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Clear and Convincing Evidence

I've been looking around for the laws that might apply in the Terri Schiavo case and I've come up pretty empty. Whether that's by design, or not, I don't know.

This article by Chris Tisch in the St. Petersburg Times does a pretty good job of documenting how "right-to-die" precedents have evolved over the years. It's worth noting that the "law" as it operates in the case of Terri Schiavo has been crafted entirely by the judiciary. Talk about judicial activism! In this case, however, it appears that the courts have imposed the standards for removal of life support because legislatures would not act.

In the only "right-to-die" case ever heard by The U.S. Supreme Court they ruled that families did not have an automatic right to insist that hospital workers stop feeding their relative. The court however indicated that the feeding tube could be removed if they proved by "clear and convincing evidence" that the patient had previously indicated that they would not want such treatment. The court affirmed that an incapacitated person whose wishes were clearly known could have their treatment ended.

Regardless of moralizing about Terri Schiavo, the entire case comes down to the "clear and convincing evidence" standard. Only one judge has ever viewed and ruled on that evidence (Michael Schiavo's disputed contention that he remembered Terri saying she wouldn't want to be kept alive on life support) - Judge George Greer, who ironically is legally blind.

Ann Coulter, on that ruling, notes:

...moreover, it's not as if court after court has heard testimony on Terri's wishes and have all unanimously agreed that Terri would have chosen death. One lone Florida circuit court judge, George Greer, credited Michael's testimony, finding "clear and convincing" evidence that Terri said she would not want to be kept alive on feeding tubes. Because Judge Greer was acting as the finder of fact, his finding is essentially unreviewable by any other court. Even the notorious Florida Supreme Court - which has a history of jumping in to try to save a dead man - refused to review the case.

Judge Greer's finding on Terri's wishes may be immune from legal review, but it's not immune from criticism. He's a finder of fact - he's not God. A few years ago, Judge Greer found that Helene Ball McGee did not have reasonable cause to believe domestic violence was imminent and denied her an order of protection. Two weeks later, Mrs. McGee was stabbed to death by her husband. So judges can make mistakes.

Judge Greer's pivotal "finding of fact" in the Schiavo case determining a life-or-death issue is based on something Terri allegedly said after watching a TV show. Michael didn't know his wife was bulimic, but he distinctly remembered Terri's remarks about a TV show. (It was an episode of "Melrose Place," during which she said that Heather Locklear's shoes were "to die for.")

Given all the acrimony about how and when Michael Schiavo had this "revelation" in the course of the protracted legal battles it certainly seems that a review by a fresh set of judicial eyes on the ALL of the facts surrounding Terri's wishes (or lack thereof) with regards to the "clear and convincing evidence" standard is warranted. From the looks of it, that's what the bill President Bush is expected to sign provides for.

Note: If this doesn't convince you of the worth of a living will, nothing will.


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Comments (53)

I think it there is any les... (Below threshold)
Just Me:

I think it there is any lesson to be learned from this case, it is the neccessity of having a living will/written directive.

The fired guardian ad litem indicated that he didn't think there was clear and convincing evidence that Terri wanted to die, I think that having a new judge review all the evidence and actually consider the merits of the case, not just the legal ins and outs would not be a travesty of justice here.

There is an axiom one learn... (Below threshold)

There is an axiom one learns in law school:

HARD FACTS MAKE BAD LAW

Never truer than in this situation.

Greer's decision had been s... (Below threshold)
Bill:

Greer's decision had been subjected to extensive legal review, including at least 2 appellate panels (3 judges each) and the Florida Supreme Court.

The last appellate panel to review Greer's decision was clear that were they allowed to judge the facts of the case they would come to the same conclusion as the trial judge.
"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/infopage.html

From that link you also see that the trial judge relied on more than just the husband's or parents' testimony - Coulter appears to have deliberately lied about that issue.

Few people realize how the videos online have been edited to misrepresent the entire video:
http://sptimes.com/2003/11/10/Tampabay/Schiavo_tapes__snippe.shtml
http://news.tbo.com/news/MGBQ67CTI6E.html

Kevin:As you put i... (Below threshold)
steve sturm:

Kevin:

As you put it, Greer's finding of fact is 'essentially' unreviewable - yet appelate courts can overturn decisions - whether by jury or judge - where there is insufficient evidence on which to base that decision. While I haven't read every filing that her parents have made over the years, I would be extremely surprised if they didn't make the claim that the judge was wrong, only to have the appeals courts reject that assertion.

The question is: given that this process was handled in accordance with Florida law, and that the federal courts have already had their crack at it, is there any usurpation of the process (making a federal case out of it, continuing to litigate what has been already heard and ruled on, distorting what is happening in favor of media and base-friendly sound bites) that those wishing to keep her alive are unwilling to do?

