Terri Schiavo and The Living Will: We Will Never Swallow The Same Again

Does It Matter That Terri Can't Swallow? No.

The Absent Reflex

Much has been made over the issue of Terri Schiavo’s swallowing. It is because Schiavo cannot swallow that a feeding tube was inserted directly into her stomach.. It is this feeding tube that has been the object of gargantuan legal, moral and ethical struggles.

But what is swallowing and why should it carry such import?

There are three stages of swallowing: the oral, chewing phase; the pharyngeal reflex phase wherein the food is propelled over the vocal cords and into the esophagus; and, the esophageal stage, during which food travels to the stomach.

The fight over Terri Schiavo involves only one of these three stages and that is the pharyngeal stage.

During the pharyngeal stage of swallowing, the body senses there is food in the back of the throat. This “sensation,” initiates a reflex:  an involuntary muscle contraction akin to a knee jerk.

In one rapid sequence the body shutters the nearby opening to the lungs (the trachea) and shunts the food to the esophagus. The reflex is over and the food travels down the esophagus to the stomach.

Swallowing, Breathing, Beating – Not The Same Family

In this way swallowing is entirely different from breathing and heart beating. Breathing and heart beating go on constantly, without stop. Although they too have reflex properties associated with certain of their functions, the motors for breathing and heart beating are in an ever-on position, the alteration of which would mean rapid demise of the organism.

This is not the case with swallowing which, being a reflex, is only used sporadically, during feeding. This is the crux of the case that has been ignored – no abused – by the ethicists and lawyers involved with the Terri Schiavo case.

Most reflex circuits are local, and wired differently from other motor functions. When there is pizza in the back of the mouth the body cannot wait for the cerebral cortex to give permission to swallow. Instead, the rapid swallowing reflex obeys a different, shorter circuit, (much the same as the knee jerk) involving a brief pathway to the nearby brainstem. Studies show that the cerebral cortex is important only in the voluntary initiation of swallowing.

So Why Are We So Focused on Terri’s Cerebral Cortex?

Neurologists, ethicists and hospice specialists are parading across the news each day affirming that Terri Schiavo has so little cerebral cortex that she cannot possibly think, feel or act volitionally. Yet the debate over ending her life is centered NOT on any essentially cortical activity – the debate is over a reflex that occurs on a different neurological level.

What the courts have decided is that because Terri Schiavo has lost the ability to initiate and reproduce this local, noncortical neurological reflex, her fate rests in the hands of Michael Schiavo.

The obtrusive error that has been made here, by the ethicists and the courts, is in centering this case on that reflex.

There can be no doubt that if Terri Schiavo maintained the brainstem swallowing reflex -- everything else being equal -- there would be no court case, and no national hand-wringing. Ms. Schiavo would be left alone to live out her life under the care of her parents.

But we should no more be basing the life and death of Terri Schiavo on this reflex than we should on a knee jerk.

Can’t Pee? Stay Away From Florida’s Courts

What the courts have done is to pick one reflexive neural pathway and decide that this is the critical and key determinant of life and death.

The mistake that has been made – the knot that is being undone – is in centering this legal and ethical decision around the swallowing reflex. Because, the case can now be made that other similar reflexes may similarly be exploited.

Namely, I am thinking of micturation. Urination. Peeing.

Urinating is more akin to swallowing than swallowing is to breathing or heart beating. The urinary bladder fills with liquid and thus stimulates neuroreceptors in the bladder wall that in turn leads to the urination reflex.

Another Tube, Another Problem?

More frequently than swallowing, urinating is a reflexive process that is frequently dysfunctional. For many reasons there are people who cannot adequately perform this reflex and who therefore need the assistance of a tube. In this case it is not a feeding tube allowing ingress to the body; rather, it is a urinary catheter which allows egress.

Tens of thousands of Americans live today with catheters in their urinary bladders. These catheters may be transurethral (through the penis or female urethra) or percutaneous (stuck through the body wall directly into the bladder).

What would happen if one were to remove the urinary catheter from those who have them? They would die. Slowly, urine would accumulate, the kidneys would become engorged via backflow, and nitrogenous wastes would build up in the bloodstream leading to coma and death.

In this sense, there is no difference between a feeding tube and a urinary catheter. So why are we not talking about removing Terri Schiavo’s urinary catheter? Why are we focused on the feeding tube?

That the courts should decide that the primitive local reflexive action of swallowing is the deciding physiological factor between life and death makes no sense physiologically, teleologically or morally.

There is nothing inherently nutritive about swallowing. Neither does the absence of this reflex necessitate death, as would one see were respiration or circulation suddenly be cut off.

The Living Will of the Future?

The bogus argument over Terri Schiavo’s “living will” or desire “not to live like this” has devolved into the presence or absence of this swallowing reflex. Therefore, all living wills in the future will, by necessity, need to be broken down into checklists of neurological items constituting an inventory of both voluntary and reflexive neurological activities that we are either willing, or not willing, to live with.

Would you live without a knee-jerk reflex? Without a sneeze? Without the exhaustive reflexes of micturation and defecation? Which will you choose?

Comments

[Jhn1]

The most interesting part is the refusal by judge Greer to permit any tests to determine if Terri might actually be able to swallow because if she could, then not permitting fluids and nutrition is simply judicial execution.

[JimK]

You continue to focus on completely irrelevant points in this case. It doesn't matter whether Terri Schiavo is in a persistant vegitative state, a minimally conscious state, or (god forbid) completely and fully mentally functional but has lost the ability to have any voluntary control over her body.

The court found clear and convincing evidence that she had expressed her wishes to not have her life maintained by artificial means. Various appeals courts repeatedly reaffirmed this. It has been extensively litigated.

