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In the Schiavo case, Terri's husband and parents disagreed over what they believed Terri would want. Michael went to court and asked the court to act as Terri's surrogate and determine who was correct about what she would have wanted. In essence, he asked the court to do what courts often do -- resolve factual disputes between parties by hearing from each side and determining which side's evidence is more persuasive. The court held a trial, heard the evidence the parties wished to present, and determined that the evidence clearly and convincingly showed that Terri would not choose to continue receiving nurishment through a feeding tube in her present condition. That decision was upheld on appeal.

In my personal view, the misunderstanding that Terri's husband made the decision to remove Terri's feeding tube has been an ongoing source of undeserved scorn for Florida's judiciary. A great number of people have reacted to this misbelief by questioning the wisdom and even the legitimacy of a court system that would simply do whatever a spouse says, even if it means to end the other spouse's life. Add in accusations that the spouse seeking to pull the proverbial plug is driven by a desire to control the couple's assets or obtain life insurance proceeds, or that the other's medical condition is the result of spousal abuse, and suddenly the judiciary looks like a gaggle of puppets.

The Florida judiciary is no assemblage of dolts. It is an honorable branch of our state government, operated by talented and often extremely wise people who attempt to promote the ends of justice in every case they encounter. Terri's wishes were explored in a full trial, with evidence on all sides, and a court weighed that evidence and reached a decision on what she would do. That decision was appealed and affirmed. It was also questioned in a second trial on a new issue raised by Terri's parents, but the result remained the same, and that too was affirmed on appeal.

I understand that people disagree with the court's decision. Some believe the court made the wrong choice. Others don't know but believe that if there's any question at all then the error should be on the side of continuing the medical treatment that's keeping Terri alive. I was not at the trial, and if my experience has taught me anything about trials it's that they're very difficult to second guess unless you were there. Even reading the entire transcript and examining the evidentiary exhibits is often not enough to give you the perspective of the factfinder, be it a judge or a jury. So I have no opinion on whether the court "got it right."

I also appreciate that Florida law requires the person's wishes to be determined only by clear and convincing evidence, not a simple preponderance of the evidence or by uncontested evidence. The trial judge determined that Terri's wishes were shown by clear and convincing evidence, and the appellate court agreed that such a high level of evidence existed.

I will conclude this post with a poignant excerpt by Judge (now Chief Judge) Altenbernd, who four years ago this month wrote the appellate court decision affirming Judge Greer's decision regarding Terri's wishes:

[T]he 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.

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 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 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.

http://abstractappeal.com/schiavo/schiavoposts2005.html

Schiavo Thoughts: The Autopsy Report
The release of the Sixth Circuit medical examiner's report on Terri Schiavo's autopsy answered many questions. It also left some significant questions unanswered, and it offered one surprise. After taking some time to examine the report closely, here are my thoughts.

1. Persistent Vegetative State. In the second trial regarding Terri's medical condition, medical doctors offered by Michael, an independent specialist appointed by the court, and the trial court itself found that Terri was in a persistent vegetative state with no reasonable hope of recovery. Evidence to the contrary was rejected as not credible. The medical examiner's report explains that whether someone is in a persistent vegetative state is a clinical diagnosis that his office cannot evaluate after her death. However, the report does offer findings that are relevant to the PVS diagnosis.

a. The medical examiner from the Tenth Circuit served as a consultant neuropathologist. He found that Terri's brain was very much atrophied. It weighed half of what a normal brain would weigh and approximately 75% of what Karen Ann Quinlan's brain weighed at her death. Karen Ann Quinlan spent 10 years in a persistent vegetative state.

b. The surprise I mentioned at the start of this post concerns Terri's vision. The consultant neurologist's report finds the tissue volume loss in Terri's brain to have been worst in the bilateral occipital lobes, and the Sixth Circuit medical examiner concluded Terri suffered from cortical blindness. If I understand this correctly, she was not blind in the sense her eyes could not see, but the portion of her brain that would receive information from her retinas did not exist. I'll leave it to the physicians out there to say for sure, but it would seem that these results support the court's finding that any eye tracking Terri performed was at best reflexive and not the product of conscious thought. Her eyes could perceive light, but the portion of her brain that would process those perceptions did not exist.

