound changes. National media coverage, active involvement
by groups advocating right to life, and the attention of the Governor's
office and the Florida Legislature, catapulted Theresa's case into a
different dimension.
The Schindlers, acting on behalf of Theresa, filed a motion in federal
district court seeking a preliminary injunction to stay the removal of
the artificial life support from Theresa, scheduled to occur on 15
October 2003. On 6 October 2003, Florida Governor Jeb Bush filed an
Amicus brief in support of the motion for a preliminary injunction. The
brief argues that removal of artificial nutrition, resulting in death,
should be avoided if that person can take oral nutrition and hydration.
The Governor predicates his memorandum on the pivotal question as to
whether Theresa could ingest food and water on her own. That Theresa is
in a diagnosed, persistent vegetative state is explicitly recognized.
On 15 October 2003, Theresa Maria Schiavo's artificial feeding tube was
disconnected, for the second time.
The Florida legislature, in special session, passed HB 35 E on 21
October 2003, authorizing the Governor to stay the disconnection of the
artificial feeding tube and required, among other things, the
appointment of a Guardian Ad Litem to produce this report.
On that same day, 21 October 2003, the artificial feeding tube was
re-inserted per the stay ordered by Governor Bush. Other suits and
actions were initiated immediately. The governor became a named party
in the matters involving Theresa Schiavo.
This Guardian Ad Litem is not addressing any of the Constitutional
causes of action arising subsequent to the passage of HB 35 E and the
Governor's action.
In addition to the historical facts in the case, a summary of the nature
of Florida's legal and policy treatment of decisions involving death and
dying, artificial life support, and artificial nutrition, are essential
to the charge of the Guardian Ad Litem.
Guardian Ad Litem's Findings
The Information Acquisition Process
Upon appointment, this Guardian Ad Litem met with the Schindler family
and their attorneys, Michael Schiavo and his attorney, and with the
Ward, Theresa Marie Schiavo. The establishment of a trusting
relationship with all of the parties was a priority in order to ensure
that any recommendations would be feasible and valuable. Only thirty
days were afforded to the process.
All court records were accessed and reviewed, including all items of
evidence in the case. Extensive discussions were held with family
members and caregivers along with the acquisition and review of
background data and information from the case file to assist the
Guardian Ad Litem in becoming as personally acquainted with his ward,
Theresa Schiavo as possible, in the short time available. The Guardian
Ad Litem has made numerous and frequent visits to Theresa at the hospice
where she resides, including an arranged visit with her parents to
observe interactions. The Guardian ad Litem has met with and discussed
aspects of Theresa's case with hospice staff, physician cardiologists,
gastroenterologists, internists, neurologists, neurosurgeons, trauma
specialists, anesthesiologists, swallowing disorder specialists; speech
pathologists specializing in rehabilitation, swallowing tests and
swallowing therapy; and with clergy, elder law specialists,
bioethicists, and health policy specialists. In addition to reading the
nearly 30,000 pages of court records, the Guardian Ad Litem has
conducted a review of the medical literature and has received thousands
of unsolicited documents, sources of referral, claims regarding
successful interventions, and wishes of good luck. Governor Bush, to
whom this report is directed, requested a meeting with the Guardian Ad
Litem to discuss the charge. The Guardian Ad Litem met with the
Governor, his General Counsel and private external counsel to review the
Guardian Ad Litem's plan and direction. The meeting was valuable in
establishing the expanded trust among the parties that the Guardian Ad
Litem has sought to cultivate from the inception if his appointment.
The Evolution of the Law about Dying and Nutrition in Florida Our
society is at a legal, political, biotechnological, bioethical and
spiritual crossroad. Theresa Schiavo is alternately depicted as a
living, loving person, capable of interacting at a level of cognition
with her family and deserving of the right to continue to live --- and
as a tragically and profoundly brain damaged person, who earlier
expressed a desire never to find herself in a circumstance analogous to
waking up in a coffin and being there forever. But she cannot speak
to us now. So we must rely upon the auspices of good law and good
medicine and the good intentions of those who marshal these arts in
order to do our best to do the right thing well for Theresa Schiavo.
During the early 1970s the States began to revise their Probate Codes.
There were many reasons for this, including a rapidly aging population,
larger numbers of aged persons in the population, people living longer,
new and advancing medical technologies that enhanced, extended and
affected life, and changing values and orientations about death, dying
and the medical-decision processes. These matters have been seriously
addressed through a combination of inquiries and actions by church
leaders, legislators, medical scientists, and the courts, as all have
sought to respond to emerging issues such as those in the Quinlan,
Cruzan, Browning, and now the Schiavo cases.
States cooperated with the federal Administration on Aging to address
legislative and policy challenges surfacing around these matters. A
particularly important topic related to medical technology and its use
in the care, treatment and maintenance of patients, is when, who and by
what means "artificial" life support and other medical interventions
should or could be removed or never withheld in the first place.
Today, most states would afford an adult person the right to deny most
health care treatments. But if the patient is a minor, unconscious, in
a coma, in a vegetative state, or unable to communicate personal wishes
and intentions, there are serious moral, ethical and legal questions
that demanded attention. There had been inconsistencies, even within
states, as to how decisions regarding termination or removal or
withholding a procedure were made. There was also a long standing, well
accepted recognition that the relationship between the patient and the
physician the sacred trust served as the foundation for how and
where and when many of these decisions would be made. Often,
physicians, in consultation with family members and the patient have
done what was deemed to be in best interests of the patient, given the
physician's medical opinion and the express, known or believed
intentions of the patient.
To reduce ambiguities, many states began to encourage and accept written
advance directives as the basis for decisions regarding end of life
treatment. Living wills, durable powers of attorney for health care and
health care surrogate documents, stating a person's explicit intentions
regarding end of life care, became increasingly accepted and even
formalized into the statutory framework of most states. A written
expression was deemed to be an important element in this process to
avoid the possibility of confusion or uncertainty with respect to a
person's intention regarding their health and medical care.
Throughout the 1980s and 1990s, Florida lawmakers struggled with how
they would provide individuals with the prerogatives for establishing
their wishes regarding end of life decisions, while at the same time,
protecting against perceived and actual abuses and assisted suicides.
Among the most sensitive of issues is this regard has been the
withdrawal of artificial life support in the form of nutrition and
hydration. The idea of withholding or withdrawing these has created
significant debates within and across religious, philosophical and
political groups and interests. But the topic has been addressed at
great lengths by each of these groups, and there is surprising consensus
in principle and even in practice.
The current, generally accepted applications to terminal illness or
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