|
|
|
|
Don't find yourself second guessing your loved ones wishes or trying to make decisions like this poor family has literally dividing a country over whether or not to keep them alive.
Definition of a Living will
A Living Will, also called Will to Live, Advance Health Directive, or Advance Health Care Directive, is a specific type of power of attorney or health care proxy or advance directive. It is a legal instrument that usually is witnessed or notarized. These documents state:
- That the principal is appointing an individual to direct their health care decisions should the principal be unable to do so (e.g. called "Power of Attorney for Health Care"), or
- Specific directives as to the course of treatment that is to be taken by caregivers, or, in particular, in some cases forbidding treatment and sometimes also food and water, should the principal be unable to give informed consent ("Individual Health Care Instruction") due incapacity.
As the name suggests, the Will to Live tends to emphasize the wish to live as long as possible rather than refusing treatment in the case of serious conditions.
In the Netherlands, patients and potential patients can specify the circumstances under which they would want euthanasia for themselves. They do this by providing a written Euthanasia Directive. This helps establish the previously expressed wish of the patient even if the patient is no longer able to communicate. However, it is only one of the factors that is taken into account.
Terri Schiavo
Theresa Marie Schiavo (born December 3, 1963), commonly known as Terri Schiavo, is a severely brain-damaged American woman from St. Petersburg, Florida, whose husband's efforts to remove her feeding tube have prompted a fierce debate over bioethics, euthanasia, legal guardianship, federalism, and civil rights. On March 18, 2005, her feeding tube was removed for the third time.
Michael Schiavo is Mrs. Schiavo's husband and legal guardian. He contends that he is carrying out his wife's wishes to not be kept alive in her current state. Mrs. Schiavo's parents, Bob and Mary Schindler, and her siblings, dispute Mr. Schiavo's position, saying that Mrs. Schiavo is "responsive" and in no discomfort, and that she would not wish to die.
The courts that have heard this case have all sided with Mr. Schiavo thus far, but her parents have vigorously appealed the courts' decisions and sought to prevent the cessation of life support. The Roman Catholic Church, U.S. President George W. Bush, Florida Governor Jeb Bush, and many Republicans in the Florida Legislature and U.S. Congress have sided with Mrs. Schiavo's parents. Other organizations and people, such as the American Civil Liberties Union and many Democratic legislators, have sided with her husband and guardian.
Early life
Schiavo was born Theresa Marie Schindler on December 3, 1963, near Philadelphia. She is the oldest of three children. As a teenager, growing up in a Philadelphia suburb, she was overweight but managed to significantly reduce her weight with the help of a physician. She met Michael Schiavo at a community college in Bucks County, Pennsylvania in 1982 and married him in November 1984. The couple moved to St. Petersburg, Florida, in April 1986, shortly after Terri Schiavo's parents had moved there
Cause
On the morning of February 25, 1990, at around 5:30 a.m., Schiavo collapsed in her home in St. Petersburg, resulting in irreversible brain damage from a lack of oxygen. According to her discharge summary from Humana Hospital [1] (http://www.terrisfight.org/documents/Humana%20Discharge%20Summary%20050990.pdf), Schiavo suffered cardiac arrest and anoxic brain damage, accompanied by hypokalemia (an abnormally low blood level of potassium), seizures, respiratory failure, and an injured knee from the fall. The cause of her cardiac arrest was undetermined, but the low potassium was suspected.
At a medical malpractice trial in 1992, a jury concluded that Schiavo suffered from bulimia, which caused her chemical imbalance and subsequent cardiac arrest. Florida's Second District Court upheld the finding that Schiavo suffered a cardiac arrest as a result of a potassium imbalance.
Michael Schiavo first sought permission to remove his wife's feeding tube in November 1998. Her feeding tube was removed first on April 26, 2001, but was reinstated two days later on an appeal by her parents.
Since then, questions about the cause of Schiavo's collapse have been raised by Schiavo's family, and by Dr. Hammesfahr, a neurologist they hired to examine her in 2002.
A bone scan (http://www.zimp.org/stuff/bone.jpg) [2] (http://www.hospicepatients.org/dr-walker-t-schiavo-bone-scan-deposition.txt) done one year after her injury showed (according to the radiologist who evaluated it) that she had also suffered previous traumatic injuries to multiple ribs (on both sides), to both sacroiliac joints, to both knees, to both ankles, to several thoracic vertebrae, and to her right thigh, plus a minor compression fracture of the L1 vertebra. Mrs. Schiavo's family did not know of the existence of this scan until November, 2002. Forensic pathologist Dr. Michael Baden, has suggested that physical trauma, specifically a head injury, might have caused Mrs. Schiavo's condition,[3] (http://www.cnsnews.com/ViewCulture.asp?Page=\Culture\archive\200310\CUL20031028a.html) though in a later interview[4] (http://www.foxnews.com/story/0,2933,148756,00.html) he agreed the bulimia/hypokalemia explanation was possible. The trauma is also, however, said to be consistent with her cardiac arrest, fall, CPR attempts and eventual resuscitation.
