Monday, April 04, 2005

Schiavo legal perspective

In looking further into the Schiavo case, from a medical and legal perspective, I'm now more than ever convinced that Michael Schiavo was a caring, thoughtful spouse and that Terri's parents -- if anyone -- should be the ones pilloried in the media. At one point, they said (on the record) that even if Terri developed diabetes and gangrene, they would amputate all of her limbs, and THEN, if she were to develop heart disease, they would perform open heart surgery on her. They also -- and this is the most damning thing of all -- said they would keep her alive in a persistent vegetative state EVEN IF SHE had told them she didn't want to live in that state. That's not love -- that's cruel selfishness.

This site examines the legal circumstances around the case (and similar ones) in depth:

If only people read the actual judicial texts, instead of the inflammatory hearsay on Rense, FOX, and talk radio, they'd be much less likely to be demonizing Michael Schiavo.

Unless scores of people, including doctors, legal experts, nurses, and family members were all part of a grand conspiracy, Michael Schiavo was a loving, caring man who wanted to give his wife what she wanted -- the freedom to die rather than to exist in a PVS.

There is a PDF report here which should be REQUIRED reading for anyone with an opinion about this case, particularly those who call Michael Schiavo (and Judge Greer) a murderer. It was an independent report to Gov. Jeb Bush which concluded "'the evidence is incontrovertible that he gave his heart and soul to her treatment and care."

Wolfson Report
Some very revealing excerpts:


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.


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.

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 Page 14 of 38


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. In 1989, the Florida Legislature permitted the withdrawal of artificial nutrition and hydration under very specific circumstances. In 1999, following extensive bipartisan efforts, life-prolonging procedures were redefined as “any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function.”

It is noteworthy that the general principle of artificial nutrition as artificial life support that may be removed in terminal and even vegetative state conditions is reflected in nearly all state’s laws and within the guidelines of end of life care enunciated by the American Conference of Catholic Bishops and other religious denominations.


Evidence regarding the persistent vegetative state consisted of highly credible medical testimony and documentation reflecting both early and recently performed neurological examinations and a case history that included early swallowing studies conducted multiple times nearly ten years ago. The Swallowing Test and Neurological Function The review of
the medical and clinical evidence in the case goes directly to the issues of the feasibility and value of swallowing tests and swallowing therapy, and to the relationship between neurological function and swallowing food and liquid.

Three, independent sets of swallowing tests were performed early in Theresa’s medical treatment: 1991, 1992 and 1993. Each of these determined that Theresa was not able to swallow without risk of aspiration (and consequent infection). Swallowing tests and swallowing therapy address many of the core issues in contention. If Theresa can swallow, then she can take nutrition and hydration orally, and it is argued that she would not elect to stop eating. But to orally eat and drink, Theresa must possess cognitive capacity beyond mere reflex, or she will not only fail to ingest, but could easily aspirate substances into her lungs and be subjected to infections and subsequent death.

If Theresa were capable of orally taking nutrition and hydration, this GAL suggests that Theresa’s reasoned best wishes might be not to choose to stop eating, depending upon the difficulty, burden to others and costs involved. The conduct of swallowing tests by an independent, competent clinician, shielded from the public process, would provide competent, scientifically based medical evidence as to Theresa’s ability to swallow and whether swallowing therapy could improve her capability to orally eat and hydrate.

Three general methods of swallowing test can be performed to assess swallowing capacity and swallowing potential. A bedside test examines cranial nerve function, speech potential and trials of certain food textures through spoons, syringes, straws and cups. It is relatively non-invasive and low risk, with the exception of silent aspiration – which is the unnoticed sucking of food or water into the lungs, rather than transporting it down the throat. The second is also bedside based test, call Flexible Endo Exam Swallowing (FEES). A nasal tube is inserted and spontaneous swallowing is observed, again using various textures of liquid and foods. This is a bit more objective and also has the advantage of being done at the bedside. The recognized gold standard test is the modified barium swallowing test, generally done in a hospital or at a facility that has radiology equipment.

Theresa’s three previous tests were barium swallowing tests. Swallowing therapy, if swallowing potential is identified, may consist of posture management (head and neck positioning), training to focus on the food ingestion process, holding utensils and other activities. Electrical stimulation therapy has been promoted, but there is no objective, scientific evidence as to its effectiveness or value. The ability to orally ingest food and water – to swallow substances other than saliva, is predicated on a level of cognitive capacity. Without cognitive capacity, the intentional act of oral nutrition and hydration is likely to lead to aspiration.