Bill - thanks for putting u... (Below threshold)
steve sturm:

Bill - thanks for putting up the text from the appeals court decision, as well as for pointing out that Ann Coulter was, ahem, fudging a bit. ... not that it will likely matter to those still fighting.

I do think it is relevant t... (Below threshold)
Just Me:

I do think it is relevant that her first Guardian ad litem indicated in his report that he didn't believe there was clear and convincing evidence she wanted to die. He was dismissed not long after that report and she never had another one.

Bill, You've put the clear... (Below threshold)
GC:

Bill, You've put the clear and convincing evidence to the sites on this post. What most people don't seem to understand or comprehend is that there has been sufficient evidence submitted to prove that the Schiavo case has had plenty of review. The Congress is grandstanding and using this case for political fodder. They should be ashamed.

I would feel a lot more com... (Below threshold)
Palmateer:

I would feel a lot more comfortable about the right of privacy taking precedent over big government if Terri was an elderly person in a coma (which is how the lives of both my mother and of my wife's father ended).

RE: Bill's post (March 20, ... (Below threshold)
AnonymousDrivel:

RE: Bill's post (March 20, 2005 08:08 AM)
Few people realize how the videos online have been edited to misrepresent the entire video...

What! You mean that's even possible? Gasp! Someone tell the media! Come to think of it, I've seen footage that made A. Gore appear like something other than an automaton. You may be on to something. ;)

Kevin,I'm thinking... (Below threshold)
AnonymousDrivel:

Kevin,

I'm thinking you may want to convert your postscripted note into a 36-point headline.

In today's report of Congre... (Below threshold)

In today's report of Congress' action, Tom Delay makes some highly critical comments of the Supreme Court's refuse to take up the matter.

And I thought conservatives were against activist judges.

Bill:Coulter wrote... (Below threshold)
Julie:

Bill:

Coulter wrote that Greer determined that the woman did not want to be kept a live with a brain injury based on what the husband said.

Do you have a direct link to a factual finding in the cases that what Coulter wrote was a lie?

hearsy... (Below threshold)
been there:

hearsy

Interesting, all. The judg... (Below threshold)
Cao:

Interesting, all. The judge has been unusually picky about the "objective" experts that have been allowed to testify in this case, striking down Terri's right to counsel, and illegally acting simultaneousely as both judge and guardian ad litem.

While Michael Schiavo has a conflict of interest as guardian being that he has another relationship that has produced two children, and he stands to gain something after Terri's death, still they he remains her guardian.

Cranford, the doctor that Greer is so impressed with, is one of the most outspoken advocates of the “right to die” movement and of physician-assisted suicide in the U.S. today.

From the NRO piece (Starving for a fair diagnosis)

In published articles, including a 1997 op-ed in the Minneapolis–St. Paul Star Tribune, he has advocated the starvation of Alzheimer’s patients. He has described PVS patients as indistinguishable from other forms of animal life. He has said that PVS patients and others with brain impairment lack personhood and should have no constitutional rights. Perusing the case literature and articles surrounding the “right to die” and PVS, one will see Dr. Cranford’s name surface again and again. In almost every case, he is the one claiming PVS, and advocating the cessation of nutrition and hydration.

Expert witnesses in court are supposed to be unbiased: disinterested in the outcome of the case. Part of the procedure in qualifying expert witnesses is establishing that they are objective and unbiased. But given Dr. Cranford’s history of advocacy in the “right to die” and euthanasia movements, and given his track record of almost always coming down on the side of PVS and removal of nutrition and hydration, one might question his objectivity.

Yet, to my knowledge, the neurologist who specializes in rehabilitating brain damaged patients rather than killing them, Dr. Hammesfahr's findings were not admitted in court. He is a neurologist who specializes in brain damaged patients and stroke victims, and he is actually in the business of rehabilitating people, rather than killing them. I call him much more "objective" than Cranford who is on a murderous agenda of killing the "inconvenient" in our society, and Hammesfahr says she is not PVS and there is hope as there is plenty of healthy brain tissue.

I disagree with the opinion that things have been reviewed. Greer has thrown out evidence that didn't fit the killing agenda. And I'd like to know on what grounds.

(a) supporters of Terri Sch... (Below threshold)
CNB:

(a) supporters of Terri Schiavo's right to continue in her persistent vegetative state are not morons (although one wonders if they put as much concern into the funding of Head Start);
(b) supporters of Terri Schiavo's right to end her persistent vegetative state are not evil; and
(c) citing Ann Coulter as factual support for anything instantly draws into question whatever position for which she is cited. (Conservatives can replace "Ann Coulter" with "Michael Moore".)

