Posted on 11/11/2003 10:17:59 AM PST by george wythe
Gov. Jeb Bush on Monday moved to block any quick action on the constitutional challenge to Terri's Law, a bid that could keep Terri Schiavo alive for at least as long as it takes to appeal a procedural issue.
Bush received an automatic stay of Michael Schiavo's lawsuit against him and Attorney General Charlie Crist by filing a notice of appeal on a decision by Circuit Judge Douglas Baird.
Now, before any constitutional challenge to Terri's Law can be decided, both sides will have to make their cases before the 2nd District Court of Appeal on whether the lawsuit was filed in the right county and whether the governor was properly notified that he is a defendant.
Michael Schiavo's attorney accused Bush of engaging in ``shameless delaying tactics.''
``The governor wants to delay this case through any possible legal maneuver for as long as he can,'' attorney George Felos said. ``I wish the governor would be a man about it and stand up and defend the law. He is almost like hiding in the bushes with his tail between his legs.''
Last week, Baird denied Bush's motion to dismiss Schiavo's lawsuit on the grounds that it should have been filed in circuit court in Tallahassee rather than in Pinellas County because the governor traditionally enjoys a home venue privilege.
Also, Bush complained he was not properly served notice that he was being sued.
Baird said a legal concept known as the ``sword-wielder exception to the home venue privilege'' allows citizens to defend themselves from government action in their home county.
Also, Bush waived his right to complain about not being properly served with the lawsuit when one of his attorneys participated in an emergency hearing Oct. 21, the night Schiavo's lawsuit was filed, the judge said.
That same night, Bush used the new state statute dubbed Terri's Law to order that a feeding tube be reinserted into Terri Schiavo's stomach so she could again receive liquid nutrition after almost seven days without food and water.
The feeding tube was removed Oct. 15 on court orders after an almost 5 1/2-year legal fight between Michael Schiavo and his wife's parents, Bob and Mary Schindler.
Terri Schiavo's brain was damaged in 1990 when she suffered heart failure at the age of 26.
The now 39-year-old woman has been in what her husband's doctors term a persistent vegetative state ever since. In a nonjury trial in January 2000, Circuit Judge George Greer agreed with Michael Schiavo's contention that his wife would not want to be kept alive with no hope of improvement.
The Schindlers contend their daughter reacts to them and could improve with therapy. In addition to battling their son-in-law in court, they have mounted an Internet-based public relations campaign featuring snippets of video that appear to show Terri Schiavo smiling at her mother and following a balloon with her eyes.
In August, Bush cited tens of thousands of calls and e-mails from Schindler supporters as his reason for seeking to intervene in the case.
Two months later, the Legislature responded by enacting Terri's Law, which gave Bush the power to stay a court order. The law also provided for the appointment of a guardian ad litem to investigate the case.
In a Nov. 6 letter to the new guardian, University of South Florida Professor Jay Wolfson, Bush requested a meeting to discuss issues the governor wants Wolfson to investigate.
Arrangements for a meeting were being discussed Monday, Bush spokesman Jacob DiPietre said.
Meanwhile, Michael Schiavo's attorney said he will ask Baird to lift the stay on his client's constitutional challenge to Terri's Law. The law violates Terri Schiavo's right to refuse medical treatment and improperly grants the governor power to interfere in a court case, Felos said.
Terri Schiavo has more to lose than Bush does if the stay remains in place, Felos said. It is a matter of her rights being ``violated on a daily basis'' versus Bush ``having to defend the case on its merits even though the sheriff did not knock on his door and serve him with a summons.''
that's a lie that's been debunked over and over again on FR.
why do some people here want so desperately for it to be true?
Hey , here's a thought/opinion-If he was issuing orders for her care- he was acting WAY OUT OF THE SCOPE OF HIS PRACTICE as a nurse.
How about the severe contractures Terri has? He said no Range of Motion- what did her doctor say? What was in the Plan of Care for Terri? How about her teeth? His statement "she doesn't eat"- and he's supposed to be a nurse? All this information/testimony needs to be sent to the Nursing Board- In my opinion. The preceeding is entirely my opinion, yadda, yadda, yadda......
Perhaps he still thinks he still lives in the US, so decided to work within the framework of the checks-and-balances system and the law instead. Could be. And plain common sense, honor and basic morality couldn't have anything to do with it. I mean, those are just so outmoded. < /sarcasm>
How on earth he continues is something I can't fathom!
November 2002, Judge Greer's decision
June 2003, Second District decision
All the blockquotes are from the Second District decision, 2003.
In 2001, the Schinlers provided an affidavit by Dr. Webber about a new treatment that could help Terry. On remand, the appeal court using such affidavit ordered the trial court to rehear the case, allowing Dr. Webber to testify.
In 2002, when given the opportunity to testified in person, Dr. Webber was a no show.
In our last opinion we stated that the Schindlers had "presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and sound or to communicate or respond cognitively to those perceptions." Schiavo II, 792 So. 2d at 560. Although we have expressed some lay skepticism about the new affidavits, the Schindlers now have presented some evidence in the form of the affidavit of Dr. [Fred] Webber, of such a potential new treatment.
On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.
Nevertheless, the trial court again listen to the evidence, and allowed 5 experts to testify; 2 chosen by the Schindlers, 2 chosen by Schiavo, and 1 chosen by the court.
Extensive videotaping of the doctors examining Terry were provided to the court:
Instead, the parents provided testimony from Dr. William Maxfield, aboard-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.Did the Schindlers presented new evidence to back up their claims?Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy video tapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.
Having failed to provide the promised evidence that new treatment could help Terry to the level that Dr. Webber had sworn in his affidavit, the Schindlers tried to switch the subject by now claiming that Terry was not in persistent vegetative state:On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions. He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue. These therapies cannot replace dead tissue.
Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex. The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state. Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bambakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.Was Judge Greer right?The guardianship court determined that Mrs. Schiavo remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, ,the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube.
We have concluded that, if we were called upon to review the guardianship court's decision de novo, we would still affirm it. The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained.
The appellate court concluded:
We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment. At the conclusion of our first opinion, we stated: In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten 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. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question.
Just providing both sides of the story about Pearse.
This is the first time that I'm aware of, that the other two branches are actually "checking and balancing" the courts, in modern times. And the libs are taking it very badly.
Oh, the appellate court was, in great part, basing much of their decision on what those doctors said....and it was especially important that the trial court (i.e., Judge Greer) have its own picked out, the neutral doctor, because Felos and the parents couldn't agree on one. But, we've already seen the "neutral" doctor that "Judge" Greer selected, please refer back to my post During the 2002 trials,
the court ordered that two physicians would be chosen by Michael Schiavo, two would be chosen by Bob and Mary Schindler (Terri Schiavo’s parents) and one would be appointed by the court as an independent examining physician. All five physicians would later give testimony to the condition of Ms. Schiavo. The independent physician, Dr. Peter Bambakidis of Ohio, would testify in favor of Michael Schiavo in that Ms. Schiavo was in a persistent vegetative state and without hope of recovery.Supporters of the Terri Schindler-Schiavo Foundation have learned that Dr. Bambakidis and attorney George Felos may have had a personal relationship prior to Dr. Bambakidis being assigned to the case on April 24, 2002.
unless the legislature has passed another special law, you don't get to vote on this one.
About what, exactly, George? Post a link to the Greer decision appealed/and the appellate opinion and then ask with specificity what it is they agreed with him on. The original issue, btw, is that Greer is a farce, not Gov. Bush.
I posted the links. Is that a Yes?
In 2003, did the Second District Court of Appeals also agree with Judge Greer's ruling? Yes
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