Selected court cases in the Terri Schiavo case

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[edit] Guardianship challenged

On February 14, 1993, Terri's husband, Michael Schiavo, and the Schindlers had a falling-out; Mr. Schiavo claimed the argument arose due to his refusal to share the settlement money with the Schindlers. The Schindlers claim that he failed to honor commitments he had previously made to seek aggressive treatments for his wife's condition.^[1] The amicable relationship ended, and Mr. Schiavo and the Schindlers literally stopped speaking to each other.^[2] Mr. Schiavo placed limits on how much time the Schindlers could spend with their daughter.

The Schindlers accused Michael of going back on his word that he wanted to "spend the rest of his life with Terri" once he decided to withdraw life support. Michael said he "essentially gave up hope that [Terri] would recover about four years after the accident."

In his decision in the 2000 trial to determine Terri's wishes, Republican Judge George Greer wrote, "[i]t has been suggested that Michael Schiavo has not acted in good faith by waiting eight plus years to file the Petition which is under consideration. That assertion hardly seems worthy of comment other than to say that he should not be faulted for having done what those opposed to him want to be continued,"^[3] noting also that, "the unrebutted evidence remains that Terri Schiavo remains in a persistent vegetative state."

In July 1993, the Schindlers' first challenge to Mr. Schiavo's guardianship, they attempted to remove him as legal guardian. The court appointed John H. Pecarek as Guardian ad litem to determine if there had been any abuse by Michael Schiavo. His report, issued March 1, 1994, found no inappropriate actions, indicating that Michael had been very attentive to Theresa. After two more years, the court dismissed with prejudice the Schindlers' action against Michael,^[4] holding 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". Michael remained his wife's guardian, in spite of subsequent efforts to remove him.

[edit] "Do-not-resuscitate" order

In March 1994, after more than three years of trying both established and experimental therapies, Mr. Schiavo, according to guardian ad litem (GAL), Dr. Jay Wolfson, came to terms with his doctors' diagnosis of an irreversible persistent vegetative state, and transferred his wife to a Largo nursing home. In consultation with his wife's physician, he halted most therapy for her and entered a "do-not-resuscitate" (DNR) order, which he later rescinded after the Schindlers and the nursing home protested. Wolfson (Terri's 3rd GAL) later wrote in his report^[5] (Page 10, 4th Paragraph) that:

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 canceled 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 noncognitive, vegetative state.

[edit] Petition to remove feeding tube

In May 1998, Mr. Schiavo filed a petition to remove Schiavo's feeding tube,^[6] which her parents opposed. Richard Pearse was appointed by the court as a 2nd GAL, and on December 29, 1998, reported "Dr. [Jeffrey] Karp's opinion of the ward's condition and prognosis is substantially shared among those physicians who have recently been involved in her treatment." Pearse concluded from Karp's and Dr. Vincent Gambone's diagnosis of PVS^[7] that Schiavo was legally in a persistent vegetative state as defined by Florida Statutes,^[8] Title XLIV, Chapter 765, § 101(12):^[9]

(12) "Persistent vegetative state" means a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of any kind.

(b) An inability to communicate or interact purposefully with the environment.

Pearse found that there was no possibility of improvement but that Mr. Schiavo's decisions might have been influenced by the potential to inherit what remained of Schiavo's estate. Due to a lack of a living will and questions regarding Mr. Schiavo's credibility, Pearse recommended denying his petition to remove her feeding tube. The issue of conflict of interest raised by Pearse attached to the Schindlers as well, he reported, since, had they prevailed in the various litigation over guardianship, they as the presumed heirs-at-law would have inherited the remainder of Mrs. Schiavo's estate upon her death.^[10]