This is a right to die case where the parents don't like their daughter's decision. They have used every legal and a couple of extra-legal methods to subvert it. The question of her actual state of conciousness is only a smokescreen put up to try to make irrelevant issues sound meaningful.

The only issue is whether her husband should be permitted to comply with her wishes or whether her parents are going to be permitted to subvert them.

[CodeBlueBlogMD]

You cannot deny that if Terri's swallowing reflex were not extinct, there would be no case, no trial...nothing.

Therefore, the entire affair rests on the shoulders of this one neurological effect which is akin to a knee-jerk more than breathing.

[Maggie4life]

The clear and convincing evidence was not all that clear. The testimony itself keeps changing to cover up the errors of Michael Schiavo.

I contend that the statute of limitations should have been enforced in this case, that is the length of time between the accident, the alleged statement and the court case was so long that the sudden memory should have been thrown out because it extended beyond a statute of limitations.

This is part of the problem with this case. The decisions of George Greer are not in any way accurate or just. He has rubber stamped the abuse of Theresa Schivo.

[Shari]

This has to do with the CT scan. Thought you might look at this thread quicker.

This is Dr. Cranford (Dr. Death) explaining her CT scan.
See what you think.

http://www.msnbc.msn.com/id/7328639/

[MaxedOutMama]

JimK, Michael himself said on TV that he wasn't sure what she'd want. The "decision" you refer to was never documented in writing, and the witnesses at the trial (Terri's family, Michael's family, and Terri's friend) heard different statements. Assuming they are all telling the truth, Terri had not fully formed her opinion. Somehow, Judge Greer arrived at the position that only one side was telling the truth, using reasoning to throw out the friend's testimony that has since been refuted. But anyway, he found it all "clear and convincing."

Remember never to say that you feel like dying when you're down with the flu - someone might help you along the way. The very idea of informed consent and advance medical directives was formalized so that people could give careful consideration with an understanding of the consequences before expressing a choice. Judge Greer's decision flies in the face of a huge structure of medical consent procedures.

As to the point raised in the post, I too have been wondering "why draw the line here?" Once you establish that people don't have the right to a feeding tube, what's to restrain you from saying that people have no right to a urinary catheter, a colostomy, etc? That, by the way, was one of Michael's statements. Michael said that Terri would kill us all if she knew "he had people taking care of her bodily functions." Many people do regard incontinence with great disgust.

I don't think people will leave the line here. "Bioethicists" have been arguing for quite a while that parts are parts and that some people have less of a right to their parts than others. "Bioethicists" are arguing positions that the bulk of the American public is not aware of. There is a reason why disability groups and the families of disabled are determined to fight this sort of reasoning.

[Mad House Madman]

Unfortunately, I don't agree with your case. I do agree with what JimK had to say and I believe that it is true.

The court have found evidence to support the fact that Terri did not want to live like this. they found this from her husband (who everyone has villified for no apparent reason) AND from her sister. The fact that her parents dispute that Terri has ever admitted this does not say much (how many things do you tell your husband that you don't tell your parents-think about this).

I also don't agree that were it not for this reflex there would be no case. That I believe is untrue.

Finally, this is a seperate point completely and unrelated to your post. Starvation is one of the most peaceful ways to die. (http://content.nejm.org/cgi/content/abstract/349/4/359?hits=20&where=fulltext&andorexactfulltext=and&searchterm=Ganzini+&search_tab=articles&sortspec=Score%2Bdesc%2BPUBDATE_SORTDATE%2Bdesc&excludeflag=TWEEK_element&searchid=1112138328015_10264&FIRSTINDEX=0&journalcode=nejm) sorry for the long link.

Said my peace about Terry Schiavvo. No more.

[William]

Terri CAN swallow.

Michael's own attending physician
admitted this in court testimony.
(available online)

A nurse's affidavit states that
prior to the malpractice trial
she was being spoon fed daily.
(available online)

www.zimp.org/stuff/

[William]

As for JimK's point about irrelevant
points - he is correct about that !

True, Terri is not PVS, according to MICHAEL'S own testimony (available online)
in the Malpractice trial. He narrates a video tape of him walking with her.

But JimK is correct. It IS irrelevant.
Judge Greer has ruled that Terri WANTS to
die.

However, the court found clear and convincing evidence based on -perjured- testimony from Michael (Judge Quesada).

Why did Judge Greer ignore the recommendation of the FIRST Guardian ad Litem - who also pointed out the ONLY person to say Terri would want to die was someone who stood to benefit from her death.

Only later did Michael's brother and Sister-in-law suddenly "remember" detailed conversations with her from years before...

So, for years no one, including Michael, claimed Terri would not wish to live (only 4 months after the malpractice case...).

In the Malpractice testimony, Michael said he planned to become a nurse, and care for Terri for decades, and several people state in affidavits that Michael ADMITTED Terri did NOT say what he now claims!

Judge Greer ignored the sworn affidavits of two women that Michael was romantically involved with AFTER Terri's collapse,
who BOTH stated that Michael admitted Terri had NEVER spoken to him about her "wishes".

("I told KRT, "Kim, I swear to you he never knew what Terri wanted.
He would confide in me all the time about how he did not know, and he would ask me what I thought he should do."
Michael had no idea what Terri's wishes were,")

...i find that very clear and convincing...
but I spent a lot of time reading court
documents and affidavits for myself.

www.zimp.org/stuff/

http://www.theempirejournal.com/53209_schiavo_case_tangled_web_o.htm

http://www.rense.com/

http://www.theempirejournal.com/greer_schiavo_articles.htm

http://host85.ipowerweb.com/~friendso/guardian.pdf
Affidavit of Richard Pearse GAL for Terri, dated 12/29/98

"...according to MICHAEL'S own testimony (available online) in the Malpractice trial. He narrates a video tape of him walking with her."