Upon becoming aware of the bone scan report possibly suggesting abuse-related injuries, the Schindlers petitioned Judge Greer for a full evidentiary hearing to evaluate the new evidence. On November 22, 2002 Judge Greer denied the motion, stating that the issue of trauma 12 years earlier was irrelevant to the current case[5] (http://abstractappeal.com/schiavo/trialctorder11-02-scan.pdf).
The Florida Department of Children and Families (DCF) has begun another investigation of the abuse allegations. Previous investigations have found Schiavo innocent, and the charges baseless. ([6] (http://www.miami.edu/ethics2/schiavo/wolfson%27s%20report.pdf) PDF Report) The doctors who were the defendants in the 1992 malpractice lawsuit made no attempt to introduce any evidence suggesting that Mrs. Schiavo was battered as part of an affirmative defense to mitigate their responsibility for her cardiac arrest.
Schiavo is now hospitalized at a hospice in Pinellas Park, in the Tampa Bay Area.
Schiavo's condition
Mrs. Schiavo's condition and prognosis are matters of dispute. The Schiavos' personal physicians, and all other doctors unconnected to either party, have since 1991 contended that she is in a persistent vegetative state. Patients in a persistent vegetative state (PVS) have severe brain damage and are in a state of "wakefulness without awareness." In many cases, including that of Schiavo's, a coma progressed to the vegetative state. Patients in a persistent vegetative state are usually considered to be unconscious and unaware. They may experience sleep-wake cycles, or be in a state of chronic wakefulness. They may exhibit some behaviors that can be construed as arising from partial consciousness, such as grinding their teeth, swallowing, smiling, shedding tears, grunting, moaning, or screaming without any apparent external stimulus. They are unresponsive to external stimuli, except, possibly, painful stimuli.
Mrs. Schiavo's parents claim that their daughter does not meet that definition. The only facts which appear not to be in dispute are that she is not in a coma, she is severely brain damaged, and she is partially blind. Since her collapse, she has been fed through a gastric feeding tube. This is the life support mechanism around which the case revolves. Her parents and others argue that this single tube does not meet the definition of life support in a traditional sense, which usually includes circulatory and respiratory system support. Whether she could, instead, be spoon-fed is disputed.
Most of Schiavo's cerebral cortex has been completely destroyed, replaced by spinal fluid; Dr. Ron Cranford, a neurologist at the University of Minnesota assessed Schiavo's brain function in 2001 as part of a court-ordered assessment. He was quoted in Florida Today as saying "[Schiavo] has no electrical activity in her cerebral cortex on an EEG (electroencephalogram), and a CT (computerized tomography) scan showed massive atrophy in that region." [7] (http://abstractappeal.com/schiavo/infopage.html) [8] (http://www.floridatoday.com/apps/pbcs.dll/article?AID=/20050318/NEWS01/503180350/1006)
Her parents claim that she smiles, laughs, cries, moves, and makes child-like attempts at speech, that she attempts to say "Mom" or "Dad" or "yeah" when they ask her a question. They claim that when they kiss her, she looks at them and sometimes "puckers up" her lips. They cite the testimony and affidavits of 33 physicians and therapists (including 15 neurologists), who, after reviewing video segments provided by her parents, believe that Mrs. Schiavo should receive further tests and/or would likely respond to therapy. However, only two of these physicians had access to her full medical history and examined her in person. Some of these physicians have claimed that there is a "strong likelihood that Mrs. Schiavo is in a 'minimally conscious state.'" There were six video segments provided by Schiavo's parents, totaling four minutes and twenty seconds in length (edited down from four and a half hours of videotape). The video selected for these segments represents moments where Schiavo's behavior seemed to be appropriate to what was going on around her.
Mr. Schiavo, and the doctors he has chosen to care for and evaluate her, such as Dr. Ronald Cranford, contend that she is indeed in a persistent vegetative state, that her occasional apparent responses are actually reflex or random behavior common to PVS patients, and that therapy would be fruitless. Accordingly, Schiavo halted all therapy for his wife in late 1992.
