Well, I don't buy into conspiracy, but I sure would appreciate someone explaining in laymans terms how this is 1) legally, being permitted, considering the public information that is out there includes no living will on Terri's behalf, and 2) morally being tolerated by a medical profession sworn to the hippocratic oath.
If the judges are making the legally correct decision, explain it to us. It certainly does not appear to be the RIGHT decision.
Something like this simply should not be allowed without a properly witnessed, signed living will.
In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, [**7] Michael Schiavo, as the guardian of Theresa, invoked the trial court's jurisdiction to allow the trial court to serve as the surrogate decision-maker. [*179]
In this court's decision in In re Guardianship of Browning, 543 So. 2d 258, 273-74 (Fla. 2d DCA 1989), we described, in dicta, a method for judicial review of a surrogate's decision. The supreme court's decision affirming In re Guardianship of Browning did not squarely approve or reject the details of our proposed method. However, the supreme court recognized that HN2the circuit court's jurisdiction could be invoked in two manners:
We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
In re Guardianship of Browning, 568 So. 2d at 16 (footnote omitted).
In this case, Michael Schiavo used the first approach. Under these circumstances, the two parties, as adversaries, present their evidence to the trial court. The trial court [**8] determines whether the evidence is sufficient to allow it to make the decision for the ward to discontinue life support. In this context, the trial court essentially serves as the ward's guardian. Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record. Accordingly, we affirm the trial court's discretionary decision in this case to proceed without a guardian ad litem.
Second, the Schindlers argue that the trial court should not have heard evidence from Beverly Tyler, the executive director of Georgia Health Decisions. Although it is doubtful that this issue is preserved for appeal, we have reviewed the issue as if it were. Ms. Tyler has studied American values, opinions, and attitudes about the decision to discontinue life-support systems. As a result, she has some special expertise concerning the words and expressions that Americans often use in discussing these difficult issues. She also has knowledge about trends within American attitudes on this [**9] subject.
We have considerable doubt that Ms. Tyler's testimony provided much in the way of relevant evidence. She testified about some social science surveys. Apparently most people, even those who favor initial life-supporting medical treatment, indicate that they would not wish this treatment to continue indefinitely once their medical condition presented no reasonable basis for a cure. There is some risk that a trial judge could rely upon this type of survey evidence to make a "best interests" decision for the ward. In this case, however, we are convinced that the trial judge did not give undue weight to this evidence and that the court made a proper surrogate decision rather than a best interests decision.
Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So. 2d at 273. [**10]
In Browning, we stated:
In making this difficult decision, a surrogate decisionmaker should err on the side of life. . . . In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.
In re Guardianship of Browning, 543 So. 2d at 273. We reconfirm today that a court's default position must favor life.
The testimony in this case establishes that Theresa was very young and [*180] very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.
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 [**11] 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 as he did.
780 so.2d at 178-180.