I keep hearing this, but have not been able to find the documentation. Where is it?

[Maggie4life]

William, you have done good work here. I want to concentrate upon the evidence that does not exist that Terri was bulimic. If you check the hospital records it says that she had an enteric infection that was treated by Flagyl. Since I have not seen the evidence in the malpractice case, I am wondering if this treatment with Flagyl was brought up.

Also, I do believe that there is a good reason to show that Unjust Judge George Greer disregarded evidence that was clear and convincing in favour of evidence that was to say the least, conveniently remembered. There is an angle that I want to fix on relating to recent statements by Schiavo and Felos regarding that "clear and convincing evidence". I have been seeing a set pattern of contradictions in the statements of Schiavo, but not necessarily of Schiavo's own statements. I am not being very clear here, and as I check the details I will post them on my own blog. I am convinced more than ever that Schiavo and his brother were coached by George Felos about what they were to say in court in order for Greer to claim that it was clear and convincing. Remember it was Greer who made the mistake about when Karen Ann Quinlan died, and he said that his mistake was not relevant to his decision.

[CodeBlueBlogMD]

I often wonder if people read most posts or just skim them.

Today's post deals with the pharyngeal phase of swallowing, its neurological control, its relationship to the cerebral cortex and the advisability of deciding that the presence or absence of that reflex decides whether Terri Schiavo will live or die.

JimK bypasses the entire argument and reverts to the standard line about the merits of the case and the court's ajudication. Then others go on to agree with JimK althopugh he adresses nothing I have said except that the swallowing reflex is a completely irrelevant point.

I ask JimK and Madhouse Madman and William the following:

If Terri Schiavo's injury had spared the pharyngeal reflex phase of swallowing (meaning: her videoesophagram would show swallowing reflex without aspiration) she would NOT have a feeding tube.

I ask you. In that case, how would the case come to court? How would Terri Schiavo's "wishes" to not live in a PVS be actuated?

Cyanide? Gunshot? Lethal injection.

Answer? THERE WOULD BE NO WAY TO ENFORCE TERRI SCHIAVO'S SUPPOSED WISH TO DIE IF SHE MAINTAINED A SWALLOWING REFLEX.

Therefore my case is completely and utterly relevant.

It is the absence of the reflexive pharyngeal phase of swallowing that is allowing the court to insist on seeing through Terri Schiavo's wishes as they determined them.

If there were a swallow there would be no feeding tube.

I would also ask all three of these readers to tell me if they think that bladder drainage tubes (Foley catheters) should be removed in cases such as Terri Schiavo? This would actuate death as cleanly and efficiently as dehydration.

How about it?

[William]

Dr Boyle:

I first learned of you in the thread
at Megan McArdle. I was very impressed
by your words, in spite of what I felt
were vicious attacks.

With the utmost respect, I feel you
did not read my two posts.
Please do not include me with JimK.

I of course agree with you completely,
and as my first post stated, there is
NO doubt that Terri CAN swallow !
(I sent you an email earlier tonight
with additional information on that.)

I was only trying to show JimK that
even ignoring swallowing, there is
plenty of evidence that Terri never
made her "wishes" known to Michael
and that he is a liar among other things.

Again, he swore in the malpractice trial he would take care of her for the rest of her life (estimated 50 years), then 4 months later (one month after getting the money)
he suddenly remembered she she didn't want to live ???

Terri supported him when he was unemployed.
She wanted to divorce him, and was afraid of him. As far as I can tell, her "eating disorder" started long after they got married, and Cindy Shook's affidavit (his girlfriend before his current "fiancee") clearly states Michael was the one who wanted Terri to lose weight... until she was anorexic-looking.

The fact he lied to the police about
not fighting with Terri that day, told
different accounts of how he "found" her,
that he knew CPR and did nothing for all
the time he waited (he didn't even call
911 first...), and much more, should also raise serious questions to anyone.

The questions YOU have raised about the shunt have fascinated me. Especially when you said it can actually cause additional deterioration. Michael's orders for Terri to not leave the room (broken wheelchair), no music, no therapy at all, shades drawn, etc., seem to provide for a sensory deprived environment. It seems obvious he wanted her to deteriorate. Like the shunt could do,
and leaving in the implants after the doctor said they should be removed.

Older documents indicated that before the malpractice trial, Terri could talk better, and walk some (including Michael's own testimony). One report clearly stated she was improving.

(btw, I did read an estimate that the healing bone fractures happened about 18 months earlier, which would place them at or before the night she got her neck injury...)

My apologies for being so long...

I intend to continue to read you avidly.
Your latest post about the neurologists is yet more of your parting the clouds of confusion, with what I consider great personal courage in the face of attacks on you.

[William]

Sorry, one more quick point:

Maggie4life makes an excellent point about statue of limitations.

Judge Greer accepted Michael and his relatives suddenly remembering Terri's "wishes" after many years -
yet he rejected the Schindler's perjury motion, because it had been more than ONE year. (the motion that Judge Quesada then ruled in favor of...)

Also, the police never said that Michael didn't abuse and attempt to murder Terri.
What was said was that the Statue of Limitations for those charges had expired...

[Patricia]

Affidavits were never going to be enough in this case, as the judge won't admit them. Any refutations of her being PVS would have to be very public, beyond the internet.

[jaed]

THERE WOULD BE NO WAY TO ENFORCE TERRI SCHIAVO'S SUPPOSED WISH TO DIE IF SHE MAINTAINED A SWALLOWING REFLEX.