In 2002, a trial was held to determine whether or not any new therapy treatments would help Schiavo restore any cognitive function. A new computed axial tomography scan (CAT scan) was done, as was an electroencephalogram (EEG).
Five doctors were selected: two by Schiavo's parents, two by Michael Schiavo, and one by the court. These five doctors examined Terri Schiavo's medical records, brain scans, the videos, and Mrs. Schiavo herself. The physicians were divided in their conclusions. The two doctors selected by Schiavo's parents supported their conclusion; the two doctors selected by Schiavo's husband and the doctor appointed by the court supported Mr. Schiavo's position. Greer ruled with the latter that Mrs. Schiavo was in a PVS and was beyond hope of significant improvement. [9] (http://abstractappeal.com/schiavo/trialctorder11-02.txt)
Florida's Second District Court of Appeal reviewed all the evidence and upheld the trial court's decision, saying had they heard the case themselves they would have ruled the same as Greer. Some physicians, such as Dr. Peter Morin and Dr. Thomas Zabiega, both neurologists, say that no such diagnosis can reliably be made without more sophisticated tests such as an MRI or PET scan.[10] (http://www.nationalreview.com/script/printpage.asp?ref=/comment/johansen200503160848.asp) Judge Greer reviewed a six-hour tape of Schiavo and concluded that her vegetative condition was factual and not subject to legal dispute (see link 5, above).
Mrs. Schiavo could be evaluated with a PET scan in her current condition. However, an MRI cannot be done without first surgically removing experimental electrodes which were implanted within her brain in 1992, something that Mr. Schiavo has chosen not to do. [11] (http://www.nationalreview.com/script/printpage.asp?ref=/comment/johansen200503160848.asp)
Guardianship
Under Florida law, Mr. Schiavo is Mrs. Schiavo's legal guardian, although her family is seeking his removal as guardian ostensibly so that they can assume responsibility for Mrs. Schiavo's care. To date, Mr. Schiavo has successfully fought those efforts in court.
In an appearance on ABC's Nightline on March 15, 2005, he cited Mrs. Schiavo's parents' expressed willingness to keep her alive by any means necessary, including quadruple amputation, as a key reason for denying transfer of guardianship to the Schindlers.[12] (http://abcnews.go.com/Nightline/story?id=584124&page=1) [13] (http://www.miami.com/mld/miamiherald/news/columnists/fred_grimm/7426730.htm)
Controversy
The fundamental differences on both sides of the issue are focused mainly upon the disputed medical evidence presented by each side. Even though the courts have consistently ruled that, as her husband and legal guardian, Mr. Schiavo has the legal right to decide her medical treatment, her family members have nonetheless used every legal measure available to them to prevent the disconnection of her feeding tube.
Raising the issue of a possible conflict of interest is the fact that Mr. Schiavo stands to inherit the remainder of Mrs. Schiavo's malpractice settlement upon her death. Mr. Schiavo has publicly responded to this charge by claiming that, of the original $1,050,000 awarded in the malpractice suit, less than $50,000 is left, the rest having been spent under a judge's supervision on medical care for Mrs. Schiavo and the ongoing legal battle. He has also stated that, if he does receive this money, he will donate it to charity.
Mrs. Schiavo's family has been battling her husband over her fate since 1993. Although she never wrote a living will expressing a wish to refuse nutrition or medical treatment if disabled, Mr. Schiavo claims that he recalls conversations they had had which make him sure she would not want to continue living in such a state, and two of his relatives have supported that claim.[14] (http://www.discovery.org/scripts/viewDB/index.php?command=view&id=1614)
However, her family disputes his recollections, claiming that Mrs. Schiavo is a devout Roman Catholic who would not wish to violate the Church's teachings on euthanasia by intentionally starving or dehydrating herself to death, and that she apparently never expressed such a desire to anyone in her own family or circle of friends. It was only after the courts awarded more than $1 million in legal settlements (mostly to cover the cost of her long term care and rehabilitation) that Mr. Schiavo first publicly recalled conversations in which his wife had expressed a wish to die rather than live in the condition in which she now finds herself.[15] (http://www.hospicepatients.org/richard-pearse-jr-12-29-98-report-of-guardianadlitem-re-terri-schiavo.pdf) Her family also cites an affidavit by a woman with whom he had a relationship prior to those legal settlements, indicating that Mr. Schiavo told her repeatedly that he did not know what Mrs. Schiavo's wishes would be for her care [16] (http://www.zimp.org/stuff/AffidavitTCapone050901.pdf).