If you need proof of Ann Coulter's proclivity for prevarication (or at least reckless disregard of opposing facts) check out http://www.spinsanity.org/columns/20030630.html (you can find a similar dissection of Michael Moore at http://www.spinsanity.org/columns/20031016b.html).

Terri is not in a persisten... (Below threshold)
Cao:

Terri is not in a persistent vegetative state, as the MSM, the lefty euthanasia enthusiasts and Michael Schiavo would have you believe. Dr. Hammesfahr said she's not in a coma, she's not PVS, and the family has over 30 affidavits from other experts that were not admitted in court because it didn't fit the killing agenda.

As reported on worldnetdaily and the Empire Journal, Terry herself said on Friday that she wants to live.

It is my hope that the Congressional investigation will blow this thing wide open.

George Felos is hawking a book he wrote called "Litigation as Spiritual Practice", and was on the board of the hospice Terri is in while at the same time serving as Michael's lawyer. (can you say--conflict of interest?) Felos did eventually step down from his position on the Suncoast board, but it certainly leaves one to wonder.

Not to mention...as the Empire Journal reported, $14.8 million owed to the federal government by the Suncoast Hospice in fraudulent medicaire claims. It seems there are over 100 patients who were admitted to the hospice without the necessary paperwork. What's that, you say? Oh, just little nonessential details like proof that the patients were terminal. I gather that in order to receive medicaire payments at a hospice you're suppose to prove to the government with doctors affidavits or reports that you're going to die within 6 months.

Of course, they weren't able to provide that with Terri, she was disabled, but she wasn't terminal. The only thing that made her terminal was the fact that Judge Greer withdrew her feeding tube. REAL nice.

Getting rid of the "inconvenient" in our society is the trend, I guess.

Oh I forgot. She's not on ... (Below threshold)
Cao:

Oh I forgot. She's not on any life support except the feeding tube. So in essence, the only thing that's keeping her alive is food and water. Just like you and me. Just like thousands of people with, say, Colitis, or Krohn's Disease. Should we kill them as well? How about Alzheimer's patients? Dementia? What's going on here is an attempt to kill the damaged so as not to inconvenience the living.

CNB:IOW, you have ... (Below threshold)
Julie:

CNB:

IOW, you have no evidence to back up Bill's statement that what Coulter said was a lie.

Now, go leave your moonbat droppings, elsewhere.

Courtesy Ascension Health:<... (Below threshold)
AnonymousDrivel:

Courtesy Ascension Health:
The Patient Self-Determination Act (PSDA)
On November 5, 1990, Congress passed this measure as an amendment to the Omnibus Budget Reconciliation Act of 1990. It became effective on December 1, 1991. The PSDA requires many Medicare and Medicaid providers (hospitals, nursing homes, hospice programs, home health agencies, and HMO’s) to give adult individuals, at the time of inpatient admission or enrollment, certain information about their rights under state laws governing advance directives, including: (1) the right to participate in and direct their own health care decisions; (2) the right to accept or refuse medical or surgical treatment; (3) the right to prepare an advance directive; (4) information on the provider’s policies that govern the utilization of these rights. The act also prohibits institutions from discriminating against a patient who does not have an advance directive. The PSDA further requires institutions to document patient information and provide ongoing community education on advance directives.


Courtesy American Cancer Society:
The Patient Self-Determination Act (PSDA)
The Patient Self-Determination Act (PSDA), passed in 1990 and instituted on December 1, 1991, encourages all people to make choices and decisions now about the types and extent of medical care they want to accept or refuse should they become unable to make those decisions due to illness. The PSDA requires all health care agencies (hospitals, long-term care facilities, and home health agencies) receiving Medicare and Medicaid reimbursement to recognize the living will and power of attorney for health care as advance directives. The PSDA does not create new rights for patients but reaffirms the common-law right of self-determination as guaranteed by the Fourteenth Amendment. Under the PSDA, health care agencies must ask you whether you have advance directives and must provide you with educational materials about your rights under state law.


H.R.1332 (Latest Major Action: 3/17/2005 Received in the Senate.)
Protection of Incapacitated Persons Act of 2005
Protection of Incapacitated Persons Act of 2005 - Amends the Federal judicial code to authorize an incapacitated person (person), or the person's next friend, to remove to the U.S. district court, for the district in which it arose or was heard, within 30 days after available State remedies have been exhausted, any claim or cause of action in which the State court authorizes or directs the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the person's life.

Defines: (1) incapacitated person as a born individual presently incapable of making relevant decisions concerning the provision, withholding, or withdrawal of food, fluids or medical treatment under applicable law; and (2) next friend as an individual who has some significant relationship with the real party in interest, including a parent.