2. Ability To Recover. I don't read the report as directly addressing whether Terri had the ability to recover, but in the press conference given by the medical examiner with the report's release, the medical examiner succinctly said that Terri could not recover. The damage to her brain was extensive and irreparable. This supports the trial court's decision that there was no reasonable medical probability that Terri's condition could improve to the point where she might change her mind about withdrawing the feeding tube.

3. Trauma. Of the high profile issues in the Schiavo saga, the one addressed with the greatest certainty seems to be the trauma issue. The report finds the evidence inconsistent with the notion physical trauma caused Terri's collapse or had been inflicted at the time of the collapse. The report relies on medical examinations conducted at the time, as well as observations of Terri's body at her death. The examiner's conclusion was not based on a mere lack of evidence of trauma but on evidence that was affirmatively inconsistent with trauma.

These findings provide a medical complement to what we have already seen from both the court system and law enforcement. Those who have suspected or accused Michael of abusing Terri and causing her collapse would seem to be without support.

4. Ability To Eat. The trial court concluded that Terri could not be fed orally. The medical examiner's report agreed, concluding that Terri was dependent on her feeding tube, and had she been fed sufficient food to sustain her, she certainly would have aspirated it. Without naming anyone, the report mentions caregivers' claims they had fed Terri orally at times, saying such feedings were "potentially harmful or, at least, extremely dangerous" to Terri.

5. Cause Of Collapse. A sizeable portion of the medical examiner's report is appropriately devoted to what may have caused Terri's collapse. The medical examiner rejected bulimia because the best evidence to support that theory -- very low potassium levels observed after her collapse -- could have been explained by the treatment she received to revive her. The medical examiner also rejected strangling and physical abuse, as discussed above, and found no evidence of cardiac anomalies.

People have already written me to ask whether these findings undermine the results of the 1992 malpractice trial. Recall that Michael brought malpractice claims against Terri's physicians. Terri had been trying to become pregnant, but her monthly cycles had stopped, and supposedly proper tests by those treating her could have brought the bulimic situation to light and avoided her collapse. One doctor settled and another went to trial. A jury agreed with Michael's theory and awarded damages, finding Terri partly responsible, and the case then settled for a lesser amount while it was on appeal.

I do not think the medical examiner's conclusion that insufficient evidence supports a finding of bulimia undermines the trial's result. The medical examiner did not rule out that Terri's dieting habits, such as taking pills with caffeine or drinking substantial amounts of iced tea, could have caused or contributed to her collapse. He found that the evidence that would prove or disprove such a finding had not been collected or maintained, but in the malpractice trial apparently there was little or no challenge that Terri collapsed due to her dieting habits and a low potassium level. The jury agreed Terri's dieting habits caused her collapse based on the evidence and arguments presented.

In the end, the official cause of Terri's collapse remains undetermined. It might be emphasized, though, that the cause of her collapse was not directly at issue in the litigation over whether she would want her feeding tube removed and whether some treatment might help her substantially improve to the point where she would not want the tube removed. Concerns about the cause of her collapse were injected into the feeding tube litigation in 2002 -- twelve years after the fact and after two trials on her wishes and her condition -- through claims that Michael attacked Terri and provoked the collapse. Those claims were intended to discredit Michael and cast a criminal pall over the situation, which to an extent is what happened. But one of the medical examiner's strongest findings was that the evidence is inconsistent with the notion anyone caused her collapse by beating or strangling her.

When everything is said, the medical examiner's report substantiates that the court system did its job well in handling Terri's case.
...posted by Matt Conigliaro