[edit] Schiavo's end-of-life wishes – Schiavo I

Schiavo did not have a living will; therefore a trial was held during the week of January 24, 2000 to determine what her wishes would have been regarding life-prolonging procedures. Arguments from both sides of the issue were heard, with testimony from 18 witnesses regarding her end of life wishes. Michael claimed Schiavo wouldn't want to be kept on a machine without hope of recovery. Her parents claimed she was a devout Roman Catholic who wouldn't wish to violate the Church's teachings on euthanasia by refusing nutrition and hydration. Judge Greer issued his order granting Mr. Schiavo’s petition for authorization to discontinue artificial life support for his wife in February 2000. In this decision, the court found Terri to be in a persistent vegetative state and that she had made reliable oral declarations that she would've wanted the feeding tube removed.^[11] This decision was upheld by the Florida Second District Court of Appeal^[12] ("2nd DCA") and came to be known by the court as Schiavo I in its later rulings.

[edit] Oral feeding and the Second Guardianship Challenge

The Woodside Hospice House in Pinellas Park, Florida, where Terri used to live. Click on image to enlarge.

Oral feeding is not considered a life prolonging procedure, and on or about March 2, 2000, the Schindlers filed a motion to permit oral feeding of Schiavo. Since clinical records indicated that Terri was not responsive to swallowing tests and required a feeding tube,^[13] Greer ruled that insufficient nutrition and hydration could be ingested orally to sustain her and denied the request.^[14] The Medical Examiner in his report was more definitive and concluded that she couldn't have swallowed and thus couldn't have received sufficient nutrition or hydration by mouth to sustain life.^[15]

In 2000, the Schindlers again challenged Michael's guardianship. Their new evidence ostensibly reflected adversely on Michael Schiavo’s role as guardian, citing "that he had relationships with other women, that he had allegedly failed to provide appropriate (palliative^[16] bullet 17) care and treatment for Theresa, that he was wasting the assets within the guardianship account (according to the Schindlers, by transferring Schiavo to Pinellas County, Florida hospice "after it was clear that she was not “terminal” within Medicare guidelines" for hospices.^[17] bullet 31), and that he was no longer competent to represent Theresa’s best interests."^[18] By this time, while still legally married to Terri, Michael was in a relationship with Jodi Centonze, with whom he had fathered two children. Michael denied wrongdoing in this matter, stating that the Schindlers had actively encouraged him to "get on with his life" and date since 1991. Michael said he chose not to divorce her and relinquish guardianship because he wanted to ensure her final wishes (to not be kept alive in a PVS) were carried out.

The court denied the motion to remove guardian, finding the evidence wasn't sufficient and in some instances, not relevant. It set April 24, 2001 as the date on which the tube was to be removed.

[edit] Three appeals – Schiavo II

In April, 2001, the Schindlers filed a motion for relief from judgment citing new evidence of their daughter's wishes. Greer denied the motion as untimely under Rule 1.540(b)(5) of the Florida Rules of Civil Procedure.^[19] (Pg 65 of 146) The 2nd DCA upheld Greer's decision but remanded the issue in order to give the Schindlers an opportunity to file a new motion. Around that time, the Schindlers filed an action against Michael, which was assigned to another court. The judge, Frank Quesada, issued an injunction against removal of feeding tube. On appeal by Michael, the 2nd DCA reversed Quesada's order. Also this time, Michael filed a motion to enforce mandate of the guardianship court (that the feeding tube be removed). The 2nd DCA denied the motion. (These three decisions, all published in a single order by Florida's Second District Court of Appeal^[20], came to be known by the court as Schiavo II in its later rulings.)

[edit] Challenging the PVS diagnosis – Schiavo III

After failure in challenges to Michael's guardianship and the ruling on Terri's end-of-life wishes, her parents adopted the position that she was not PVS and began to challenge that diagnosis in court.

Schiavo's parents claim their daughter didn't meet the definition of PVS, and was in a "minimally conscious state" instead. Her parents argue that at times her actions were indicative of responses to external stimuli, not reflex or instinctive behavior. For example, the Schindlers claim their daughter smiled, laughed, cried, moved, made childlike attempts at speech, and attempted to say "Mom" or "Dad"; or "yeah" in response to being asked a question. They say she looked at them and sometimes puckered her lips when they kissed her.

