Posted on 10/23/2003 7:48:07 AM PDT by NYer
Chris Ferrara's Legal Brief - Click here (PDF file format) to read the legal brief Chris Ferrara prepared for Terri's case. Un-freakin'-believable! If the State of Florida doesn't prosecute Michael Schiavo, I'm off to enroll in law school tomorrow.
Here are some experts from the brief relating to Schiavo's lawyer, George Fellos:
34. "On page 216, again discussing the Estate of Browning , Mr. Felos writes about the late Estele Browning...'Having spoken with Mrs. Browning when we first met, I decided, with a measure of earnest self-inflation, to purposely initiate such contact...From deep inside, I repeated, "Mrs. Browning, it's OK to leave your body. There is no reason to stay in this body. It is all right to die now. A few minutes into my meditative encouragement, I was jarred by a high pitched sarcastic cackle and the words, 'You're telling me to drop my body and you can't even get out of your head.'"'"
35. "On pages 181-182 of his book, Felos claims that merely by visualizing a plane crash during a flight he was taking back to Florida, he caused the plane to crash, and that God spoke to him at that moment to warn him: 'Be careful what you think. You are more powerful than you realize.' I was startled, humbled, and blessed by God's admoninition.'"
Comment:
Never mind Schiavo, let's get the excorcist in to go after Felos. No kidding. This might very well be an authentic case of possession.
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LifeSite Told of Struggle to Get Medical Staff to Implement Gov. Bush Order: The Inside Story on the Still Ongoing Life and Death Struggle for Terri Schiavo
CLEARWATER, FL, October 22, 2003 (LifeSiteNews.com) - The Terry Shiavo saga continues to take more ugly twists and turns. Although the heroic efforts of the Florida legislature and Governor Jeb Bush succeeded in forcing medical personnel to re-connect Terri to nutrition and hydration, implementation of Bush's order did not go smoothly yesterday and there are still fears for her life. LifeSiteNews.com learned of these disturbing details today from Debra Vinnedge of Children of God for Life who was with Terri's parents at the vigil outside the Hospice since before the feeding tube was removed. Terri's family is currently barred from visiting their daughter by order of Terri's estranged husband Michael who, with his lawyer, is still engaged in intense legal manoeuvres to ensure Terri's death. Moreover, the hospital is refusing to release any details about Terri's current condition. Vinnedge reveals that yesterday, prior to Governor Bush's 5 p.m. order to begin hydration, the Woodside hospice where Terri was staying refused to allow religious objects to be placed in Terri's room. It threw out all religious artifacts that had been left there by Terri's parents. Previously, Terri had been denied a small fragment of final Holy Communion under the pretence that she could receive nothing by mouth for fear of choking. That was while she was being slowly and painfully killed by the removal of nutrition and hydration. When the Bush executive order arrived at the Hospice by both fax transmission and official delivery, Hospice officials refused to reinsert the feeding tube, claiming there were no medical personnel to do so, despite the fact that they were the ones who removed it on October 15th. They promised to transfer Terri to a local hospital as quickly as possible. In addition, two medical doctors had been summoned to the Hospice and were denied entrance to perform the procedure as indicated by Gov. Bush. They were also denied access to observe the patient and her condition. At 6:30 p.m. an ambulance arrived to take Terri to Morton Plant Hospital in Clearwater. Upon arrival at the hospital, medical staff refused to comply with the Governor's order to re-insert her feeding tube or an IV, stating they had been threatened with litigation by Michael Schiavo's attorneys if any medical care was given to Terri. After the hospital was told repeatedly by government officials that they must comply or risk losing funding, at approximately 9:30 p.m. an IV was finally inserted - four hours after the governor's order had been given. Michael Schiavo has denied visitation at the hospital to all members of Terri's family. Terri's priest, Monsignor Thaddeus Malinowski, has also not been able to visit Terri. A request for immediate appointment of a guardian ad litem to protect Terri's medical interests and physical well-being was denied by Judge David A. Demers. Terri's parents and supporters have sent a request to federal Attorney General John Ashcroft asking him to reassert Terri's civil rights. While the bill which passed the Florida House called for a guardian ad litem, the Senate version of the bill did not. As of 4 p.m. yesterday, the last time Terri's parents, siblings and priest were able to visit Terri, she was reportedly doing well. "She greeted them with joy, she was smiling and laughed, sitting up," Vinnedge told LifeSiteNews.com. In a grateful message to supporters, Terri's parents said, "On behalf of Terri's family and everyone at the Terri Schindler-Schiavo Foundation, we thank you for your kindness, your action and your willingness to care enough to do something positive for a stranger. It is our hope that Terri will be given the chance to say "thank you" herself one day soon." Meanwhile, CNN reports today that Michael Shiavo has "received $300,000 for pain and suffering and loss of consortium" and "has declined to comment on whether there is an outstanding life insurance policy on his wife."
