Fla. lawyer recommends additional testing for Schiavo

Centre Daily ^ | Dec. 05, 2003 | SEAN MUSSENDEN

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CLEARWATER, Fla. - (KRT) - Terri Schiavo has little chance of recovering, and if future medical tests don't show otherwise, she should be allowed to die, her court-appointed guardian recommended in his report to Gov. Jeb Bush.

Jay Wolfson, a University of South Florida professor and lawyer, reached that conclusion after spending much of the past month with the severely brain-damaged woman. He also reviewed 30,000 pages of court and medical records from the long legal battle between her husband and her parents in what has become an international debate over right-to-die issues.

But after reading the report released Tuesday, Bush said the feeding tube that has kept Terri Schiavo alive for the past 13 years would remain.

"Nothing in Dr. Wolfson's report leads me to believe the stay should be lifted at this time, or that Mrs. Schiavo should be deprived of her right to live," the governor said in a statement.

Several courts have found that Terri Schiavo, who turned 40 this week, has no chance of recovering and would not have wanted to be kept alive in her condition. Her husband, Michael Schiavo, had her feeding tube unhooked in October. But Bush ordered it restored six days later after the state Legislature passed "Terri's Law" to give him the authority to intervene.

The law, which Michael Schiavo is challenging on constitutional grounds, also mandated the court choose a guardian to examine Terri Schiavo's chances for recovery and to recommend to Bush whether to keep the tube intact.

Michael Allen, a constitutional law professor at Stetson University, said the guardian's report clearly undercuts the governor's position.

"This is a bad fact for the governor, if for no other reason than yet another party - another disinterested party, as all the judges were - essentially confirmed that Terri Schiavo's medical condition is, for all intents and purposes, hopeless," Allen said. "I'm sure the governor's legal team was hopeful the report would provide some evidence that all the court decisions that came before were wrong in some respect, and this just doesn't do that."

In his 38-page report, Wolfson said that all existing medical evidence shows Terri Schiavo's cerebral cortex is "practically liquid," she cannot swallow on her own and "cannot consciously interact with her environment." But, he said, he could not recommend the removal of her feeding tube without more tests.

Terri Schiavo slipped into what doctors call a persistent vegetative state in 1990, after a chemical imbalance caused her heart to stop. Doctors conducted three tests from 1991 to 1993 to determine if she could swallow, a prerequisite for being kept alive without a feeding tube. They found that she could not.

Wolfson said that a new round of swallow tests would go a long way toward putting the issue to rest. If the tests show Terri Schiavo can recover, the governor should leave the tube in, Wolfson said. If they show the opposite, the governor should ordered it pulled and allow her to die.

"To benefit Theresa, and in the overall interests of justice, good science and public policy, there needs to be a fresh, clean-hands start," he wrote.

But, he argued, the test would be useless unless all the parties involved - Bush, Michael Schiavo and her parents, Mary and Bob Schindler - agree ahead of time on what do with Terri's feeding tube based on the results. Wolfson said he had tried to broker such an arrangement, but negotiations broke down Sunday night, the evening before the report was due.

George Felos, Michael Schiavo's attorney, said his client didn't agree to such terms but that he might in the future. He doubted, however, that Bush ever would.

"I think the governor has made it clear he's not interested in being bound by any test results," he said. "The governor and the Schindlers' opposition in this case is ideological. They think it's wrong to remove hydration and sustenance, and they want to impose their ideology on the rest of the citizens of the state."

In his statement, Bush said the guardian's calls for more tests was "encouraging."

Pat Anderson, an attorney for the Schindlers, agreed.

"Clearly Dr. Wolfson has come to the same conclusion that we have had for some time. Further medical testing is required for Terri before any further decisions can be made," she said.

Felos generally applauded the report, saying it "legitimized" the years of court rulings that upheld Michael Schiavo's quest to withdraw his wife's artificial feedings.

"He sees no basis for any of the allegations that Michael acted improperly," he said.

In another setback for the governor's case, Pinellas Circuit Court Judge W. Douglas Baird on Tuesday granted a motion by Felos stopping Bush's attorneys from taking depositions from seven people, including Michael Schiavo and the woman with whom he now lives.

The governor has argued he wants to re-examine whether Terri Schiavo would have wanted to be kept alive artificially. She left no written instructions, but her husband insists he she had made her wishes known.

Baird said that he may allow some questioning to take place later in the case.

During his monthlong review, Wolfson spent significant time with both Michael Schiavo and the Schindlers.

At the center of the issue, Wolfson said, 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."