On 10 August 2001, on remand from the 2nd DCA, Greer heard a motion from the Schindlers claiming new medical treatment could restore sufficient cognitive ability that Terri would decide to continue life-prolonging measures. The court also heard motions from the Schindlers to remove the guardian (Michael) and to require Greer to recuse himself. Greer denied the motions, and the Schindlers appealed to the 2nd DCA.

On 17 October, the 2nd DCA affirmed the denials of the motions to remove and recuse and acknowledged that their opinion misled the trial court, and they remanded the question of Schiavo's wishes back to the trial court and required an evidentiary hearing to be held. The court specified that five board certified neurologists were to testify, and said, ...the Schindlers may choose two doctors to participate in discovery and present their opinions at evidentiary hearing. In addition, to control the scope of this hearing and to prevent the proverbial "war of experts," Mr. Schiavo may introduce in rebuttal the testimony of two doctors of his choosing. ...we further conclude that the trial court should appoint a new independent physician to examine and evaluate Mrs. Schiavo's current condition. ...In the event that counsel are unable to stipulate to the selection of a new physician for the purposes of this independent examination, the trial court shall make the selection. (These decisions, all published in a single order by the Florida Second District Court of Appeal,^[21] came to be known by the court as Schiavo III in its later rulings.)

[edit] PVS diagnosis ruling – Schiavo IV

In October 2002, on remand by the 2nd DCA, an evidentiary hearing was held in Greer's court to determine if new therapy treatments could help Schiavo restore any cognitive function. In preparation for the trial, a new computed axial tomography scan (CAT scan) was performed, which showed severe cerebral atrophy. An EEG showed no measurable brain activity. The court viewed a 6-hour tape of Schiavo, finding her vegetative condition to be factual and not subject to legal dispute.

In accordance with the 2nd DCA's instructions, five doctors were selected to provide their expert testimony to the trial: two by Schiavo's parents, two by Mr. Schiavo, and one to have been selected by mutual agreement of the parties:

• The Schindler family selected Dr. William Maxfield (their family doctor, a radiologist) and Dr. William Hammesfahr (a neurologist).
• Michael Schiavo selected Dr. Ronald Cranford and Dr. Melvin Greer (both neurologists).
• The parties having failed to agree, the court selected Dr. Peter Bambakidis (a neurologist).

These 5 doctors examined Schiavo's medical records, brain scans, the videos, and Schiavo herself. Drs. Cranford, Greer, and Bambakidis testified to their conclusion that Schiavo was in a persistent vegetative state. Drs. Maxfield and Hammesfahr testified to their conclusion that she was in a minimally conscious state.

Schiavo's parents say her behavior in this image from one of the videos they released showed she was aware of the people around her. Most neurologists who examined Schiavo disagreed, saying that her level of brain damage made responsiveness impossible and that her behavior represented reflex or instinctive actions.

As part of the court ordered medical exam, 6 hours of video of Schiavo were taped and filed at the Pinellas County courthouse. The tape included Schiavo with her mother and neurologist William Hammesfahr. The entire tape was viewed by Judge Greer, who wrote, Schiavo "clearly does not consistently respond to her mother". From that 6 hours of video, the Schindlers and their supporters produced 6 clips totaling almost 6 minutes and released those clips to public websites.^[22]

Greer found Schiavo to be PVS and beyond hope of significant improvement. His order was particularly critical of Hammesfahr's testimony which claimed positive results in similar cases by use of vasodilation therapy, the success of which is unsupported in the medical literature.^[23] This ruling was later affirmed by Florida's 2nd District Court of Appeal, which stated that "this court has closely examined all of the evidence in the record," and "we have...carefully observ[ed] the video tapes in their entirety." The court concluded that "...if we were called upon to review the guardianship court's decision de novo, we would still affirm it." (This decision by the 2nd DCA^[24] came to be known as Schiavo IV in later rulings.)

