Monday, March 21, 2005
I just read the Schiavo complaint, and frankly it is pretty bad. One of the claims reminds me of something you would read coming pro se from an incarcerated individual trying to sue the president or something like that - a claim based on the free exercise of religion clause. You have to be kidding me. The complaint is available here.

I would be absolutely shocked if this complaint was successful, there is simply no merit to these claims that I can really imagine. The equal protection argument is probably the best bet - but I think it is easily dealt with. The due process arguments are completely without merit as will be demonstrated below. If Schiavo did not get due process, then due process is an impossible standard that will never be achieved. No legal system could exist if it was requird to provide every litigant with the due process Schiavo received, much less more due process rights than she received. And someone needs to explain to me why a judge should examine Schiavo - is he a Doctor/ Judge? No. I suspect Judge Greer heard testimony from at least a dozen, and probably many more doctors in this case. How could he add to that by his lay examination?

Beyond the complaint, I just completed reading most of the almost 2 dozen appellate decisions available from Lexis for the In re Schiavo litigation (to be fair, most are simple refusals to hear appeals on various issues due to procedural or other deficiencies). But I am pretty sure there has not been a more thorougly reviewed case - the sheer volume of expert testimony alone. And the Appellate Court even went beyond the standard of review at one point to view issues de novo, and holds even under a de novo review they would affirm (for non-lawyers, de novo simply means they review the case without any deference to the lower court's findings of fact - literally, a new look at all the evidence). Here are some quotes from various decisions that I think make this point pretty strongly.

This is the initial appeal:
Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid-1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

Theresa has been blessed with loving parents and a loving husband. Many patients in this condition would have been abandoned by friends and family within the first year. Michael has continued to care for her and to visit her all these years. He has never divorced her. He has become a professional respiratory therapist and works in a nearby hospital. As a guardian, he has always attempted to provide optimum treatment for his wife. [*178] He has been a diligent watch guard of Theresa's care, never hesitating to annoy the nursing staff in order to assure that she receives the proper [**4] treatment.
780 So.2d 176, 177-78 (Fl. Ct. App. 2001).
The testimony in this case establishes that Theresa was very young and [*180] 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 [**11] 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.
Id. at 179-80.

This is the original appeal from the denial of the Schiavo parents' motion for relief from judgment. The denial was affirmed:

However, at this time, the Schindlers have not seriously contested the fact that Mrs. Schiavo's brain has suffered major, permanent damage. In the initial adversary proceeding, a board-certified neurologist who had reviewed a CAT scan of Mrs. [**21] Schiavo's brain and an EEG testified that most, if not all, of Mrs. Schiavo's cerebral cortex-the portion of her brain that allows for human cognition and memory-is either totally destroyed or damaged beyond repair. Her condition is legally a "terminal condition." § 765.101(17), Fla. Stat. (2000). Although it is conceivable that extraordinary treatment might improve some of the motor functions of her brain stem or cerebellum, the Schindlers have presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and sound or to communicate or respond cognitively to those perceptions.

The new information the Schindlers provided to the guardianship court in the hearsay affidavits supporting their motion for relief from judgment is not as forceful as the evidence described in our hypothetical scenarios. n9 The affidavits concern alleged statements by Mr. Schiavo several years ago. We note that the guardianship court's original order expressly relied upon and found credible the testimony of witnesses other than Mr. Schiavo or [**22] the Schindlers. We recognize that Mrs. Schiavo's earlier oral statements were important evidence when deciding whether she would choose in February 2000 to withdraw life-prolonging procedures. See § 765.401(3), Fla. Stat. (2000); In re Browning, 568 So. 2d 4, 16. Nevertheless, the trial judge, acting as her proxy, also properly considered evidence of Mrs. Schiavo's values, personality, and her own decision-making process.
792 So.2d 551, 560 (Fl. Ct. App. 2001).

This is apparently from similar motions that were refiled by Schiavo's parents, and in addition, they also sought to disqualify the judge, remove Michael Schiavo as the guardian, and to order an independent medical examination. The trial judge denied all the motions, the appellate court reversed as to the independent medical examination but otherwise affirmed. Here is what the appellate court stated in reversing on the one issue (to me this just shows how far the court's went to protect Schiavo and how deferential they were to the Schiavo parents' arguments):
In support of these arguments, the Schindlers filed numerous affidavits from licensed physicians who have reviewed Mrs. Schiavo's medical records, who have considered affidavits providing anecdotal evidence from lay people about her condition, and who have watched a brief videotape of her interaction with her mother at a time close to the original trial. Mr. Schiavo, [**9] as the ward's guardian, has not permitted these doctors to physically examine Mrs. Schiavo or conduct any diagnostic tests.