Exempts from such removal authority any claim or cause of action in which no party disputes, and the court finds, that the incapacitated person, while having capacity, had executed a written advance directive valid under applicable law that clearly authorized the withholding or withdrawal of food or fluids or medical treatment in the applicable circumstances.

Requires the U.S. district court, in hearing and determining such a claim or cause of action removed under this Act, to consider only whether authorizing or directing the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the person's life constitutes a deprivation of any right, privilege, or immunity secured by the Constitution or laws of the United States.

Declares that: (1) the court shall determine any such claim or cause of action de novo; and (2) no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply.

The Senate Bill (S.653) states essentially the same thing.


So what does this mean? Congress (in 1990) passed law that forced institutions to present to patients/families guidelines on advance directives based on state law. Now a paradigm shift is in order. If you do not have "a written advance directive valid under applicable law that clearly authorized the withholding or withdrawal of food or fluids or medical treatment in the applicable circumstances", a Federal court may intervene on behalf of a "next friend" even after the "State remedies have been exhausted" and reevaluate de novo.

If this is allowed, then we have just opened for ourselves a nice little Pandora's box which threatens our "common-law right of self-determination" unless we act on our own and have iron-clad documentation with our "friends". Sorry folks... an oath taken with your spouse, son, daughter, father, mother, friend, or favorite designee won't cut it any more. You better draw up papers, see your lawyer, dot the i's, cross the t's, and hope the goalpost doesn't move. Hi Uncle Sam, welcome to my home. Please have a seat on this comfy throne and tell me what to do with my life.

The sky is falling! The sky... (Below threshold)
Julie:

The sky is falling! The sky is falling!

But anonymous D-in most cas... (Below threshold)
Just Me:

But anonymous D-in most cases this isn't an issue, but there is a dispute over whether she wanted to die. The man who wants to kill has moved on with his life, he was already living with his new woman, when he decided Terri needed to die, and there was 700k in the bank. He was also the only witness to her comments.

Her original guardian ad litem (the real one not the judge) said there was not enough proof to equal clear and convincing evidence she wanted to die. The judge chose not to consider this evidence, which makes me wonder even more just what kind of agenda the judge himself has.

There isn't any proof that she wanted this, and there are two sides disputing the fact that she wanted to die. He has moved on, her parents want to take care of her, he should just back out, and marry his new woman, and let it go. Terri will die eventually there is no moral reason to hasten the act.

Where I live it doesnt matt... (Below threshold)
Jon:

Where I live it doesnt matter what your next of kin says. If you dont have a living will filed in writing, witholding treatment or sustenance capable of life brings the charge of murder.

2 things that really disturb me over this case:

1. Michael Schiavo never said anything about 'his wife wouldnt want to live this way' until 7 years after her incident occured. For the first 7 years he pursued active treatment. Why would he pursue treatment for a full 7 years then all of a sudden decide she wants to die?

2. No judge ruling on this case has gone to physically visit with this woman.

The precedent this sets that the left doesnt want to tell you, is that it is the first step in removing from our society those deemed 'undesirable'. Today its a feeding tube, but everyone on the left agrees starvation is a terrible way to go. The next step will be to just pump their vein full of poison rather than starvation, and allows those with a moral responsibility for someone elses care a way to get out of that obligation.

BILL: "Coulter appears t... (Below threshold)

BILL: "Coulter appears to have deliberately lied about that issue."

That's no surprise. In fact, it's SOP for her.

BILL gave an excellent reso... (Below threshold)

BILL gave an excellent resource for this case:

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

CAO:"Greer has thrown ou... (Below threshold)

CAO:"Greer has thrown out evidence that didn't fit the killing agenda. And I'd like to know on what grounds."

The agenda is to comply with Terri's wishes now that it is clear that she will not recover. There were 5 neurologists called in for one hearing, 2 of them were suggested by the Schindlers. All 5 agreed that Terri had massive brain damage.

CAO: "As reported on wor... (Below threshold)

CAO: "As reported on worldnetdaily and the Empire Journal, Terry herself said on Friday that she wants to live."

This is a sad commentary on the state of public discourse in America. Terri cannot speak because she has no cerebral cortex.

JUST ME:"there was 700k ... (Below threshold)

JUST ME:"there was 700k in the bank. He was also the only witness to her comments. "

1) There is less than 50K remaining from the malpractice settlement in 1993.

2) The are two other witnesses

"Coulter appears to have... (Below threshold)
Julie:

"Coulter appears to have deliberately lied about that issue." That's no surprise. In fact, it's SOP for her.

Where's your proof?