This case brings to mind Sunny Von Bulow. After 20 years she is still in a coma. Her husband was convicted for trying to murder her. This was later reversed in a second trial when crucial infomration was kept out.
I don't recall if there have been similar outcries about keeping her alive even though the husband sure wanted it to get at her wealth. In Sunny's case, the children have mae sure that she is kept alive.
Source, please.
Perhaps not entirely so:
"She's not a vegetable," Ms. Sauer insisted as she rested her tired feet. "She knows voices, she responds. She can follow commands, and she tries to communicate by blinking her eyelids 'yes' and 'no.'" And then there's the most important detail of all: "We used to feed her with a spoon, and she swallowed on her own."
That was seven years ago, when Ms. Sauer was a nurse at a rehab facility in Largo, Fla. At that time, Ms. Schiavo was getting physical therapy and full-time attention from skilled nurses. But the facility charged $4,000 a month, as Ms. Sauer recalls, and Mr. Schiavo soon chose to discontinue his wife's therapy and move her into the much cheaper hospice system. She's languished there for six years, tethered to a feeding tube while a fierce legal battle swirled around her.
http://www.worldmag.com/world/issue/10-25-03/national_4.asp
Terri did get physical therapy at a "rehab facility" up until 95 or 96, according to Sauer. I don't know what went into that therapy, or how long it lasted, or how how much of the settlement money it consumed.
Mr. Schiavo did say that Terri went to several hospitals and at one point had a "brain stimulator" tried on her. Cost unknown.
I don't think so. IANAL, but my understanding is that every frivolous claim in a legal brief undoes the effects of several meritorious ones. And some of the claims here are IMHO obviously frivolous.
For example, the last comment on the ADA claim notes that nothing in [the ADA] shall be construed to authorize the discontinuance of feeding/hydration. That may be true, but so what? If there's nothing in the ADA which forbids such discontinuance and there's something in such other statute that allows it, then it's legal. If there is something in the ADA which forbids such discontinuance or there's nothing in another statute to allow it, then the action is illegal but unaddressed by this claim. In short, the comment about the ADA and feeding tubes does nothing to support the claim, and weakens other aspects that would otherwise be meritorious.
I don't mean to disparage the people who are trying to fight on Terri's behalf, but sloppiness in legal procedings can be deadly. There are enough claims of substantial merit that including frivolous claims severely weakens the Schindler's case.
There are enough claims of substantial merit that including frivolous claims severely weakens the Schindler's case. "
I certainly don't see this as a frivolous suit. And your complaint doesn't seem very strong to me.
On page 17, the lawsuit actually says:
Moreover, the pertinent federal regulations for implementation of the A.D.A. specifically provide that "Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual."(cf. 28C.F.R. Ch. 1, sub part B, Section 35.130)
In other words the federal guidelines for implementing A.D.A. specifically says that the representative is not authorized to decline food and water for that individual.
So basically, you are saying it's ok for the State of Florida to go against the Federal regulations. I don't think that's what the State of Florida intended to do. That's why they came back and changed the law. The first law allowed for starving a person to death if that person had a living will, but did not address the issue if there is no living will and there is a dispute as to the wishes of the disabled.
Now with Terri's law, they have a chance to address this issue.
I don't believe most people want to starve to death. Pulling the plug on someone that is brain dead is a completely different issue. Other states allow pulling the plug, but do not allow starving a person to death.
The suit as a whole is not frivolous. But parts of it are poorly written and make frivolous points.
On page 17, the lawsuit actually says: Moreover, the pertinent federal regulations for implementation of the A.D.A. specifically provide that "Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual."(cf. 28C.F.R. Ch. 1, sub part B, Section 35.130)
In other words the federal guidelines for implementing A.D.A. specifically says that the representative is not authorized to decline food and water for that individual.
