Thursday, August 28, 2003

Court-ordered treatment for patient in persistent vegetative state.

Terry Schiavo has been in a "persistent vegetative state" for 13 years (I think the American Academy of Neurology would call this a "permanent vegetative state"). Her guardian is her husband, who has petitioned the courts in Florida for permission to withdraw her feeding tube and allow his wife to die a natural death. Her parents opposed the petition, as do the approximately 27,000 e-mailers who have allegedly asked the Governor to intervene. Jeb Bush has now done that, at least informally, by sending a letter to the judge who will hold a hearing on the husband's petition on September 11th. Gov. Bush has asked for the appointment of yet another guardian to look into the treatment decisions being made by Terry's husband. Meanwhile, Terry has developed what CNN describes as "a severe total body infection," and the court ruled on Tuesday that the infection must be treated aggressively between now and the Sept. 11th hearing date.

It seems extraordinary that a PVS patient's life-threatening infection has to be treated aggressively over the objection of her husband and guardian, especially if the trial court is only trying to preserve its jurisdiction long enough to have a hearing and rule on the pending petition to establish a date and time for the withdrawal Terry's feeding tube. If so, this ruling surely represents the triumph of form over substance, considering all of the legal proceedings that have previously occurred and the legal status of the case as of Tuesday.

The fact is, this is not the husband's first foray into court to get an order allowing his wife to die a "natural death." The Second District Court of Appeal has already ruled that life-sustaining treatment should be withdrawn pursuant to the guardian's request. The court was then asked by Terry's parents to order a hearing to determine whether "new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex-- significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo that treatment and would reverse the prior decision to withdraw life-prolonging procedures." The appellate court granted their request on Oct. 17, 2001, and ordered a hearing. The hearing was held between Oct. 11 and Oct. 22, 2002, and on Nov. 22, 2002, the Florida Circuit Court entered the following order:
Accordingly, it is
ORDERED AND AJDUDGED that the Motion for Relief from Judgment filed herein by Robert and Mary Schindler, Respondents, be and the same is hereby denied.
In the event the Motion for Relief from Judgement is denied, the Mandate also requires this court to follow the dictates of the prior Mandate of the Second District Court of Appeal and "enter an order scheduling the withdrawal of life- support". Accordingly, it is
FURTHER ORDERED AND ADJUDGED that Michael Schiavo, as Guardian of the Person of Theresa Marie Schiavo, shall withdraw or cause to be withdrawn the artificial life-support (hydration and nutrition tube) from Theresa Marie Schiavo at 3:00 p.m. on January 3, 2003.
On June 6 of this year, the Second District Court of Appeal affirmed the trial court's ruling, ending its opinion with this language:
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.
Schiavo I, 780 So.2d at 180. Nothing in these proceedings has changed this conclusion. 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.
According to CNN, the Florida Supreme Court declined to review this decision in an order handed down last week.

So: what's left for the trial court to do? The Court of Appeal has twice affirmed trial court rulings that the guardian's decision is amply supported by the record and that Terry Schiavo should be allowed to die. The parents have fought a desperate battle to alter the outcome based upon their mistaken belief that their daughter's PVS can be treated and they will get her back. The guardianship court has no discretion, as I read the June 6 order of the appellate court, to do anything other than enter its own order to set a date for the withdrawal of Terry's feeding tube. No legal question remains concerning the appropriateness of this husband to serve as guardian or the appropriateness of his decision to withdraw life support from his wife. Meanwhile, physicians are under a court order to stave off the inevitable with aggressive therapy so that Terry Schiavo can be allowed to die of malnutrition or dehydration, instead of dying from the infection that is ravaging her body, while an opportunistic governor succumbs to the temptation to turn that body into a political football. This is nuts.
posted by tommayo, 6:12 AM

Health care law, with digressions into constitutional law, poetry, and other things that matter