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.
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.