Mrs. Schiavo's father, Robert Schindler, has stated that Florida Judge George W. Greer, who has pronounced the most recent decisions in the case, and who also appointed himself Mrs. Schiavo's guardian ad litem (which Mrs. Schiavo's family says was illegal), has never called her into the courtroom or visited her to observe her condition first-hand. Schindler feels that if his daughter dies in accordance with the court order, that it will be an instance of "judicial homicide".
Mr. Schiavo says that Mrs. Schiavo would not have wanted to live "as a vegetable," and that he is fighting for her "right to die." As the legal guardian of Mrs. Schiavo, he has placed limits on the time her family is allowed to visit her and placed Mrs. Schiavo in a hospice.
Politically this has roughly divided along traditional political lines. Publications such as the National Review, Weekly Standard, and Wall Street Journal have vocally supported the Schindlers' position to keep the feeding tube in place. The New York Times has supported the rights of Michael Schiavo to determine what is best for Mrs. Schiavo. Peggy Noonan has predicted that the Republicans will face fallout from their own base if they fail in keeping Schiavo alive, mainly because the controversy is much more important to social conservatives. [17] (http://www.opinionjournal.com/columnists/pnoonan/?id=110006442)
Republicans House Representative Tom DeLay of Texas and Senator Bill Frist of Tennessee have spoken in favor of keeping Mrs. Schiavo alive, as has President George W. Bush. Democratic Senators Tom Harkin and Kent Conrad has also supported federal intervention in the Schiavo case. Democratic House Representative Henry A. Waxman has been very vocal in protesting Federal legislative efforts to intervene.
As the drama of the events have unfolded, the media storm regarding the controversy has increased. Conservative radio hosts, such as Michael Medved, Rush Limbaugh, and many others have been increasingly commenting on these matters, as have religious commentators such as Rabbi Daniel Lapin, The 700 Club, and other more conservative religious groups. Pro-life celebrities, such as Mel Gibson and Patricia Heaton have been also speaking out on it. [18] (http://www.feministsforlife.org/news/PHSchiavo3-18.htm) Liberal commentators such as Harvard law professor Laurence Tribe have been promoting the cause of non-intervention into the decisions of Mr. Schiavo regarding his wife.
Legal involvement and "Terri's Law"
In 2004, Michael Schiavo won a court case to have his wife's feeding tube removed. Days later, the Florida Legislature, in emergency session, passed "Terri's Law," giving Florida Governor Jeb Bush the authority to intervene in the case. Bush immediately ordered the feeding tube reinserted.
On May 19, 2004, Florida Judge W. Douglas Baird overturned the law saying that it "summarily deprived Florida citizens of their right to privacy." Bush appealed the ruling to the Florida Supreme Court and on September 23, 2004 they reached a unanimous decision [19] (http://news.findlaw.com/cnn/docs/schiavo/flsct92304opn.pdf), ruling that the legislature and executive branches of government unconstitutionally intervened in a judicial matter (see Separation of powers) and that "Terri's Law" is an "unconstitutionally retroactive legislation"[20] (http://abstractappeal.com/schiavo/trialctorder05-04.txt). The appellants immediately appealed to the United States Supreme Court.
On January 24, 2005, the U.S. Supreme Court refused to hear the case.
Recent developments
Final actions in state court
On February 25, Judge George Greer ruled that Schiavo could order the feeding tube removed on March 18. The Florida Department of Children and Families—whose leadership, like the rest of the state executive branch, is controlled by Republican state govenment—attempted to intervene by investigating allegations of abuse by Schiavo. This could have resulted in a 60-day delay before the feeding tube was removed, but the request for the delay was denied on March 10. Similarly, their request to be permitted to attempt to spoon-feed Mrs. Schiavo if the feeding tube is removed was denied on March 8.
Monetary offers
On March 11, media tycoon Robert Herring (who believes that embryonic stem cell research could cause Schiavo's condition to be curable in the future) offered $1 million to Michael Schiavo if he agreed to waive his guardianship to his wife's parents. He rejected the offer, as he had rejected other monetary offers, including one of $10 million. The offer expired on March 14, 2005, four days before her feeding tube was removed. Schiavo's attorney, George J. Felos, stated that his client found the offer "offensive."
Florida Legislature
Members of the Florida Legislature were considering a bill that would make removing food and water from patients in a persistent vegetative state illegal without a living will. Although this bill was passed by the Florida House of Representatives by a vote of 78 to 37, the Florida Senate defeated a similar measure hours later, 21 to 16.
