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

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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