BILL gave an excellent resource for this case:

No, Bill gave a link to a website with numerous, I don't want to count, links. He did not provide any direct link to any court case that contradicted what Coulter wrote.

Bill, like you, attributed to Coulter something she didn't write and then said it was a lie. SOP of moonbats.

Jon I agree very much with ... (Below threshold)
Just Me:

Jon I agree very much with your post. There is an agende for the right to die people, and it will eventually come calling on the cognitive but disabled and inconvienient people.

"All 5 agreed that Terri had massive brain damage."

Um there is a huge difference between brain damage and PVS. I hope you aren't advocating that somebody who is simply brain damaged be starved to death, on nothing more than the word of a man who stood to gain almost a million dollars and was already living with another woman and admitted to dating several others to that point.

Or are you one of those people I was refering to in my post to Jon, that is waiting for the day when we can just kill somebody because they are disabled and inconvienient?

Steve J.

"1) There is less than 50K remaining from the malpractice settlement in 1993."

But when Michael first wanted her tube removed, there was over 700k in the bank. Had he had his way then, he would have collected that. Also, he was already living with the woman he would later father children with. He had also already been dating. There is only 50k in the bank, because almost half of it has paid for the attorney fees.

"2) The are two other witnesses "

Nope, when he first wanted the tube removed, and the first guardian ad litem wrote in his report that he didn't feel there was clear and convincing evidence to remove the tube, because the only witness was Michael to her wishes, and he had a conflict (the 700k in the bank and the live in girl friend that he told the GAL he intended to marry once Terri was dead). The GAL also referenced the conflict of the money issue in regards to Terri's parents, but felt like the conflict for Michael was stronger.

It was only after this report was submitted that Michael's sister and brother (or brother in law can't remember which) came forward.

I find the whole thing suspect and agree with the original GAL there wasn't enough clear and convincing evidence to determine that death is what Terri would have wanted.

But the facts are that if Terri had been killed when Michael first wanted her dead, he would have had about 700k to put in the bank to start his new life off with his new wife.

No cerebral cortex? Where ... (Below threshold)
Cao:

No cerebral cortex? Where did you that?

Hammasfahr is a neurologist who specializes in brain damaged patients and stroke victims and is about rehabilitation, not about the killing agenda like Dr. Cranford. He said her injury is consistent with a victim of strangulation. Sure puts Michael's story in a dubious light.

Dr. Hammesfahr is the first physician to treat patients successfully to restore deficits caused by stroke. His technique is approved by Medicare, and he was nominated in 1999 for a Nobel prize for this work which he started in 1994.

Dr. Hammesfahr has great success. Most doctors think a brain injury that has been there awhile is not treatable. And I suppose that's where you get this houseplant rhetoric. He has had success with these cases and he is convinced Terri would improve. (Improvement should not be required for Terri to be allowed to live).

He said there is plenty of brain tissue and that she should have therapy.

She has had absolutely no therapy since 1995.

The video entitled, "Asked to open her eyes" allows you to see and hear the examination. When she opened her eyes on command, the doctor said, There you go, good. Good! (Laughing) Good job! Good job, young lady, good job!

Dr. Hammesfahr said the doctor who complimented Terri for following the balloon later testified in court that she was in a persistent vegetative state. Dr. Hammesfahr stated this is medical malpractice and attempted murder.

How many witnesses testifie... (Below threshold)
Julie:

How many witnesses testified is different than a case opinion where Greer states I relied on the testimony of X to form the basis of my decision that Schiavo did not want to live.

There is a legitimate basis for the argument that the husband had a direct conflict of evidence and should not have been relied on by Greer. How come you people who want her to starve to death never address those conflicts of interest???

Make that conflict of inter... (Below threshold)
Julie:

Make that conflict of interest, not evidence.

Julie:Ann Coulter ... (Below threshold)
CNB:

Julie:

Ann Coulter (at http://www.yaf.org/speakers/op-ed/coulter_schiavo.html) said that the decision was unreviewable because Judge Greer was the finder of fact. However, in January 2001, the Florida Court of Appeals, Second District (http://abstractappeal.com/schiavo/2dcaorder01-01.txt), reviewed Judge Greer's ruling (contrary to Ms. Coulter's assertion) and found that "[a]fter due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did." A more detailed outline of the timeline of this matter may be found at http://abstractappeal.com/schiavo/infopage.html#timeline.

All I did was follow a link provided by Bill --seemed pretty easy. Not sure why you keep asking folks to provide links proving Ms. Coulter's statement (the one included in the link in the original post) to be inaccurate, when Bill did that right away.

Having said that, none of this means that you have to agree with Judge Greer's holding. However, that is a separate issue than the one you keep bringing up (that no one can show that Ms. Coulter's statement was wrong).