U.S. Congress
Schiavo's feeding tube was removed at 1:45 p.m. EST on March 18. At around midnight previously, U.S. Senate Majority Leader Bill Frist, a Republican from Tennessee, and Michael Enzi of Wyoming, also a Republican, announced that Terri Schiavo would be called to testify before the U.S. Senate Committee on Health, Education, Labor, and Pensions on March 28, 2005 in Washington. Frist, a physician, serves on the committee; Enzi is its chairman. Because of her condition, Schiavo cannot testify, but the letter that they sent gave her federal protection as a prospective witness (a law used in the 1950s and 1960s, designed for Mafia witnesses, makes it a federal crime to prevent a person from testifying before Congress).
Republican leaders in the House of Representatives, including Dennis Hastert of Illinois, Tom DeLay of Texas, and Tom Davis of Virginia, opened a congressional inquiry of the House Government Reform Committee, to take place in Clearwater on March 25, and issued subpoenas for Terri and Michael Schiavo and several hospice workers. Greer struck down the subpoenas as unconstitutional and let the order that gave Schiavo permission to remove the feeding tube stand. Greer ordered that the tube be removed immediately, per Mr. Schiavo's request.
On March 19, 2005, congressional leaders announced that they were drafting a bill which would order the reinsertion of Schiavo's feeding tube and transfer the case from state court to federal court. In the very early hours of March 21, Congress approved emergency legislation. Despite an absence of quorum, the Senate approved the bill by voice vote. Only three Senators, Bill Frist (R-TN), Rick Santorum (R-PA), and Mel Martinez (R-FL), were present. The bill passed unanimously, with 97 Senators not present. Meanwhile, in the House of Representatives, deliberation continued during an unusual Sunday session. When it came to a vote, the motion was passed 203-58, with 174 Representatives not present on the floor at the time of the vote. The vote took place at 12:41 a.m. EST. About at 1:11 a.m., Bush signed the bill.
The U.S. Congress may also consider another bill to prevent Schiavo's death, called the "Incapacitated Person's Legal Protection Act" (House Resolution 1151). The primary sponsor of the House bill is Dave Weldon, a physician. Weldon claimed that medical evidence "prove[s] Terri is not in a vegetative state," although he hasn't examined her.
According to an ABC News poll conducted over the weekend of March 19-20 and published on March 21, 70 percent of Americans believe that the issue of Terri Schiavo's death should not be a federal matter. In the same poll, 63 percent said that they support the removal of Schiavo's feeding tube. [21] (http://abcnews.go.com/US/wireStory?id=600654)
U.S. District Court
Schiavo's parents, Bob and Marie Schindler, filed a request for an emergency injunction by email with the U.S. District Court for the Middle District of Florida in Tampa on March 21. The injunction would require the feeding tube to be reinserted until the case was heard by the federal court. U.S. District Court Judge James D. Whittemore was assigned to the case. He sent a message back to Mrs. Schiavo's parents saying he was reviewing the filings in the case. A two-hour hearing on the injunction was held on March 21 at 3 p.m. EST but Whittemore did not immediately rule on the matter and gave no further indication as to when a ruling could be expected.
The case was appealed. In the early morning of March 23, 2005 the 11th Circuit Court of Appeals in Atlanta denied the request to reinsert the feeding tube. The three-judge panel ruled 2-1. The 11th Circuit Court of Appeals said the woman's parents "failed to demonstrate a substantial case on the merits of any of their claims. There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the ruling read. "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law." Later that day, the Eleventh Circuit refused to hear the case en banc.
Mrs. Schiavo's parents are appealing again to the US Supreme Court.
Florida Legislature
On March 23, the Florida Senate again debated a law that would make removing nutrition and hydration from patients in a persistent vegetative state illegal without a living will. It was rejected, 21-18.
Interest in living wills
One of the results of this case is that Americans are showing an increased interest in living wills. Prior to the Schiavo case becoming highly visible, it was estimated that only 20 percent of Americans had a living will. Some feel that this will be the push Americans need to make their end-of-life wishes known.
A number of entities have reported an upswing in requests for forms or other information on living wills. The non-profit organization Aging with Dignity has said that they have received thousands of calls and e-mails concerning living wills. The Westfield, New Jersey-based U.S. Living Will Directory national registry reported the number of hits on their website went from about 500 to 600 per day to well over 5,000. Others, such as lawyers, hospitals, and state bar associations, have also seen an increased interest in living wills.
Many have highlighted Schiavo's case to make the point that people should make living wills regardless of age or current health status, pointing to the fact that even younger people can face terminal illness or have an accident. For example, when Schiavo suffered her brain injury when she was only in her mid-20s. They also feel that expressing one's wishes verbally is not enough, and that those wishes should be formally documented. Legal experts say that the entire court battle could have been avoided if Schiavo had properly documented her wishes prior to her collapse.