I actually don't think this is the case, since she is also under court order prohibiting attempts to give her food or drink by mouth (and police are stationed in her room to enforce this). If she could swallow (or more precisely, if it were unambiguous and uncontested that she can), the court could still have enforced its order by prohibiting feeding by mouth without reference to the tube, since even in this case she'd still need someone to feed her.

[Sylvia]

THERE WOULD BE NO WAY TO ENFORCE TERRI SCHIAVO'S SUPPOSED WISH TO DIE IF SHE MAINTAINED A SWALLOWING REFLEX.

I agree. Jaed, the court documents show that the death judge ruled that nutrition & hydration by normal means is experimental treatment because (according to the experts that he chose to believe said that) she could not swallow. So if she had the swallowing reflex, the feeding tube would never be in place & someone would have been feeding her all along. Unless as the doctor suggested, the death judge would rule to give her cyanide, lethal injection, or gunshot!

[JimK]

There are a number of very good points raised in this thread, so it took a while to give appropriate thought to the answer.

First to the author of this blog. I think the default position has to be the no artificial means says exactly that. In other words, catheterization, etc. would be included. Having said that, this really gets to the heart of why we need advanced directives and thorough discussions with whomever we’ve given our medical POA to. If I’m fully conscious and otherwise normally functional, I may very well decide for myself that catheterization is not included and I’ll be just fine with a catheter in. If I’m non-responsive with no prospect for improvement (yes, I know there is also a difficult definition in the words no prospect for improvement), I’m going to want my medical POA to pull the catheter or refuse to have it inserted. I have no desire to torture my family by unnecessarily prolonging my body after I can’t direct its use.

These are all items that can be, but probably won’t be, covered in written advanced directives. I imagine each of us could think of exceptions we would like to write into such directives, but including all possible scenarios could quickly lead to a book the size of War and Peace. It is much more problematic in the absence of written directives since the comment “I wouldn’t want to have my life maintained like that” can have many different meanings to different people. Once again, make sure your medical POA is willing to “think like you” and make tough decisions when necessary. In the absence of a medical POA, the default is your spouse in most states, so make sure they know what you want and are willing to stand up to those who would not carry out your wishes, whatever they are.

To those questioning sudden remembrance of verbal directives years later, by following a couple of links off of Shrinkette’s blog you can find a lawyer discussing why it was in neither the plaintiff nor the defendant’s interest in the malpractice suits to bring up Terri’s wishes.

There is also a question of when do you give up hope for improvement. How many years will it take for any of us to decide that our (parent, spouse, child) will never get better? When have they reached the point at which THEY would want to let go? My mother and I faced this question 37 years ago when my father was dying of emphysema and COPD. Fortunately, we had a Physician who was willing to let us make this decision even though at the time, it was against almost everyone’s official policies. I’m going to face it again as my mother is in a nursing home with moderate to advanced Alzheimer’s disease.

As to the question of how one would carry out Terri’s wishes if she still had a swallowing reflex, that one has no good answers. The line between complying with a patient’s wishes and euthanasia gets awfully fuzzy there. In the absence of written wishes, it’s going to be a tough call for anyone to withhold food and/or water from someone who can swallow normally. I suspect this is a more common problem than most of us thought. When my mother was first diagnosed with Alzheimer’s, we dealt with an elder law attorney to make sure her advanced life directives and medical POA were done properly and, hopefully, avoid future problems. One of the clauses he suggested inserting, based on his past experience, was what her wishes would be if she was in just this condition….no control over bodily functions, unable to feed herself, but able to swallow if someone put food down her throat. She wrote in that she was to be denied sustenance, but I suspect we’ll have some in depth discussions with the ethics committee at the nursing home if she arrives at that point.

As far as questions of statute of limitations….Since appeals courts found no reversible errors in either decision, I have to assume that the court was in compliance with the applicable laws.

In regards to the recently raised issue of abuse or attempted murder. I don’t see any conflict between carrying out Terri’s wishes and prosecuting Michael for any crime for which they can find evidence. In fact, if you believe Michael attempted to murder her, pulling her tubes would likely convert it from attempted murder to a murder case and provide for a stiffer sentence. It seems if I was a spousal victim that would also be in line with my wishes.

[mod ervador]

I believe there's no contention (other than that raised by Dr. CBB) that Ms. Schiavo maintains a swallow reflex. She swallows her own saliva. She also maintains significant brainstem activity in other areas as well, and nobody has contended the opposite (as far as I know). The contention is over the amount of activity above the brainstem.

Swallow tests have been performed in the past on Ms. Schiavo. There were apparently insufficient cranial sensory and/or motor pathways intact to elicit the pattern that propells the bolus near the back of the mouth to a position where the involuntary (brainstem, or medullary) esophageal reflex component would take over, i.e. she couldn't swallow any more than minimal saliva production. So this was consistent with other indicators of loss of cortical activity. In one of the later tests (I can't find the link now) she aspirated. Thus it was reasoned that further testing posed a risk, with no probable cause to suspect improvement in that area given the other indicators which were unimproved.

[Maggie4life]

There is one issue that is being avoided with these answers. I would like to respond to JIMK but I do think that it would be getting off the topic to respond in any depth about what perhaps for him is an attempt to ease his own conscience about life decisions that were made. I think that he needs to do some further research on this whole case - sometimes you have to read with a grain of salt.

There is testimony via affidavit that Terri Schindler could swallow and that she was able to consume pudding. This testimony was tossed out by George Greer. The nurse that gave this testimony stated that they had given her feed via a bottle - that means she could suck in the same way as a baby. I have a few other thoughts on the subject of babies and reflex actions, but they are not relevant here.