Best regards,

CNB

Well, Coulter is not lying ... (Below threshold)
mantis:

Well, Coulter is not lying exactly, but she clearly distorts the evidence for her column. From Greer's original decision:

Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want to live like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that “if I ever go like that just let me go. Don’t leave me there. I don’t want to be kept alive on a machine.” and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that ever happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo’s oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.

Coulter writes as if the only evidence of Terri's intentions presented in court was an offhand comment after a television show, and therefore shouldn't be taken very seriously. The court documents show otherwise.

Julie -- When I read Coulte... (Below threshold)

Julie -- When I read Coulter's comments about Greer's findings of fact being "essentially unreviewable," I took it to be her (correct) assessment of the standard of review Greer's finds would undergo when the appellate court reviewed the record on appeal. The standard is typically quite deferential, and a trial judge's findings are rarely overturned. I don't believe Coulter lied --- I think she was exhibiting her usual penchant for hyperbole.

Kevin wrote:I've ... (Below threshold)
Brian:

Kevin wrote:
I've been looking around for the laws that might apply in the Terri Schiavo case and I've come up pretty empty.

Well, here's one. Governor Bush of Texas signed a law allowing a hospital to cut off life support for a patient's inability to pay for medical care combined with a prognosis that renders further care futile. It also allows doctors to remove patients from life support if the hospital's ethics committee agrees.

So it seems that when money for the hospital or HMO is involved, Bush is all too happy to abandon his "culture of life".

CNB wrote:Julie: ... (Below threshold)
Brian:

CNB wrote:
Julie: All I did was follow a link provided by Bill --seemed pretty easy. Not sure why you keep asking folks to provide links

CNB, don't bother. That is Julie's standard way to deny facts. You post facts, she says "where's your proof?" You provide proof, she denies it's proof. You provide more proof, and she mocks you ("The sky is falling! The sky is falling!").

She's done this on several other threads. Don't waste your time with her. There are more than enough other people here who are willing to engage in honest debate about the facts.

RE: Julie's post (March 20,... (Below threshold)
AnonymousDrivel:

RE: Julie's post (March 20, 2005 12:20 PM)
The sky is falling! The sky is falling!

LOL. What insight from Attorney Little. Care to elaborate on the legislation on the floor and its potential implications beyond the Schiavo case or its impact on The Patient Self-Determination Act?

Class is in session and pens at the ready...

RE: Brian's post (March 20,... (Below threshold)
AnonymousDrivel:

RE: Brian's post (March 20, 2005 02:23 PM)
...she mocks you ("The sky is falling! The sky is falling!").

Mocking? I guess I should feel offended. I figured she was politely conceding defeat. I need to readjust my sarcasmeter.

Your link looks interesting. I'll probably do a search to see which State legislators sponsored and passed that Texas legislation and see if any of them are now Federal reps voting "yea" for the incomplete Schiavo Law.

Yes, this is a difficult is... (Below threshold)

Yes, this is a difficult issue, however our legal system is in place for a reason! The government is overstepping here.

Read more at

http://randomtruth.blogspot.com/

Now was that really so hard... (Below threshold)
Julie:

Now was that really so hard, boys? Obviously it was, since it took so long. And it appears all but one of you had difficulty understanding a rather simple request.

Smartass ( CNB & Brian):

As I had posted earlier, linking to a page with approx. 32, plus, links to documents is meaningless.

And, Brian: Boo hoo hoo! Are you denying that you intentionally omitted the link you were citing to?

Now, I have a busy day ahead of me, so you can all commiserate how mean I am to you.

p.s.: I also have to read what mantis linked to because I know he wouldn't want me to let him get away with anything. :-)

AD: Why? You're the one ru... (Below threshold)
Julie:

AD: Why? You're the one running around yelling “pandora's box” oh no! Comfy throne, oh no! You prove it.

Note, everyone else has ignored your dire prediction. Oh no!

Brian -- you were right. <... (Below threshold)
CNB:

Brian -- you were right.

Back to work for me (life as a lawyer does not end, unless you are Ann Coulter).

Posted by: Julie post (Marc... (Below threshold)
AnonymousDrivel:

Posted by: Julie post (March 20, 2005 03:01 PM)

AD: Why? You're the one running around yelling “pandora's box” oh no! Comfy throne, oh no! You prove it.

I just figured since you were the legal/medical expert that you might want to challenge my interpretation of Congress' enactment of PDSA and the legislation on the floor re advanced directive and its soon-to-be inadequately debated insertion into private lives. I concluded with some hyperbole for color but that doesn't discount valid concerns. If my interpretation is wrong, how about supplying something a tad more substantive and less reflexive than the rantings of a chicken? You should be able to school me here since this is not my area of expertise. How about it professor?


