Guardian Ad Litem Report on Terri Schiavo (everyone should read this)

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

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 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.
[break] 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.

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.

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.

These general principles are in no way intended to encourage or condone suicide or assisted suicide. But they reflect the acceptance of artificial nutrition as artificial life support that may be withdrawn or withheld as a matter of public policy, when these decisions capture the intentions of the person and with the premise that people should not be required to remain "artificially alive", or to have their natural peaceful deaths postponed and prolonged if they would otherwise choose not to, and that they should be allowed to die with dignity, and return, if their beliefs so accommodate, to God.

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.

Justice Scalia has admonished us to rely upon and accept the role of state lawmakers and laws to address issues of this very nature. Though his point of reference was Missouri law relative to an evidentiary standard, his message remains that it is up to states to establish the rules and guidelines in these matters.

"I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide - including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable." (emphasis added) Cruzan v. Director, MDH, 497, U.S. 261 (1990)

Justice O'Connor reinforces the High Court's view that it is to the states and their legislative process that the Supreme Court turns to grapple with these matters:

"Today we decide only that one State's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents' liberty interests is entrusted to the "laboratory" of the States, New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), in the first instance." Cruzan v. Director, MDH, 497, U.S. 261 (1990)

And even if we are not happy with the result in a case – or the application and interpretation of the law, we are reminded by Chief Justice Renquist, writing for the Court that general rules of law – indeed, even the law itself, is neither flawless nor faultless:

"But the Constitution does not require general rules to work faultlessly; no general rule can." Cruzan v. Director, MDH, 497, U.S. 261 (1990)

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.

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).

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.

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 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.

The parties cooperated completely with the GAL during the thirty day investigation, analysis and report preparation. The issue of feasibility and value, raised in the court charge, and discussed throughout this report, provided the basis for very serious discussions among the parties regarding an agreement to pursue an alternative process in order to resolve the disputes in this matter and gain closure for Theresa.

Of the Schindlers, there has evolved the unfortunate and inaccurate perception that they will "keep Theresa alive at any and all costs" even if that were to result in her limbs being amputated and additional, complex surgical and medical interventions being performed, and even if Theresa had expressly indicated her intention not to be so maintained. During the course of the GAL's investigation, the Schindlers allow that this is not accurate, and that they never intended to imply a gruesome maintenance of Theresa at all costs.

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.

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.

Probably because there was no sign of injury, but there was cardiac arrest brought on by a potassium imbalance due to bulimia. Hospitals aren't stupid - they're able to recognize spousal abuse injuries. There were no such injuries in this case.

This is a very late response to what can be considered some rather ill-informed comments regarding injuries from abuse.

I have been spending a lot of time studying this case because it is the classic case of abuse that has ever been publicized where the victim is the one who has been executed, and the perpetrator has been allowed to go about free as a bird.

First of all, anyone who continues to believe the bulimia line needs to eat humble pie. Terri did not suffer from bulimia. She did not exhibit any of the signs of bulimia. The outcome of that malpractice lawsuit should have been in the negative because of the lack of evidence of the existence of bulimia. The real cause of those results comes down to the emergency treatment that she received at the time that she collapsed.

Second, all of my own research on those results did not point to bulimia but to asphyxiation, probably attempted strangulation. Despite the fact that there has been mention that there were no signs of attempted strangulation, I still believe that this is the most probable cause of her collapse. In the past statistics have shown that more than 60 per cent of attempted strangulation cases never make it to court because of the lack of physical evidence. The police called to the scene of such a situation need to be specially trained to look for the signs that are not necessarily visible to the eye.

Third, I have no intention at this point in time of dealing with the autopsy report. There are some aspects of this report that are seriously flawed in the conclusions that have been reached. I need to do further research and study on the subject so that I can understand the particular flaws that have thrown up a smokescreen over the truth of this situation.

Fourth, according to that same autopsy report, the area of Terri's brain that controlled hearing was not damaged. She had cognitive function but she also had dysphasia and that meant she could not express herself, even though it is reported in her medical records that she used words such as "pain". If she had been totally comatose as is suggested by most people who have not understood the complexities of this case then the staff looking after her would not have recorded her saying "pain" or "stop".

Fifth, this concerns the other forms of abuse in this case. According to Florida law, where the death of a vulnerable adult is caused by neglect then this should be considered as a homicide. When Michael Schiavo attempted to prevent Terri from receiving antibiotics in 1994 and again in 2003, he acted in a criminal manner, and this criminal activity should have been investigated, ending in Michael Schiavo being charged with attempted homicide. The fact remains that in this case the Florida statutes pertaining to a vulnerable adult were ignored. When Michael Schiavo stopped all forms of therapy he was attempting to worsen Terri's steadily improving condition.