What I would like to know is why the judge was allowed to state that hand feeding Terri would be experimental.

I am of the view that the whole thing, the way in which this woman has been set up to die is a charade. I need to get my thoughts down on my own blog about some issues that have come to light in a Larry King interview.

[Bill]

As modervador notes, she failed at least 3 "gold standard" modified barium swallow tests (http://abstractappeal.com/schiavo/WolfsonReport.pdf)

"The ability to orally ingest food and water – to swallow substances other than saliva, is predicated on a level of cognitive capacity.

Without cognitive capacity, the intentional act of oral nutrition and hydration is likely to lead to aspiration. Eating and drinking are not unconscious processes.

Therefore, Theresa's neurological status is directly linked to her ability to swallow." (pp. 27-28)

Maggie,

The CNA (not a nurse) who stated in her affidavit that she could swallow Jello didn't have the medical background/training to be able to evaluate whether she could swallow safely.

There was no way for that CNA to know whether she was swallowing or silently aspirating.

[Kathleen]

Re the clear and convincing evidence: I am a lawyer, a Canadian lawyer albeit, but I believe the law of evidence is the same in Florida: communications between spouses are privileged (a spouse cannot be called to be a witness as to what the other spouse said). So Michael Shiavo's evidence about Terri's purported death wish was not only inadmissable as hearsay, it was inadmissible as a privileged spousal communication.

The only other witnesses to Terri's death wish were Michael Schiavo's brother and sister in law. Their evidence of her statement was also hearsay. But then then evidence is a third year course. Judge Greer would have dropped out by then.

This case will stink to the high heavens for a thousand years. Hitler is dancing in hell.

[mod ervador]

Kathleen,

isn't it more like "a spouse cannot be FORCED to be a witness as to what the other spouse said"? If the spouse freely offers, then the "privileged" status is waived, right?

Anyway, hearsay is admissible in some cases. If 3 witnesses say that "she said X" and under cross-examination their reliability as witnesses is not impugned, then it has been reliably established that "she said X."

http://abstractappeal.com explains it better.

Considering the number of appeals this case has had, if the rules of evidence were violated it would have been dinged for that early on.

No. Spousal communication are not admissible. Period.

Judge George Greer's negligence regarding evidence:

According to Florida law, as I understand it ( I do not practice in that jurisdiction) in order to withdraw life support from a dying person there must be "clear and compelling" evidence of the patient's wishes (this law was cooked up by George Felons oops Felos himself).

1. Hearsay is inadmissible unless it falls into one of the exclusions, which Michael Schiavo's evidence of his cuckholded wife did not fall into

2. Communications between spouses are inadmissible as evidence (that is why gangsters marry their girlfriends before being tried for a crime.) Therefore Michael Schiavo's evidence was inadmissible at both kill Terri hearings as a privileged communication and hearsay.

3. Michael Schiavo's evidence at the hearing to kill his estranged wife should have been impeached by a prior inconsistent statement made in Terri's malpractice trial when he said that Terri's life expectancy was 51 more years, that is why he needed 20 million, that he was going to care for her for the rest of her life, and he did not disclose to the malpractice jury that she had expressed a death wish which he intended to follow up on.

4. The only other evidence of Terri Schindler-Shiavo's purported death wish was that of Michael Schiavo's brother and sister in law. These witnesses were never cross-examined. Their evidence was also inadmissible as hearsay.

Judge Greer's negligence regarding the issue of guardianship:

5. Terri should have had her own guardian for the purposes of the kill Terri litigation (a guardian ad litem). In Florida it is illegal for a judge to act as guardian ad litem for anyone other than a member of his own family. Judge Greer said that he felt that he could act as guardian ad litem for Terri himself.

6. Judge Greer was in a conflict of interest. He had received campaign donations from George Felons, oops Felos and other lawyers acting for Michael Schiavo.

7. Judge Greer permitted most of the malpractice funds ($447,000)which a jury had allocated specifically to Terri for her rehabilitation, and which were held in trust by the Court, to be paid out to George Felos and other lawyers acting for Michael Schiavo in his quest to have her legally killed. This is a clear breach of a fiduciary and judicial duty.

Judge Greer dismissed three applications to have Michael Schiavo removed as guardian. This was also in violation of guardianship law which requires that there be no material conflicts of interest between the guardian and the incompetent person. If Terri was to recover MS would not get the funds allocated for her rehabilitation that were remaining after his quest for her death. Further, as he had taken on a common law spouse (a criminal offence by Florida law) he was in a conflict of interest. If Terri recovered, what would he do - scrap the common law wife and kiddies and go running into her arms. No. There was no solution for Terri but that she be dead. Michael did not divorce Terri and marry the common law wife because then he would not have inherited her estate. Michael Schiavo had every reason in the world to want his disabled wife dead. None of those reasons had to to with any death wish he remembered after he got his hands on the $1.4 million.

Judge Greer's negligence in administering Terri's death sentence

8. Judge Greer prohibited the administering of water or food by mouth for Terri after he ordered her killed which is in breach of Florida law, and that of all 50 states. Bobby Schindler said that his mother would have been arrested on the spot if she had tried to put ice chips to Terri's lips.

Want more?

I believe that Judge Greer's cronies in the Local Bar association gave him a special award for the handling of the Shiavo case. A lot of good ole boys sure wanted Ms. Shiavo dead.

Here is the statute. I looked it up.The spousal privilege, codified in section 90.504, Florida Statutes (1995), provides in pertinent
part:
(1) A spouse has a privilege during and after the martial relationship to refuse to disclose, and to
prevent another from disclosing, communications which were intended to be made in confidence
between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator [*323] of a
spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is
presumed in the absence of contrary evidence.