Eating and drinking are not unconscious processes. Therefore, Theresa’s neurological status is directly linked to her ability to swallow. Early in Theresa’s care, neurological examinations were performed to assess her cognitive capacity. Competent medical practitioners determined that Theresa was in what has been consistently defined as a persistent vegetative state – a finding that throughout the litigation was not disputed by either side.

Quite recently, the Schindlers have disputed that Theresa is in a persistent vegetative state, and in the alternative, they have argued that even if she is, she deserves to live and be maintained via artificial nutrition and hydration. Like the law, which offers prescriptive guidelines to be applied on a case by case basis, Neurology, a nationally recognized specialty within Medicine, has sought to define the elements of disease states for purposes of treatment. 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: The vegetative state is a clinical condition of complete unawareness of the self and the environment, accompanied by sleep-wake cycles, with either complete or partial preservation of hypothalmic and brain stem autonomic functions.

In addition, patients in a vegetative state show 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; have bowel and bladder incontinence; and have variably preserved cranial-nerve and spinal reflexes. We define persistent vegetative state as a vegetative state present one month after acute traumatic or nontraumatic brain injury, or lasting in least one month in patients with degenerative or
metabolic disorders or developmental malformations.
The Multi-Society Task for on PVS, Medical Aspects of the Persistent Vegetative State, New England Journal of Medicine, 330:1499-1508, May 26, 1994.

A particularly disarming aspect of persons diagnosed with persistent vegetative state is that they have waking and sleeping cycles. When awake, their eyes are often open, they make noises, they appear to track movement, they respond to deep pain, and appear startled by loud noises. 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. Terri is a living, breathing human being. When awake, she sometimes groans, makes noises that emulate laughter or crying, and may appear to track movement. But the scientific medical literature and the reports this GAL obtained from highly respected neuro-science researchers indicate that these activities are common and characteristic of persons in a persistent vegetative state. In the month during which the GAL conducted research, interviews and compiled information, he sought to visit with Theresa as often as possible, sometimes daily, and sometimes, more than once each day. During that time, the GAL was not able to independently determine that there were consistent, repetitive, intentional, reproducible interactive and aware activities. When Theresa’s mother and father were asked to join the GAL, there was no success in eliciting specific responses.

Hours of observed video tape recordings of Theresa offer little objective insight about her awareness and interactive behaviors. There are instances where she appears to respond specifically to her mother. But these are not repetitive or consistent. There were instances during the GAL’s visits, when responses seemed possible, but they were not consistent in any way. This having been said, Theresa has a distinct presence about her. Being with Theresa, holding her hand, looking into her eyes and watching how she is lovingly treated by Michael, her parents and family and the clinical staff at hospice is an emotional experience. It would be easy to detach from her if she were comatose, asleep with her eyes closed and made no noises. This is the confusing thing for the lay person about persistent vegetative states.

Theresa’s neurological tests and CT scans indicate objective measures of the persistent vegetative state. These data indicate that Theresa’s cerebral cortex is principally liquid, having shrunken due to the severe anoxic trauma experienced thirteen years ago. The initial oxygen deprivation caused damage that could not be repaired, and the brain tissue in that area continued to devolve. It is noteworthy to recall that from the time of her collapse, and for more than three years, Theresa did receive active physical, occupational, speech and even recreational therapy. There is evidence early in her records of care that she said “no” during physical therapy session. That behavior did not recur and was not further referenced.

In recent months, individuals have come forward indicating that there are therapies and treatments and interventions that can literally re-grow Theresa’s functional, cerebral cortex brain tissue, restoring part or all of her functions. There is no scientifically valid, medically recognized evidence that this has been done or is possible, even in rats, according to the president of the American Society for Neuro-Transplantation. 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.

In the observed circumstances, the behavior that Theresa manifests is attributable to brain stem and forebrain functions that are reflexive, rather than cognitive. And the substantive difference according to neurologists and neurosurgeons is that reflexive activities of this nature are neither conscious nor aware activities. And without cognition, there is no awareness. (Descartes addressed this in his proposition that it is our awareness, our consciousness that defines our being: “Cogito, ergo sum”. This logic would imply that unless we are aware and conscious, we cease to be.) By all measures in the literature, Theresa has beaten the odds in terms of surviving her persistent vegetative state condition. While younger persons fare better than older victims, life spans rarely, according to the American Academy of Neurology, exceed ten years following the onset of the condition. Persons who have been comatose have worse outcomes than those who have not. But Theresa has also far outlived any documented periods from which persons in persistent vegetative states have emerged in any functional capacity. The reasonable degree of medical certainty associated with her diagnosis and prognosis is very high.


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