[edit] 2003 petition

On September 11, 2003, the Schindlers petitioned the court to forestall removal of the feeding tube to provide for "eight weeks' therapy." Accompanying the petition were four affidavits from members of the Schindler family and one from Dr. Alexander T. Gimon. At the hearing the Schindlers' counsel read into the record additional affidavits from three speech professionals and two nurses.

One of the nurses, Carla Sauer Iyer claimed in her affidavit her initial training in 1996 consisted solely of the instruction, "do what Michael Schiavo tells you or you're terminated." She also alleged Mr. Schiavo said "when is that bitch gonna die?" and other similar statements. She said on 5 different occasions she tested Terri's blood sugar levels after Michael visited her and found that her blood sugar levels were so low it wouldn't even register a number. She said it was medically possible that Michael injected his wife with insulin in an attempt to kill her. Iyer stated standing orders were not to contact the Schindler family but that she "would call them anyway." Iyer stated she eventually called the police and was fired the next day.

On September 17, Greer denied the petition and wrote that "the Petition is an attempt by Mr. and Mrs. Schindler to relitigate the entire case. It is not even a veiled or disguised attempt. The exhibits relied upon by them clearly demonstrate this to be true."

Regarding Iyer's claims, Greer wrote that they were "incredible to say the least" and that "Ms. Iyer details what amounts to a 15-month cover-up [April 1995 through July 1996] which include the staff of Palm Garden of Largo Convalescent Center, the Guardian of the Person, the guardian ad litem, the medical professionals, the police and, believe it or not, Mr. and Mrs. Schindler...It is impossible to believe that Mr. and Mrs. Schindler would not have subpoenaed Ms. Iyer for the January 2000 evidentiary hearing had Iyer contacted them [in 1996] as her affidavit alleges." (Quote from pgs 5 & 6 of Greer's Order)^[25]

[edit] Terri's Law and the Wolfson Report

On 15 October 2003, Schiavo's feeding tube was removed. Six days later, following the passing of "Terri's Law", Florida Governor Jeb Bush sent armed men to remove Schiavo from the hospice. She was taken to a hospital, where her feeding tube was surgically reinserted. (8th par from the bottom of story)^[26] Part of the legislation required appointment of a GAL (Dr. Jay Wolfson) to "deduce and represent the best wishes and best interests" of Schiavo, and report them to Governor Bush.

Wolfson visited Schiavo at least daily over the course of a month. In December 2003, he submitted his report, referring to himself in the third person as "the GAL." His central finding was: "The GAL was not able to independently determine that there were consistent, repetitive, intentional, reproducible interactive and aware activities." He notes further, that when joined by her parents no success was gained in eliciting a repetitive or consistent response from Terri.

In examining medical records and consultations surrounding the case, Wolfson concludes: "[that there is] well documented information that she is in a persistent vegetative state with no likelihood of improvement, and that the neurological and speech pathology evidence in the file support the contention that she cannot take oral nutrition or hydration and cannot consciously interact with her environment." He observes further that while there appeared to be agreement about Schiavo and PVS: "the Schindlers have adopted what appears to be a position that Theresa is not in a persistent vegetative state, and/or that they do not support the fact that such a medical state exists at all."

Wolfson addresses 2 major criticisms of the parties involved: That the Schindlers would keep their daughter alive to the point of her "limbs being amputated," is not accurate according to Wolfson. He also observes that "there is no evidence in the record to substantiate any of these perceptions or allegations [that Michael Schiavo refuses to relinquish his guardianship because of financial interests or to cover up previous abuse]." In addressing the issue of law surrounding the case "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."