No, it says "nothing in this act shall authorize..." It says nothing about whether there exist other acts--federal or state--which could offer such authorization. I suspect that particular language probably exists to prevent someone like Felos from using the ADA to starve someone on the grounds that doing so would "improve" their condition.
So basically, you are saying it's ok for the State of Florida to go against the Federal regulations. I don't think that's what the State of Florida intended to do. That's why they came back and changed the law. The first law allowed for starving a person to death if that person had a living will, but did not address the issue if there is no living will and there is a dispute as to the wishes of the disabled.
All the above quoted text from the ADA says is that the ADA shall not istelf be construed as providing authorization for denial of food or liquid. It says nothing which would prohibit such denial if it was otherwise authorized.
Suppose I have a card in my pocket which says "Acme Fitness Center Main Facility Guest Pass--THIS CARD DOES NOT AUTHORIZE USE OF RACQUETBALL COURTS". Does the allcaps text say that I am not authorized to use the raquetball court? What if I have another card in my pocket which says "Acme Fitness Center Racquetball Court Guest Pass--THIS CARD DOES NOT AUTHORIZE USE OF MAIN FITNESS CENTER"? Would the two cards contradict each other?
Now with Terri's law, they have a chance to address this issue.
More people need to be informed of what a feeding tube is and isn't. That would be one important start.
I don't believe most people want to starve to death. Pulling the plug on someone that is brain dead is a completely different issue. Other states allow pulling the plug, but do not allow starving a person to death.
That needs to be fixed, as do a number of other weaknesses in existing law. For example, IMHO the most important is that the law which requires the appointment of a guardian ad litem in case of a potential conflict of interest between guardian and ward needs to be amended so as to make explicit certain cases in which such a person must be appointed whether or not the judge acknowledges a potential conflict of interest.
Out of curiosity, I always hear these things refered to as "starving"; is that because, except in Terri's case, they provide hydration?
In other words the federal guidelines for implementing A.D.A. specifically says that the representative is not authorized to decline food and water for that individual.
[supercat replies] All the above quoted text from the ADA says is that the ADA shall not istelf be construed as providing authorization for denial of food or liquid. It says nothing which would prohibit such denial if it was otherwise authorized.
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I disagree with you. Youve added the words the ADA shall not itself. It is not in the original brief and does change the meaning somewhat. It seems that you are objecting because of the negative in the original statement.
I also looked up the CFR Code of Federal Regulations
Here are the rules of interpretation:
Sec. 35.103 Relationship to other laws.
(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.
(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.
So Florida can pass laws giving Terri more rights, but not less rights. The Federal Government is trying to protect Terris rights. It specifically states a guardian doesnt have the right to decline food, water, or medical treatment. I think it is obvious that Florida cannot deny Terri her rights.
The ADA seems to have foreseen a case like Terris where an unscrupulous guardian could have her killed by the state for his convenience.
Here is the whole paragraph from the CFR:
Some commenters expressed concern that Sec. 35.130(e), which states that nothing in the rule requires an individual with a disability to accept special accommodations and services provided under the ADA, could be interpreted to allow guardians of infants or older people with disabilities to refuse medical treatment for their wards. Section 35.130(e) has been revised to make it clear that paragraph (e) is inapplicable to the concern of the commenters. A new paragraph (e)(2) has been added stating that nothing in the regulation authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual. New paragraph (e) clarifies that neither the ADA nor the regulation alters current Federal law ensuring the rights of incompetent individuals with disabilities to receive food, water, and medical treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights Act (42 U.S.C. 6042).
In the same way that the Civil Rights Act, prevents Florida or any other state from denying someone the right to vote because of an immaterial error or omission, the ADA prevents Florida from authorizing Terris husband to decline food, water, medical treatment, or medical services. I would say that Federal law trumps state law in this case.
http://www.hospicepatients.org/Hosp-FL-Suncoast-entrypage.html
He may be a big pro death liberal but he also knows that a good scandal helps keep the TV ratings up. (Kobe is a good example of this.) And if this doesn't qualify than I don't know what does.
bttt and someone was looking for some financials. Here's the Catholic League's Legal Brief. There's some financials in here. Ping me if it helped. FV
Here's a good thread to check out.
Missed this one last time around.
bttt. I missed this the first time around. Lots of material here that's worth reviewing at this time.
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