I did read again what was in the Pearse report where it states that Michael finally realised that she would not get better. However, this statement from Michael Schiavo was just more of his lying bulldust. The withdrawal of therapy for Terri was tantamount to criminal neglect. At autopsy Terri's brain was shown to have been in a very wasted state. What must be remembered is that her brain was affected by both the dehydration and the neglect caused by forced inactivity. This is criminal neglect and abuse of a vulnerable person. According to the affidavits of more than one carer, if anyone was caught giving Terri therapy they faced being sacked by the facility. This is the same as standover tactics and also a criminal offence since the staff were not allowed to carry out their ordinary duty of caring for a vulnerable adult.

I would hope that as the dust settles that those people who have been hysterical enough to claim that Terri should die, just because the husband wanted the balance of her money, will recognize that he was a very abusive man and that this whole case was based on ulterior motives, giving him the protection of judicial sanction for the completion of the murder of his wife.

How could he try to isolate her from her family when they lived with her family the whole time they were married. Including when she collapsed and he continued to live with them for three more years. Also I beleive they would have know if there was abuse in their home, but maybe not. I know if my daughter and her husband had lived with me for three years after they were married, I would have know if there was abuse and stopped it.

But you are wrong. They did not live with her parents the whole time that they were married. They lived by themselves when they first moved to Florida and they had to stay with Terri's parents for a time because Michael was unemployed and they could not survive on one income.

No one said that the abuse was ongoing. However, there is evidence, provided by Terri's co-worker, that when the Schiavos were living in an apartment, (and not with her parents) that Michael was being abusive and that she often came to work with bruises. This co-worker also reported that Michael used to check the odometer of Terri's car and would get abusive if he thought that she was spending too much money.

People seemed to be confused about the nature of abuse. There is more than just physical abuse. It is mental abuse that causes most of the scarring to a person who has been abused. This is the kind of abuse that Michael had inflicted upon Terri prior to the incident in February 1990.

I have noted that a lot of what Michael Schiavo says does not stack up all that well in the credibility stakes. He has been lying about a lot of the facts of this case. It is true that he hid medical documents from her parents. They had to get the court to approve the release of those documents. That is how they found out about the bone scan results. Until 2002 they did not know of the existence of that bone scan report. A lot of information remained hidden in this case. That is why Michael Schiavo in my eyes continues to lack any form of credibility.

To this I will add that he claimed under oath that Terri's mother told him to put down her cats, but that was a blatant lie. The vet who euthanaised the cats stated that it was Michael alone who insisted that they be put down. This happened at the time he was dating Cindy Brasher and prior to the finalisation of the malpractice lawsuit.

Also, when did bulimia cause broken bones
Actually, loss of bone mass resulting in very brittle bones and accompanying breakage, is one of the symptoms of Bulimia. Lack of proper nutrition and all.

How stupid can some people be?

I don't know. You tell me. But I do know they can be very uninformed.

I agree that when someone has bulimia that a loss of bone mass can cause fractures etc. However, in 199o when Terri first collapsed, and in 1991 when the bone scan was performed she did not have at the same time a dexa scan that is necessary to measure bone density.

The bone scan performed on Terri was not able to diagnose osteoporosis and as stated by Dr. Walker in his testimony it is not the means by which osteoporosis is diagnosed. This is one area of the autopsy report that I believe to have flawed conclusions, since the M.E. has relied upon information from the Schiavo lawyers to make his assessment of the pertinent facts.

At the time of her collapse Terri was a healthy 25 year old woman. She did not exhibit any signs of bulimia. There were no purgatives in the house and there was no other evidence that she had been vomiting up her food that would have been detectable through further testing at the time. The only information regarding alleged bulimia has come from one source - Michael Schiavo. It is doubtful that Terri would have been consuming something like 15 litres of iced tea per day. That is also from Michael Schiavo's imagination - a necessary cover for what I believe was a crime scene.

The osteoporosis at the time of death was in fact the result of 15 years of being bedridden. During the first few years of therapy there is little chance that she would have developed such severe osteoporosis, however the further 10 years of neglect and refusal to allow any form of therapy would have caused the osteoporosis to have developed to such an advanced state in a young woman. I have no doubt that Michael Schiavo planned on this neglect so that he could claim that her condition was caused by bulimia (osteopenia being a symptom of bulimia) rather than by his abusive behaviour.

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