[edit] Oral feeding II

On February 23, 2005, the Schindlers filed a motion for relief from judgement pending medical evaluations^[27] They wanted Terri to be tested with an fMRI and given a swallowing therapy called VitalStim. The motion was accompanied by 33 affidavits from doctors in several specialties, speech pathologists and therapists, and a few neuropsychologists, all urging new tests be undertaken.^[28][29] Even though Pat Anderson, the Schindler family attorney who brought the initial motion being referenced in the judge's order, still held out hope "that Terri might be able to take nourishment orally, despite past findings that she is incapable,"^[30] Greer ordered the "removal of nutrition and hydration from the ward" without specifying in this order whether this specifically referred to "oral feeding" or merely denied the use of a feeding tube and formally denied the motion. This lack of clarity in Greer's order prompted Anderson to remind the court that "the withholding of food and water...was not ordered by the Court but by Michael Schiavo."^[31] In this order, Greer also set a time and date for the removal of the feeding tube: "1:00 p.m. on Friday, March 18, 2005."^[32]

On February 28, the Schindlers filed a motion, asking for permission to attempt to provide Terri with "Food and Water by Natural Means." This 2nd motion sought permission to "attempt to feed" Schiavo by mouth.^[33] Greer denied the 2nd motion on March 8, saying "it has become clear that the [second] motion is part and parcel of [the previous] motion on medical evaluations. The same declarations are being used for both motions and the motion appears to be an alternative pleading to the [previous] motion. Both are asking for an experimental procedure."^[34] The next day, Greer denied the 1st motion as well, citing that an affiant doctor for Mr. Schiavo cautioned that fMRI was an experimental procedure that should be conducted in an academic setting, because Terri had already undergone swallowing tests and failed, and because VitalStim had only been performed on patients who were not in a PVS. Greer noted that "[m]ost of the doctor affidavits submitted are based on their understanding of Schiavo's condition from news reports or video clips they have seen. Many are obviously not aware of the medical exams undertaken for the 2002 trial..."^[35] No stay was granted by the 2nd DCA, and on March 18, 2005, Terri's feeding tube was removed the 3rd and final time.

[edit] Notes and references

[edit] External links

Wikinews has news related to:

Terri Schiavo dies

[edit] Compilations

(legal documents relating to the Schiavo case)

• Findlaw's compilation
• Tampa Bay Onlines compilation
• Abstract Appeals compilation
• The University of Miami Ethics Programs' compilation

[edit] Information sites

• American Center for Law and Justice. ACLJ National "Religious Right" law firm. Retrieved August 30, 2005
• American Civil Liberty Union. ACLU National "Civil Rights" law firm. Retrieved August 30, 2005
• Amicus National, Inc. (2005). Legal docs, Living Wills. Site providing free living will forms on a state-by-state basis. Retrieved April 16, 2005
• Conigliaro, Matt, Esq., Editor of "Abstract Appeal" Legal Blog. (2005). THE TERRI SCHIAVO INFORMATION PAGE Retrieved August 31, 2005
• End-of-Life Choices (2005). Advance Health Care Directives: End-of-Life Choices—Make Your Wishes Known! Retrieved August 30, 2005
• Hospice Patients Alliance Retrieved August 30, 2005
• Zorn, Eric (2005). For your reference - the Schiavo case. Eric Zorn's Notebook, Chicago Tribune. Retrieved March 31, 2005

[edit] Articles

• "Before fight over death, Terri Schiavo had a life." CNN. October 25, 2003. ^[36]
• Fackelmann, Kathleen. "Schiavo not likely to experience a painful death, neurologists say." USA Today. March 23, 2005. ^[37]
• Kumar, Anita. "The Terri Schiavo case: Before the circus." St. Petersburg Times. April 3, 2005. ^[38]
• Quill, Timothy E., MD. "Terri Schiavo—A Tragedy Compounded." New England Journal of Medicine. 21 April 2005. ^[39]
• Rufty, Bill. "Doctors lament misuse of proper terminology in Schiavo debate." The Ledger. March 23, 2005. ^[40]
• Shannon, Thomas A. and Walter, James J. "Artificial nutrition, hydration: Assessing papal statement." National Catholic Reporter. April 16, 2004 ^[41]
• Wilson, Jamie. "Schiavo autopsy vindicates husband." The Guardian, June 16, 2005. ^[42]

[edit] Advocacy and commentary