Note, everyone else has ignored your dire prediction. Oh no!

So for a point to be valid or to have evidence that it tweaked neurons, it must have a public response? There's no chance that an opinion without retort has merit and consideration from others? Interesting standard you have assumed. I guess that I should ignore emails submitted to me privately (from some that are a bit reticent to post on a public forum) agreeing with some of my positions too.

Now, rather than trying to draw "everyone else" into your defense, please provide useful references, links, or commentary as your rebuke. Posters and lurkers alike might appreciate the effort.

Just a couple notes.<... (Below threshold)

Just a couple notes.

The courts who ruled on Judge Greer's decision did not rule on his finding of fact. They ruled on the legality of his issues given the finding of fact that he made.

There is serious issue about whether Judge Greer's finding of fact was a fully informed decision. There is evidence to believe that his decision was not fully-informed.

First, the doctors who examined Terri spent about 15 hours total with her. Other physicians who have worked with PVS patients (including several who made an extensive study of 40 such patients in London) spent a total of one hour a day with each of their patients for six weeks. The physicians in Greer's case spent not even half that time. The key to an accurate diagnosis of PVS is a careful, time-intensive examination. That has not been done at any point.

Second, her "wish to die" has been expressed only in second-hand testimony to one person who, as has been already pointed out, would stand to gain greatly from her death. The other two "witnesses" only witnessed Michael's telling them what he said Terri told him. They are secondhand witnesses whose testimony would have been thrown out in other cases.

Judge Greer did not seem to have adequately allowed for a careful examination of Terri and gave a lot of credence to the word of a man whose interest in this case stands against Terri's.

Unfortunately, higher courts are very loathe to overturn findings of fact and the Florida courts held to that judicial tradition when reviewing this case. They basically found that, given what Judge Greer asserted was true, he made no legal mistakes. That's a far cry from saying that his factual finding was correct.

A re-hearing of that finding of fact is what Terri's family wants here and it's exactly what I think they ought to have.

Brian,I believe th... (Below threshold)
AnonymousDrivel:

Brian,

I believe this to be the pertinent legislation. It's quite a long document since it is a merger of several acts, so some careful review is in order. Yes, GWBush signed this bill with the Hospice exclusion. More review is necessary to determine its similarity to what is now at the Federal level.

ADVANCE DIRECTIVES ACT OF 1999
Author: Moncrief
Sponsor: Coleman
Last Action: 06/18/1999 E Effective on 9/1/99
Relating to certain advance directives for medical treatment;providing administrative penalties.

...

12-4 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
12-5 written directive may be in the following form:
12-6 DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES

...

13-8 DIRECTIVE
13-9 I, ______________, recognize that the best health care is
13-10 based upon a partnership of trust and communication with my
13-11 physician. My physician and I will make health care decisions
13-12 together as long as I am of sound mind and able to make my wishes
13-13 known. If there comes a time that I am unable to make medical
13-14 decisions about myself because of illness or injury, I direct that
13-15 the following treatment preferences be honored:
13-16 If, in the judgment of my physician, I am suffering with a
13-17 terminal condition from which I am expected to die within six
13-18 months, even with available life-sustaining treatment provided in
13-19 accordance with prevailing standards of medical care:
13-20 ____ I request that all treatments other than those needed to keep
13-21 me comfortable be discontinued or withheld and my physician
13-22 allow me to die as gently as possible; OR
13-23 ____ I request that I be kept alive in this terminal condition
13-24 using available life-sustaining treatment. (THIS SELECTION
13-25 DOES NOT APPLY TO HOSPICE CARE.)
13-26 If, in the judgment of my physician, I am suffering with an
14-1 irreversible condition so that I cannot care for myself or make
14-2 decisions for myself and am expected to die without life-sustaining
14-3 treatment provided in accordance with prevailing standards of care:
14-4 ____ I request that all treatments other than those needed to keep
14-5 me comfortable be discontinued or withheld and my physician
14-6 allow me to die as gently as possible; OR
14-7 ____ I request that I be kept alive in this irreversible condition
14-8 using available life-sustaining treatment. (THIS SELECTION
14-9 DOES NOT APPLY TO HOSPICE CARE.)
14-10 Additional requests: (After discussion with your physician,
14-11 you may wish to consider listing particular treatments in this
14-12 space that you do or do not want in specific circumstances, such as
14-13 artificial nutrition and fluids, intravenous antibiotics, etc. Be
14-14 sure to state whether you do or do not want the particular
14-15 treatment.)
14-16 ___________________________________________________________________
14-17 ___________________________________________________________________
14-18 ___________________________________________________________________
14-19 After signing this directive, if my representative or I elect
14-20 hospice care, I understand and agree that only those treatments
14-21 needed to keep me comfortable would be provided and I would not be
14-22 given available life-sustaining treatments.
14-23 If I do not have a Medical Power of Attorney, and I am unable
14-24 to make my wishes known, I designate the following person(s) to
14-25 make treatment decisions with my physician compatible with my
14-26 personal values:
15-1 1._____________________
15-2 2._____________________
15-3 (If a Medical Power of Attorney has been executed, then an agent
15-4 already has been named and you should not list additional names in
15-5 this document.)
15-6 If the above persons are not available, or if I have not
15-7 designated a spokesperson, I understand that a spokesperson will be
15-8 chosen for me following standards specified in the laws of Texas.
15-9 If, in the judgment of my physician, my death is imminent within
15-10 minutes to hours, even with the use of all available medical
15-11 treatment provided within the prevailing standard of care, I
15-12 acknowledge that all treatments may be withheld or removed except
15-13 those needed to maintain my comfort. I understand that under Texas
15-14 law this directive has no effect if I have been diagnosed as
15-15 pregnant. This directive will remain in effect until I revoke it.
15-16 No other person may do so.
15-17 ...