The affidavits of the several doctors vary in content and rhetoric. Among the affidavits filed by the Schindlers, however, the most significant evidence comes from Dr. Fred Webber. Dr. Webber is an osteopathic physician practicing in Clearwater, Florida, who claims that Mrs. Schiavo is not in a persistent vegetative state and that she exhibits "purposeful reaction to her environment." He swore under oath as follows:

Within the past year, I have treated patients with brain defects similar to Mrs. Schiavo's. In most cases, using cardiovascular medication style of therapy, my patients have shown some improvement, although the degree of that improvement is variable. By "improvement" I mean cognitive and physical items such as speech recovery, enhanced speech clarity and complexity, release of contractures, and better awareness of the patient's surroundings. In my opinion and judgment, based on my 26 years of practice, Mrs. Schiavo has a good opportunity to show some degree of improvement if treated with this type of therapy, although I cannot anticipate how much [**10] improvement.

Purely from a lay perspective, this court must express skepticism concerning Dr. Webber's affidavit. Nevertheless, when a doctor claims under oath that he may be able to restore Mrs. Schiavo's ability to speak and otherwise restore her cognitive function, and when numerous doctors dispute the diagnosis of persistent vegetative state based on the records available to them, it is difficult for judges untrained in any medical specialty to summarily reject their opinions without additional evidence.
800 So.2d 640, 644 (Fl. Ct. App. 2001).

On remand from that decision the trial judge allowed the Schiavo parents to provide additional medical evidence, and on appeal after the judge found against the parents again, the Appellate court had this to say:
On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. [**7] However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.

Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current [*185] medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the [**8] medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was sub jected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions. He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue. These therapies cannot replace [**9] dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state. Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bambakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.

The guardianship court determined that Mrs. Schiavo [**10] remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube. In re Guardianship of Schiavo (Schiavo v. Schindler), Case No. 90-2908-GB-003, 2002 WL 31817960 (Fla. 6th Jud. Cir. Ct. Nov. 22, 2002). When the parents appealed that order, the guardianship court stayed the removal of the nutrition and hydration tube pending review by this court.
851 So.2d 182, 184-85 (Fl. Ct. App. 2002) (emphasis added). The Appellate court properly found that its review was an abuse of discretion review. But yet they went farther and actually conducted a de novo review of the evidence (how was Schiavo deprived of due process rights again? Her parents received less deferential reviews (i.e., more favorable to them) than she was legally entitled to). Here is what the Appellate Court stated:
The Schindlers have urged this court to conduct a de novo review of the evidence in this case, primarily because of the finality of this decision for their daughter. The guardianship court heard live testimony from many physicians. When it reviewed the videotapes of Mrs. Schiavo and the diagnostic tests and brain scans, it did so with the assistance and expertise of those physicians. This court can review the evidence in the record with only its training in the law and its lay experience. It is simply not proper for this court to review such a fact-intensive determination using a de novo standard.

Despite our decision that the appropriate standard of review is abuse of discretion, this court has closely examined all of the evidence in this record. We have repeatedly examined the videotapes, not merely watching short segments but carefully observing the tapes in their entirety. We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the guardianship [**13] court's decision de novo, we would still affirm it.

The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith.

But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life- prolonging procedures. See In re [*187] Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (affirming In re Guardianship of Browning, 543 So. 2d 258, 273-74 (Fla. 2d DCA 1989)); [**14] see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3). It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. But it is also a necessary function if all people are to be entitled to a personalized decision about life-prolonging procedures independent of the subjective and conflicting assessments of their friends and relatives. It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision-maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life. We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment. [**15]

At the conclusion of our first opinion, we stated: 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. . Nothing in these proceedings has changed this conclu sion. The extensive additional medical testimony in this record only confirms once again the guardianship court's initial decision. On remand, following the issuance of our mandate, the guardianship court should schedule another hearing solely for the purpose of entering a new order scheduling the removal of the nutrition and hydration tube. Affirmed.
Id. at 186-87.

There is a great deal of additional subsequent appellate history, but these are the most merits focused opinions (at least based on my quick review).

After reading these opinions I just do not understand how you can make any due process argument. And I cannot imagine that a federal court will reverse the decisions of the Florida state courts. So in the end, more time will lapse, but the same result will occur. I think the real losers in all of this are the parents and other family of Terri Schiavo who clearly are in denial and have not dealt with their grief. It is pretty sad really. Hopefully they will be able to move on. But I have to wonder, why didn't Congress spend 10 minutes reading these opinions before spending days passing a law that will end up doing nothing to change the outcome? It seems to me those who claim it is for pure political gain have some pretty strong support for their argument. I am sure it is a very ideological decision as well, but I find it hard to believe that ideology can completely explain what is really a shocking move by congress.
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