I spent some time early this morning writing an email in response to a common question, and rather than keep answering it, I'm going to post my response here, and in the future I'll just refer folks to this post.
The question was essentially this: Michael only mentioned Terri's supposed wish not to be kept alive this way only after the medical malpractice trial was over, so doesn't that show he just made it all up after he got the money? My original answer was rather short. I mentioned the "realities of litigation" and how it didn't surprise me that the issue never came up in the earlier trial. The reader then asked me to explain what realities I was talking about. Here's my response:
Hmmm. "Realities of litigation." It means a lot of things. We have an adversarial system of justice. The way it works is that we pit two sides (or more) against each other, each charged with presenting its best case on the law and the facts to the court and, sometimes, the jury. Decisions are then made based on what's presented, and the decisions bind everyone involved. Ethical lawyers don't lie and don't permit anyone to be defrauded, but they also aren't neutral. They have clients who require advocacy. So if I am Michael's attorney in the malpractice case, there is no way I am going to ask him at a deposition or at trial about whether Terri expressed any desire not to remain in a state like she's in. I would ask privately, but not when the answers are being transcribed. That's something for the other side to talk about, if they choose to do that.
But would the other side ever choose to talk about it? If the doctors' attorneys had asked him about it in deposition, then you and I would not be having this conversation. But they apparently didn't ask, and that's not illogical, because the answer either way was probably never going to come up at trial. Think about it. Imagine you're on a jury in a medical malpractice case. The plaintiff is a woman who's in horrible shape, the defendants are blamed for having caused her injuries by failing to diagnose and treat her properly, and the husband is seeking money to care for her for the rest of her life. How will you react to a defense by the doctors that says we didn't do anything wrong here, sure we treated her but there was no way for us to know she was bulimic, we were treating her for pregnancy problems not eating disorders... You may disagree with the defense and find the doctors liable but you probably won't be mad at them. Now, how will you react if the doctors also defend by saying and by the way this woman's really, really hurt, so hurt that she's never going to recover, and she told him she wouldn't want to live this way, so at some point he's going to let her die and jury you shouldn't give him money for her lifelong care even if we were negligent because there's never going to be any lifelong care... How would you react to that defense? You and your fellow jurors would probably be furious with the doctors for saying such things, and the verdict might reflect that furor with a ridiculous sum of money.
So I can't believe any lawyer representing the doctors would bring the matter up, either. The result: this issue is not coming up at the malpractice trial. I'd be surprised if any lawyer disagreed.
In the end, Michael's testimony that he wanted to care for Terri for her and his whole lives can be viewed in multiple ways. On one hand, it's consistent with someone who believed he wanted to care for his wife to bring her back, but who later lost hope when doctors convinced him they'd done all they could do. Keep in mind, the malpractice lawsuit was filed very early on, as you would expect to happen. Trial didn't happen for years, and Terri received tremendous care, attention, and therapy through 1994 -- read the GAL's report and the court decisions for that chronology. The view she would never recover developed slowly, over time, and the degeneration of her cerebral cortex apparently wasn't seen for years. Perhaps Michael's view of that outlook changed slowly, too. Then again, perhaps he lied then or is lying now. Perhaps he knew she wasn't coming back, or either way he didn't want her to come back -- he just wanted to get through the malpractice trial, collect as much money as possible, and let her go. Perhaps. I don't know. I think people just see here what they want to see.
Let me be clear: I'm not saying I have any idea what was really going on in Michael Schiavo's head. I'm not defending him. I'm reacting to numerous statements being made that "he never mentioned her wishes during that trial so he must have just made it all up after the lawsuit." In my view, people saying that don't understand how litigation works. Whether Terri's wishes came up in that trial has nothing to do with whether Michael's been honest in this case about Terri's wishes.
...posted by Matt Conigliaro Û
You write extremely well. Let me tell you about the "realities of litigation". The person who has the most money and a rabid lawyer...wins. I have unfortunately found out that ethical and lawyer, for the most part, do not belong together in the same sentence. MS, and someone I was married to for 19 years, pick the nastiest representation, they can buy. That type of lawyer wouldn't give a shit if their client lies. All they care about is whether the check is good.
I've had good luck for the most part with doctors. I couldn't imagine a competent physician state your example of Terri's life expectancy to a jury. If I were on that jury, I'd be pissed off, and so would you. OTOH, this is why many people can no longer afford medical insurance. The costs of these verdicts pass down to you and me.
An honest and ethical person would not have sued the doctors, if he/she knew the injured party's wishes. This money was to be used for care and rehab. MS gets the money, and suddenly remembers "her wishes". Legalities aside, do you believe MS to be truthful? I have a low opinion about people who sue in these situations, but this is over the top, imo.
If MS had hired an ethical lawyer who knew that he intended to have his wife killed after being awarded a settlement, would not take the case. I know I wouldn't.
I think the problem is that many people here have been blessed by not having a sociopath in their lives. I cannot say I know how their minds work, because my brain just "doesn't go there". So, I get sandbagged over and over again. At least I'm still breathing.
Once again, thanks for your excellent post.