Terri was never given the opportunity to invoke spousal privilege over the alleged comment that got her killed.

Spousal privilege can be waived, See: OSCAR RAY BOLIN, Petitioner, v. STATE OF FLORIDA, Respondent. 650 So. 2d 19; 1995 Fla. LEXIS 203; 20 Fla. L. Weekly S, but as we all know Terri did not waive it.

Presuming that she would have invoked it if she could have, the only remaining evidence is that of M.S. brother and sister which was not subjected to cross examination.

[pull your own damn plug]

Here is why Judge George Greer should have excluding Michael Shiavo's brother, and sister in law's hearsay evidence which killed Terri Shiavo.

The following is an excerpt from a case where the 11th Circuit Court of Appeals explained why hearsay evidence, except for certain exceptions, must not be admitted. They said:

Because of the importance of this evidence to THY's case, we will discuss in detail why this
evidence is inadmissible hearsay.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). The rationale

behind the hearsay rule is the untrustworthiness of hearsay statements. United States v. Brown, 548
F.2d 1194, 1205 n. 19 (5th Cir. 1977). Hearsay presents substantial [**24] risks of insincerity and
faulty narration, memory, and perception. Id. (quoting Morgan, Hearsay Dangers and the Application
of the Hearsay Concept, 62 Harv. L. Rev. 177, 218 (1948)).
T. Harris Young & Assoc., Inc. v. Marquette Electronics, Inc.

[mod ervador]

Folks, regarding issues of the law, these are interesting points. According to my reading of the judicial orders, some of the points were already brought up in appeal (some of them repeatedly) and were found to be without merit. Some of the other points may have been considered by the Schindlers' lawyers but not pursued perhaps because they knew they would fail. On the other hand, maybe some of this stuff can become fodder for a top-notch wrongful death and/or malpractice case against counsel for the Schindlers and/or the entire judiciary that reviewed and rereviewed evidence and conduct of the courts. I say go for it.

Thanks for the quote of 90.504 Florida Statutes (1995). "A spouse has a privilege during and after the martial relationship to refuse to disclose" means disclosure can be made voluntarily. If what is disclosed can be reliably be shown to have been disclosed to persons other than the spouse, then it cannot be considered as "communications which were intended to be made in confidence between the spouses while they were husband and wife," therefore "the privilege is presumed in the absence of contrary evidence" is automatically waived by presense of contrary evidence.

[pull your own damn plug]

Thanks mod. But there should have been a voir dire on the admissibility of the spousal communication first and the lawyers could have argued that it was or was not a privileged communication. Terri would have had the chance to claim the privilege as Mr.Bolin successfully did in setting aside his death sentence, which was based in part on a spousal communication which was reported by his wife to sheriffs and others.

Could you point me to the voir dire in the transcript of the two kill Terri hearings? That would be more helpful.

The point of making spousal communications privileged and not admissible in evidence it to keep the state out of the sanctity of marriage. Michael Schiavo and Judge Greer did not hesitate to drag the state over that sacred relationship by having Terri's words "No tubes for me" become part of the record for her execution.

Due to this simple breach of the law respecting privileged communications, and other flagrant legal errors, Terri Schiavo was deprived of her life without due process of law as required by the fifth and fourteenth amendments of the US Constitution.

The Shiavo kin statements of Terri's death wish were rank hearsay ie they do not fall with any of the exceptions such as dying declaration or business records. They would not have been admissible in a moot trial of first year law students. If you can point out the relevant exception that would have made them admissible, please do.

[Sam Davis]

All the legal talk is great, but isn't this thread about swallowing?

Dr. CBB: I agree with you. If she could have passed a swallow test there would have been nothing to decide in court. I cannot understand the flimsy reasoning that says the danger of Terri asperating during the test is somehow worse than killing her by dehydration/starvation.

[Maggie4life]

From memory, it was claimed that Terri had a couple of those tests and in one of the tests she aspirated. I think that this was in part the reason that she had the tube. However, these tests were in the early period when she was still recovering from the most severe effects of her spinal cord injury.

Since nurse's aides are given the responsibility of assisting with feeding of patients, I find it difficult to accept the idea that a CN would not understand whether or not Terri was able to swallow. Having looked again at the testimonies, at least 2 of the nurses who came forward provided evidence that they gave food and drink to Terri prior to 1993 when Michael forbade them from doing anything more for Terri. These witnesses came forward independent from each other. At least one of them no longer works at Sable Palms. They have their careers on the line as carers by coming forward and signing the affidavits.

Now, consider this, the nurses are prepared to do a lie detector test. Michael Schiavo refused the offer to take a lie detector test. If he was telling the truth about the situation why was he so afraid of a lie detector test?

One of the difficulties that I have with the way in which this case was handled is the fact that George Greer tossed out every single piece of evidence that pointed to Terri being cognizant. Why did he refuse to accept the evidence? Another thing I do not like is that he made decisions but did not give reasons for his decisions.

I smell a rat (in Australia even) when it comes to statements such as anyone who claims that any evidence that says Terri can be helped is flawed. On this premise he rejected the evidence of both Drs Hammesfahr and Dr. Maxfield. I have now seen a part of the transcript of the testimony of Dr. Maxfield. He had copies of the 2002 CT scans blown up for use in the courtroom. The evidence of this scan showed that Terri's brain was not as bad as made out by the deathketeers (Cranford, Felos, Schiavo). That is why Felos has been at pains to state that the scans were grainy and not useful. I smell an even bigger rat (the stench is really high) when I learned that George Felos had contributed to the campaign funds of George Greer, the day after a momentous decision regarding this case.

