- The Washington Times - Monday, November 3, 2003

Florida state courts performed impeccably in determining by clear and convincing evidence that Theresa Marie Schiavo would have chosen to end life-prolonging procedures after 13 years of permanent vegetative existence. Meticulousness earmarked every proceeding over five long years to ascertain Mrs. Schiavo’s prospects of recovery and wishes. The District Court of Appeal of Florida entertained four appeals. It strained the law and procedures in favor of continued life-support. Yet in Schindler vs. Schiavo (June 6, 2003), the appellate court felt constrained by Florida statutes and a right to die expounded by the Florida Supreme Court in the case of In re Guardianship of Browning (1990) to order the withdrawal of a nutrition and hydration tube from Mrs. Schiavo.

A well-intentioned but ill-informed effort by the Florida legislature and Gov. Jeb Bush to override the court decree by statute has renewed litigation over the matter. The new law —applicable only to Mrs. Schiavo’s case — seems to trespass unconstitutionally on the separation of powers. But even if it does not, a legislature is no place for making fact-bound individual medical decisions for incapacitated patients.

On Feb. 27, 1990, Mrs. Schiavo, then age 27, suffered a cardiac arrest caused by a potassium imbalance. She has never regained consciousness. She has lived in nursing homes with constant care, is fed and hydrated by tubes, and requires regular diaper changes.

As the court of appeal elaborated in the first appeal in 2001, Theresa subsists in a permanent vegetative state according to overwhelming evidence. She is not asleep. She lacks cognition. She sports severe contractures of her hands, elbows, knees and feet. Her brain has deteriorated from the oxygen deficit occasioned by the heart attack. By mid-1996, CAT scans of her brain revealed a severely abnormal structure. Much of her cerebral cortex has been supplanted by cerebral spinal fluid that defies medical correction.

Absent a biblical miracle that would recreate her brain, Theresa is destined for an unconscious, nonsapient existence totally dependent on others.

The court of appeal underscored that a surrogate for incompetent patients should “err on the side of life … [and] in cases of doubt … assume that a patient would choose to defend life in exercising his or her right of privacy.” With regard to Mrs. Schiavo, however, the court discredited allegations of rushing to judgment by the trial court in the face of credible contradictory evidence: “[T]he difficult question that faced the court was whether [she], not after a few weeks in a coma, but after 10 years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives.”

Michael Schiavo, Theresa’s husband and guardian, did not act as her surrogate. Instead, he asked the trial court to decide her medical condition and wishes. Theresa’s parents, Robert and Mary Schindler, suspected Mr. Schiavo’s motives, and argued against discontinuance of artificial life support. They appealed adverse trial court rulings four times. In the third instance, the District Court of Appeal concluded that the parents’ supporting affidavits established a colorable claim that Theresa might elect to pursue a new medical treatment before withdrawing life-prolonging procedures. Pivotal was an affidavit filed by Dr. Fred Webber, an osteopath physician in Clearwater, Fla., who declared confidence that Mrs. Schiavo had a good chance of brain improvement with “cardiovascular medication style of therapy.”

On remand, the trial court heard additional testimony from two physicians selected by Mr. Schiavo, two by the Schindlers, and an independent expert chosen by the presiding judge. The Schindlers inexplicably declined to summon Dr. Webber. Relying heavily on the independent physician, Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Ohio, the judge concluded no current treatment held such a promise of increased cognitive function in Mrs. Schiavo’s cerebral cortex that would persuade her to continue life-prolonging measures. A fourth appeal by the Schindlers followed without result.

The District Court of Appeal explained in words that cannot be improved upon the authentic issue raised by Mrs. Schiavo’s unfortunate wretchedness under Florida law: “[T]his case is not about the aspirations that loving parents have for children. It is about Theresa Schiavo’s right to make her own decision, independent of her parents and independent of her husband. … [W]hen families cannot agree, the law has opened the doors of circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life-prolonging procedures. … [T]he trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives.”

Bruce Fein is a founding partner of Fein & Fein.

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