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The Day We Hit Rock Bottom

by Pamela Hennessy

On March 31, 2005 and much to my chagrin, I found myself agreeing with conservative pundit, Rush Limbaugh for the first (and possibly last) time in my life. Only hours after the death of Florida woman, Terri Schiavo, Limbaugh opened his daily talk show program with the assertion that all Americans should mark this date on their calendars as “the day our country hit rock bottom”.

He’ll get no argument from me.

On March 31, after over 13 days without the provisions of food and fluids, Terri Schiavo – age 41 – died in a Florida Hospice. Some would call it the end of a long battle for life and others would see it as the end of years trapped in a body she no longer wanted.

I saw it very differently. I saw it as the most outrageous and excruciating invasion of privacy ever inflicted on an innocent person by our government and elected officials.

While some were railing the United States Congress and the Governor of the State of Florida for trying to intervene on Ms. Schiavo’s behalf, most – if not all – missed the point of how the state government itself encroached her personal privacy in ordering that she die.

Terri Schiavo committed to no living will or advanced medical directive prior to her initial injuries in 1990. She left no written instructions as to her medical treatment desires or whether or not she would deny herself any specific healthcare intervention.

But a state court ordered her dead.

This point is not to be missed. It was not until 9 years after her initial injury that Florida Statutes held it lawful to remove enteral nourishment (tube feedings) from non-dying patients – and this was only under certain circumstances. In 1999, and after some considerable schmoozing to the legislature from a panel convened to advise on the ethics at the end of life, the statutes were changed to allow for the removal of enteral nourishment from patients determined to be in a ‘persistent vegetative state’.

Funny thing about that particular advisory panel is that a number of its members (Mary Labyak, Lofty Basta, Michael Bell, etc.) were co-workers to attorney George Felos at the Hospice of the Florida Suncoast. Felos represented the legal interests of Michael Schiavo in guardianship matters as well as in his campaign to affect his wife’s death by pursuing the removal of her feeding tube.

Even more uncomfortable is the fact that original petition to discontinue Terri’s enteral nourishment was filed to the court in 1998 – more than a year before such a petition was even legal.

The petition was accepted into the court’s docket by Judge Mark Shames. This judge was previously attorney Mark Shames who had briefly counseled the parents of Terri Schiavo (Robert and Mary Schindler) in their efforts to remove Michael Schiavo as their daughter’s guardian.

Should Shames have recused himself entirely? Practical ethics say you can bet your backside on that. Should he have entertained Schiavo’s petition in 1998? Considering the law of the day, one can only conclude that the answer is no.

From there, Terri’s case grows exponentially odder and odder.

Carrying on for nearly 7 years, the matter of Terri Schiavo played out in the courts, on the internet and in the hearts and minds of many people across the globe.

In the end, Sixth Judicial Circuit Judge George W. Greer ordered that Michael Schiavo remove all forms of nutrition and hydration from his brain injured wife (though the judge’s only jurisdiction was the matter of the feeding tube) and ordered the Pinellas County Sheriff’s Department to thwart any effort by Florida’s social welfare agency (The Department of Children and Families) and the Florida Department of Law Enforcement from providing her aid or protective custody. Snipers were positioned upon the rooftops of buildings surrounding the Hospice where Terri lay dying, presumably to bring down anyone interfering with her death process. Armed guards searched her blood family at three separate check-points before they were allowed to see her. Judge Greer ordered that her family would not be allowed to have her to die at home or be able to provide her with the Catholic sacrament of Viaticum (final communion) naturally.

But the Congress interfered?

Examining the history of the Schiavo case is a good exercise in understanding precisely where the privacy issue arose and it had virtually nothing to do with the Congress’s actions, bumbling as they may have seemed. It had everything to do with the state court.

At the end of the day, without rock-solid proof of her wishes and based on laws passed years after her injury, the state court (in this case, Judge Greer) ordered that Terri was simply better off dead. Only hearsay (which is arguably inadmissible in probate proceedings of this nature) was offered as ‘clear and convincing’ evidence of her death wish. Additionally, Terri Schiavo could never have legally consented to what was actually done to her. It simply was never legal, during the years she remained in full capacity and able to make medical treatment decisions, to dehydrate a non-terminal human being to their death. The courts overreached into her life, her desires and, ultimately, her demise.

That’s encroachment if I ever heard of it.

On the other hand, the Congress only entitled her parents to a de novo review of the state court case. Hardly the gross intrusion some fire-spitting columnists have claimed it to be.

I’m a firm believer in privacy and further believe that Terri’s was compromised – not by the Congress, but by the circuit court judge who committed her to a death she could never have legally consented to.

In June, the results of Terri’s autopsy were presented to the public and the media by Pinellas and Pasco County Medical Examiner, Dr. Jon Thogmartin. Through a thorough and deliberate examination of the facts, Thogmartin concluded that nothing in the forensic pathology was inconsistent with a clinical diagnosis of persistent vegetative state. However, he strongly cautioned those in attendance at his presentation that forensic pathology, post-mortem, could neither confirm nor deny a clinical diagnosis. It mattered not to the press, who quickly tapped out articles saying Michael Schiavo had been vindicated.

Of course, that’s not even close to what Thogmartin reported, but why waste time on pesky details like that?

The only important thing to the media was that the public had a mechanism for absolution based on pathology that some neurologists have already found fault with. It’s easier to consider a murder just if you can hold on to the belief that it was the ‘clinically appropriate’ thing to do.

Since killing is never appropriate in a healthcare environment, it leaves one to wonder what relief for privacy and safety patients like Terri Schiavo can expect in the future.

Michael Schiavo also announced that he would publish autopsy images of Terri’s brain some time soon. Perhaps his lawyer, George Felos (who has argued this case as an issue of privacy), might wish to have a word with Mr. Schiavo before that happens.

The final insult would certainly have to be the resting spot where Terri’s ashes were interred. In a quiet place, under a handsome oak and close to a pond that features a dancing fountain, sits a bench and stone marker in her ‘memory’. The marker is emblazoned with “I kept my promise” as a tribute to Michael Schiavo’s determination and certainly not to Terri’s life. It would seem that even in death, she was controlled and encroached upon.

People who don’t bother to read between the lines will continue to accuse the Congress and Florida’s Governor of trespassing upon Terri Schiavo. Those who understand what actually happened see others as the guilty parties.

Don’t get used to me saying this, Mr. Limbaugh, but you were right. We hit rock bottom.

http://www.pamelahennessy.com/blog/