[WFTR]

Thanks for the news item. I didn't know that Lousiana already had a bill ready on this issue. It's strictly about nutrition and hydration, but I'd like to see it go further into how decisions are made. I think we need three things. The are:

1. The money from a lawsuit always goes into a trust fund to pay medical expenses for the victim. The money can never be used to pay for lawyers. If any is left when the patient dies, the remainder is either given to the state or returned to the original defendant. If any is left when the patient recovers to the point of not needing extraordinary care, the remainder goes to the patient.

2. The "findings" of a judge may be appealed. The appeals courts can and should look to see whether the original judge was right on the facts of a technical case and not just whether he followed the law.

3. If the spouse of a disabled person does something that is grounds for divorce, family or friends of the disabled person may file for divorce on that person's behalf. If the facts support a divorce, the divorce will be granted.

Bill

[supercat]

Some changes to guardianship law would be good, including provisions to prevent a judge from sitting on guardianship challengs without addressing them.

Otherwise, I think it might be necessary to explicitly say in the statutes that advance directives resulting in death should only be acted upon if there is no plausible way that those directives could have been faked. Of course, that's what "clear and compelling" evidence is supposed to mean, but with judges like King George on the bench one can never be too careful.

BTW, to avoid hangups with Browning, it might be necessary to allow oral declarations in certain circumstances. Having the legislature mandate the terms might be better than having the court do it. Therefore, I'd suggest something like the following [repost from another thread]:

---

I would suggest that oral statements should generally not be "clear and compelling" in the absense of anything to authenticate them (such as a videotape, etc.) It is trivial for an unscrupulous person to attribute to people things they never said. There may be a few cases where an oral statement could constitute clear and compelling evidence, but only if all of the following apply:

1. The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible.
2. There is consensus about what was said and what was meant, the statements were clearly intended to serve as a living directive, and the claimed meaning is plausible.
3. There is a logical reason why the person making the statement was unable to personally put it into tangible form.
4. The statement is disclosed to people who can officially record it as quickly as practical.

An example of a case where purely oral statements might constitute clear and compelling evidence would be a train wreck, where an injured passenger tells others of his wishes prior to losing conciousness. In such a case, if the other passengers were to report what the passenger said as quickly as practical to officials, I would say such statements could be regarded as 'clear and compelling' evidence:

1. Unless the other passengers conspired to cause the crash, they would seem an unlikely group to conspire to invent a story.
2. There would be little confusion about the person's statements or the purpose thereof.
3. The person's decision to give the statement orally rather than writing or recordig it would be clear and logical given exigent circumstances.
4. The witnessess to the statement would be able to report it in timely fashion.

As you can see, I wouldn't outlaw all non-recorded oral statements, but I would only allow them in places where there would be no reason to doubt them. Let's see how Terri's "wishes" stack up:

1. Her wishes were heard by an openly-adulterous husband, his brother, and his sister-in-law. One of them had a very clear and obvious conflict of interest, and conspiracy by the others is highly plausible.
2. The three people witnesses Terri's claim that Terri spoke to each of them at a different time; there is thus zero corroboration. There is no particular reason to believe Terri's statements--if she made them--were meant to be enforceable as a living will. At the time Terri's statements were made, hydration by any means was not considered life support and therefore a claim that she intended them to justify the removal of same would seem implausible.
3. There is no logical reason why, if Terri wanted her supposed wishes carried out, she could not have written them down.
4. The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made.

Do you think my criteria for accepting oral statements are too rigid? Terri's siblings' hearsay testimony fails all of them.

[Emily RN]

1. The money from a lawsuit always goes into a trust fund to pay medical expenses for the victim. The money can never be used to pay for lawyers. If any is left when the patient dies, the remainder is either given to the state or returned to the original defendant. If any is left when the patient recovers to the point of not needing extraordinary care, the remainder goes to the patient.

One can only wonder if this would have discouraged a lot of the litigating of Terri's case. Greer and others may not have had any interest without the enticement of the settlement money.

[floriduh voter]

re: 25. Louisiana has a great bill. Florida could learn something from them. Is there a link to that bill that we could forward to the Fla House Judiciary Committee?

[syriacus]

The three points sound good.