The mere fact of the level of corruption involved in the putting to death by judicial homicidal decree as ordered by George Greer and carried out by Michael Schiavo and George Felos, is a red flag as to what really is in the background. There are too many unknowns in this case. The evidence of Brian and Joan Schiavo is tainted because of their timing. There was enough time for George Felos to have coached them in what to say, once they realised that MS's evidence was suspicious. How very convenient that they came forward. Credible evidence? No way.

[mod ervador]

pull your own damn plug,

Rather than wade through the 1998 and 2000 trials, I'm going to make an educated guess that voir dire on the hearsay issue does not exist. Even if it did exist, it would seem to not matter to you since you already consider the use of this particular hearsay evidence "simple breach of the law respecting privileged communications." You'd think that with all the other esoterica they handled, the Schindlers' lawyers would have been competent enough to have argued that point, so why wouldn't they? Because that dog doesn't hunt.

Now think of what your first year law school moot court analysis would mean to someone who executed a written living will to terminate life support, but later recanted it by oral declaration to her spouse that she wanted to maintain life support indefinitely. Should she find herself in a persistent vegitative state, do you really mean for the court to "keep the state out of the sanctity of marriage" by ignoring any and all "privileged spousal communications"?

Fortunately, the law doesn't agree with you (as the Schindler's counsel was not doubt aware). In _In re Browning_ (1990) it is clear that oral statements to a surrogate (read: spouse) are allowed. Furthermore, in _Cohen and Carlyle v. Cohen_ it is clear that oral statements to a spouse can over-ride the person's previous written statements. Finally, in Fla. statute 765.104, it is clear that the most recent oral statement to the surrogate (made in competence) will carry the day, regardless of what was said or written before.

http://abstractappeal.com/schiavo/browning.txt
http://www.4dca.org/Mar%202005/03-09-05/4D03-3923.pdf
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC104.HTM&Title=-%3E2004-%3ECh0765-%3ESection%20104#0765.104

[mod ervador]

Maggie,

Dr. Maxfield is a radiologist, not a neurologist. At the time of pre-2002-trial deposition, he had never been called upon to diagnose persistent vegitative state. During trial, his use of the terms "coma" and "PVS" were not in line with industry practice and he often confused the symptoms. His expertise in diagnosing Terri's state was suspect.

The testimony of Dr. Hammesfahr, a neurologist by training, is incredible. The way he danced around the symptoms of PVS was almost ballet. He avoided using the term "decorticate posturing" as a direct reference to her posture by saying instead that she does not have true decerebrate posturing. He pressed on her palm and leg and elicited reflexive responses typical of the hyperreflexivity seen in upper motor neuron syndrome, but he said these were voluntary responses to commands he had spoken at the same time as the physical stimulus. He performed a "clasp-knife effect" maneuver and got her arm to extend to where the stretch reflex suddenly releases, but again attributed it solely to a spoken command. He even elicited a Babinski reflex but stopped short of saying what that indicated.

He characterized anything beyond a "twitch" as voluntary activity; he avoided saying that the response was typical of PVS by saying it was inconsistent with coma; the list of mischaracterizations goes on. He relayed his results anecdotally and did not present any statistical analysis of his experiments, like the way he could present no statistics of numbers, types and outcomes of patients in his care; in short he was a poor scientist. Either he was unqualified to diagnose Terri or he was qualified but rigged his experiment to be able to say that he thought she had awareness in such a way that laypeople might not detect, the result being that he was able to raise the Schindlers' hopes that he could improve Terri's condition.

[pull your own damn plug]

Mod: Re oral statements after a written living will "the parole evidence rule" would mean that the living will would override the oral declarations.

In the case to which you refer the woman had a living will. The court in that case,in what is called "obiter dicta" or side and non precedential comments, implied that clear and convincing oral declarations would also suffice. But that was not the case before them and I believe their obiter statements would not stand up to review by anyone but you and Judge "no food for you".

In any case TS saying that she "wouldn't want to live like that" in reference to an ill grandma, and "not wanting to be a burden" (the exact details constantly changing) in reference to a movie scenario, is hardly is a clear and convincing oral declaration of a wish to be dehydrated and starved to death. MS and his bro were two of the hearsay witnesses, the third witness couldn't even remember what TS said.

The Judge obviously thought TS said to her sister -in- law the following:

"I want to be found unconsious in the early morning after a terrible fight with my spouse, by that 6'6" spouse in suspicious circumstances lying face down by the paramedics, although my spouse would frequently say that he picked me up and turned me over and held me in his arms,

I don't want my husband who is trained in CPR to turn me over or resusitate me,

I want to win him a million and a half dollars,

have him spend half on a lawyer to kill me and derogate and bankrupt my family,

spend the other half on some floozies and then live with a floozie and their two kids for 10 years,

then I want to be locked away in a hospice which has that same Ghoul Felons lawyer who is trying to have me killed by the court on the board of directors,

with no light or stimulation while my estranged spouse gets his nursing degree, gets hired as a nurse for the Sheriff that works for Judge "No food for you!" and then opens an insurance business with his floozie so that he can surrepticiously buy even more life insurance on my life, and then,

did I mention that the nursing home would be sued for using private donations to fund a for-profit software company and for using patient records to create that nursing home software,

and after two show trials have Judge "no tubes for you" breach 1000 years of the common law on evidence and Floride statute just to make sure that I am tortured and murdered,

I don't want a guardian ad litem, or the one that said that my spouse is biased, or my own lawyer to represent me,

I want the Judge to unlawfully appoint himself my guardian-ad-litem,

with my family begging and pleading for mercy to save my life, along with the Governor of Florida, the President of the United States, and the Pope (not to mention the US Senate and Congress) not to mention 20 million people asking for the courts to give the case a second look,

have the courts go home instead and eat a big Easter feast while I further waste away,

I want to have my parents, brother and sister watch me waste away for 14 days, the outer limit of human endurance,

but then they would not get be at my side when I actually die(most likely from an overdose of morphine to ease my non-existent pain)

because they were kept out of the room for the 10 minutes before I died,

then I want to undergo an autopsy by a ME, be cremated against my religion and have my ashes buried far away from my estranged spouse where my family couldn't find them.