"I don’t want to be kept al... (Below threshold)
Sue Dohnim:

"I don’t want to be kept alive on a machine.”

"she wanted it stated in her will that she would want the tubes and everything taken out"

So where are cups of water and spoons of food mentioned here? These have been forbidden to Terri as well. Justify that.

Tell me how cups and spoons are artificial life support. Show me where Terri said it was okay for Michael's grandmother or Karen Ann Quinlan to be denied food and water.

I'll also bet you fools who keep howling for her death don't have any willingness to die like she will. If you have living wills, I'll bet you've put in provisions to keep yourself fed and hydrated. You'd be big damned hypocrites if that was the case, too.

Brian -- you were right.... (Below threshold)
Julie:

Brian -- you were right.

What's next? You guys going to give each other backrubs?

AD: Try proving your interpretation is right. Lack of response indicates at the minimum lack of interest and/or belief in your weird doom and gloom predictions.

Terri didn't want to be a b... (Below threshold)
Just Me:

Terri didn't want to be a burden, seems to me that her parents don't think she is a burden and want to take care of her.

Also, back to the fact that terri didn't have adequate representation for her interests. I think it is pretty clear that Michael had some competing interests at work here (he absolutely would stand to get 700k and he could marry his new girlfriend, once Terri was dead). I think at the very least the judge should have continued to have somebody representing her interests, and perhaps he maybe should have actually considered the only GAL's recomendations in this, which was that he didn't see clear and convining evidence that Terri wanted to die.

Just Me,Apparently... (Below threshold)
mantis:

Just Me,

Apparently there have been a total of three GAL's appointed to Terri's case, John H. Pecarek in 1994, Richard Pearse Esq., in 1998, an Jay Wolfson in 2003. All three found that Terri is PVS, but differ on who should make the decisions for her, I guess. See here

Mantis I have read the repo... (Below threshold)
Just Me:

Mantis I have read the reports from the last two, I hadn't been aware of the first one. Just read your link, apparantly the first one was before Michael decided he needed to kill her.

The second one submitted a report where he didn't think there was clear and convincing evidence to kill her. I agree with him. Greer obviously didn't, but then I think Greer has his own agenda which is to see Terri dead just as much as Michael does.

Oh, and I guess it would be... (Below threshold)
Just Me:

Oh, and I guess it would be germaine to say that the third felt like swallowing tests should be repeated and that she have a permanent guardian ad litem appointed, neither of which happened.

Well, I have to disagree on... (Below threshold)

Well, I have to disagree on one point with Kevin.

Let's say someone does have a clear and convincing stated wish to die (what proportion of proof is that anyway? It's not even beyond a reasonable doubt that we use to sentence people to jail), why do we need to honor that wish?

Since when are we compelled as a society to put someone down? If there is not a written statement that is known to the person, can we assume that they at any time have the same wish that we were so clear about earlier?

There is no mechanism that provides us with a clear and convincing standard other than the present statements of the person themself (while not under duress or under the influence of drugs). Then, if they are able to be that rational, we ought not to kill them if we respect human life.

Either way, euthanasia is folly.

We "respect" living wills not because they tell us what the wishes of the person are at the point in time when we kill them, but because they have in effect put a contract out on themselves. We enforce the living will because we must have some mechanism of responsibility available to the individual in order that we as a society can allocate health care. It is a voluntary utiliarian device. That is all.




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