Mod, do you think she said that?

[mod ervador]

Parole evidence rule, huh? An advanced directive is not a contract between two parties; the rule does not apply.

The laws are there, they were duly followed, you haven't shown otherwise.

You think nobody (but Greer) would find the testimony of TS' husband, brother-in-law and sister-in-law convincing? Guess again:

_In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated._ (Jan. 24, 2001)

"Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So.2d at 273."

You think the evidence that TS was in PVS with no hope of recovery or new treatment never got a second look? Guess again:

IN RE GUARDIANSHIP OF THERESA MARIE SCHIAVO, Incapacitated (June 6, 2003)

"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 court's decision de novo, we would still affirm it."

Your harping on other points shows a similar disconnect with the truth.

[pull your own damn plug]

Mod. You sound a little hot under the collar.

Parole evidence rule: Oral or verbal evidence: that which is given by word of mouth; In particular with deeds wills, and other writing. This evidence rule seeks to preserve the integrity of written agreements by refusing to permit contracting parties to alter import of their contract through use of contemporaneous oral declarations...this rule is applicable to wills and trusts. Black Law Dictionary.

Accordingly your hypothetical wife had better get herself to a lawyer like me to withdraw her previous written advance directive to die if she doesn't want her husband to say... strangle her, collect a million bucks in a malpractice suit, cohabitate in violation of state law with a floozie, have a several kids out of wedlock with a couple of women and then dehydrate and starve her to death - all the while tormenting her mom, dad, sister and brother who love and just want to take her home and care for her.

[mod ervador]

I appreciate the plea for people to get their advanced directives made known. We already have that covered, thank you, but we do have considerably more resources at our disposal than first year law school moot court and Black's Law Dictionary.

In retrospect I may have been too superficial in my dismissal of the Parol Evidence Rule. Despite the obvious difference between a will or deed (which is a type of contract) which concerns real property or real estate that is to be conveyed by one party to another, and a "living will" wherein a single party "express[es] the principal's instructions concerning life-prolonging procedures" (Fla. s. 765.101) to exercise "the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment" (Fla. s. 765.102), let's consider the PER more deeply as it applies to the advanced directive.

The PER provides that at the time an agreement is reduced to writing in an unambiguous document, prior and contemporaneous oral statements and prior writings outside of the document that would modify the terms of the agreement are superceded by the terms memorialized in writing. The PRE contains exceptions, e.g. where a contract is found to contain ambiguity or error(s), the finder of fact may admit parol evidence to divine the intent of the parties in agreement. More importantly, the PRE specifically does not bar either written or oral agreements made in transactions subsequent to execution of the written contract.

In this vein, Fla. s. 765.104 is quite consistent with the parol evidence rule: "(1) An advance directive ... may be amended or revoked at any time ... (c) by means of an oral expression of intent to amend or revoke." In Fla. s. 765.302, "a living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal's wishes." That would tend to mean that evidence of oral statements subsequent to the written directive would have to rise to the level of "clear and convincing evidence" to rebut the written directive. But again there's nothing to indicate that writing trumps subsequent oral declaration.

In Cruzan (1990) the US Supreme Court concluded that "a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state." In the absence of an advanced directive, according to Fla. s. 765.401(3) "a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent." This is consistent with the SCOTUS. In Terri Schiavo's case, multiple courts found clear and convincing evidence that she would have chosen to withdraw life-prolonging treatment. In so concluding, they likely considered that more recent statements about her own situation, should she find herself in it, superceded statements of several years prior regarding somebody else.

Thus the parol evidence rule is interesting to consider vis a vis its implications for oral vs. written living wills, but it ultimately reinforces the notion that the will is orally amendable. So the statement "re oral statements after a written living will 'the parole evidence rule' would mean that the living will would override the oral declarations" is simply false. It is also a red herring, because there was no written directive in TS' case and again you haven't been able to show where the law was not followed. If you are more effectively making your case elsewhere in a law-oriented blog, please post the link so that we can avoid furthering a long, non-medical tangent here.

Because this is a medical blog, but because your interest seems to be in law, why don't we cover an area of overlap, this living will thing, in another way? Maybe you'll indulge us. What law(s) would you enact so as to avoid putting to death those who would not have chosen to withhold life-prolonging treatment? Like those currently in place, your proposed laws should recognize "the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment." What say you?

[purple_kangaroo]

mod_ervador and anyone else, I've been discussing the law and ethics angle along with some aspects of the medical angle quite a bit on my blog. I'd enjoy anyone's interaction on it. Here's my most recent post discussing various scenarios and wondering what would be the best solutions for making end-of-life decisions. I certainly don't mind discussing it here if CBB doesn't mind, but I don't want to hijack his medical blog either. :)

http://www.xanga.com/item.aspx?user=purple_kangaroo_Angela&tab=weblogs&uid=251028459

[purple_kangaroo]

Actually, scratch that link. I forgot I just opened a new Blogger account, where you can post without having to be a member. So that would probably be easier. I just reposted that post over there. http://purplekangaroopuzzle.blogspot.com/2005/04/end-of-life-decisions-and-law.html

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