Dr. Cranford's Complete Terri Schiavo Report
It is Lengthy, but full of details on the long case, and in my estimation further explaining that the case has been fairly handled....and should be ended.....Read on: (If you don't have the time, just slide down to the section titled "Concluding Comments" where you'll find a summary.
"Facts, Lies, and Videotapes: The Permanent Vegetative State and The Sad Case of Terri Schiavo
Introduction
Right to die legal cases in the United States have evolved over the last 25 years, beginning with Quinlan in 1975. Different substantive and procedural issues have been raised in these cases, and society’s thinking has changed, with far more complex legal issues appearing today rather than the simplistic views raised in the landmark early cases. Many of the early cases involved patients in a vegetative state, but more recently patients who were in a minimally conscious state have been the center of attention. Early cases involved the withdrawal of respirators and other sophisticated technology, but later cases centered on the withdrawal of artificial nutrition and hydration, and even whether it was permissible for competent patients to stop eating and drinking in a normal manner. Early cases pitted families who argued for withdrawal of treatment usually against the attending physicians and hospitals, and/or the state or federal government, who argued for continuation of treatment. In a few more recent cases, strong disagreement among members of the immediate family has arisen, with spouses advocating non-treatment and other family members, usually parents, opposed to stopping treatment. (1-4)
The Terri Schiavo case in Florida is similar in many major respects to other major landmark legal cases as it involves the withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state. (5-7) Also, similar to more recent cases (Martin in Michigan and Wendland in California) the spouse requests cessation of treatment, while other family members of the patient are strongly opposed, resulting in extensive litigation over protracted period of time. (8-9) However, Schiavo has a few characteristics distinguishing it from all other previous cases: 1: the extreme animosity between the husband, Michael Schiavo, and the patient’s family, the Schindlers, with prolonged legal battles (and a war waged in the media and over the internet) resulting in a never ending series of motions, decisions, appeals, and trials over a eight year period; 2: the extensive and heated debate over the neurological condition of the patient, including flagrantly unbelievable testimony by two physicians at the evidentiary hearing (as well as numerous sets of affidavits submitted to the Florida courts) on the neurological condition and the proposed use of controversial medical treatments of no proven value; and 3: use of videotaping by the neurological experts at the evidentiary hearing to demonstrate and explain the patient’s neurological condition to the court; 4: the extensive use of videotapes by the Schindler family to falsely demonstrate to the media and the public the patient’s “cognitive” functions; and 5: recent actions by the governor of Florida and the legislature unprecedented in American law. For this article and background memo, I will primarily focus on the medical and neurological facts of the case.
In almost every vegetative case before the courts, there almost always has been medical testimony attempting to refute the diagnosis of the vegetative state, with doctors and others arguing that the patients had some features outside of the vegetative state (e.g., Nancy Cruzan “eating bananas,” and Joelle Rosebush covering her private parts with a gown when she was not only in a permanent vegetative state but also quadriplegic). This kind of conflicting testimony first appeared in a major right to die dispute in the case of Paul Brophy, a Massachusetts fireman in a permanent vegetative state (1985), long before the minimally conscious state was established in the medical literature. (10) These medical opinions have ranged from the plausibly persuasive to the absurd, but ultimately none of them has been successful in confusing the courts. Usually trial court judges have easily recognized the deficiencies of these highly questionable medical opinions and have had little difficulty in determining the correct neurological diagnosis.
One of the notable examples of a trial court judge favoring one set of experts in neurology over another experts occurred in the Nancy Jobes case in the state of New Jersey, the second major vegetative state case in the nation (after Brophy in Massachusetts) dealing specifically with the withdrawal of artificial nutrition and hydration (the Karen Quinlan case centered on the withdrawal of the respirator, not the feeding tube). Four nationally prominent neurologists testified, two saying Ms. Jobes was in a vegetative state with no hope of recovery, while the other two testified she was not in a vegetative state. Without involving himself in the exact neurological nuances and disagreements of her clinical condition among these creditable experts, the trial court judge simply discounted the medical opinions of the latter neurologists by expressing the following opinion: “It must be noted that all of the witnesses who claimed to elicit command responses from Ms. Jobes-certain nursing home staff members as well as Dr. Ropper and Dr. Victor- believe that it is a violation of professional ethics and personal morality to withhold or withdraw nutrition and hydration from any patient, whatever that patient’s state of health and regardless of that patient’s previously expressed wishes. … I conclude that she has no cognitive function and remains permanently fixed in a vegetative state. … These witnesses who stated that Ms. Jobes was able to respond to requests or commands were not giving false testimony under oath. Their sincere opposition to the withholding of nutrition in any patient … have (sic) caused them to see signs of intelligence where no such intelligence exists. (Emphasis added; unless specifically noted otherwise, all emphases in this document will be assumed to be emphasis added by the author and not in the original) (11) In the Matter of Nancy Ellen Jobes,
Superior Court of New Jersey Chancery Division-Morris County Docket No. C-4971-85E, Judge A. Stein, April 23, 1986, pp. 8-9.
No trial court judge before and since has ever been this forthright in his or her judicial opinion on the correlation between the credibility of the experts’ medical opinions and their own personal morality, and almost every trial court judge has bent over backwards to be as fair as possible to a variety of neurological opinions on the condition of the patient.
Chronology of events
Terri Schiavo, 25, was found unconscious and gasping for air at home by husband on the early morning of February 25, 1990. She had suffered a full cardiac arrest. Defibrillation was performed seven times during initial resuscitative efforts with eventual restoration of a normal cardiac rhythm. The initial serum potassium level was 2.0, undoubtedly the cause of her cardiac arrest. Terri had a history of erratic eating habits, including probable bulimia, with a major weight loss several years before this event. In high school it has been reported that Terri went from over 200 pounds down to 110. In November 1992 Michael Schiavo won a malpractice suit against Terri’s physicians for failing to diagnose her health problems leading up to the cardiac arrest resulting directly from her eating disorder. (12-13)
Terri was in a coma for approximately one month, and then evolved into a vegetative state. Four board-certified neurologists in Florida consulting on her care (James H. Barnhill, Garcia J. Desousa, Thomas H. Harrison, and Jeffrey M. Karp) had repeatedly made a diagnosis of PVS over the years. The initial CT scan on the day of admission, February 25, 1990, was normal but further CT scans documented a progression of widespread cerebral hemisphere atrophy, eventually resulting in CT scans of 1996 and 2002 showing extreme atrophy (CT scans-1996, 2002: “diffuse encephalomalacia and infarction consistent with anoxia, hydrocephalus ex vacuo, neural stimulator present); prior to these most recent two CT scans, CT scans had been performed on February 25, 1990, February 27, 1990, and March 30, 1990, with an MRI scan on July 24, 1990.The two most recent EEG’s have demonstrated no electrical activity-on July 8, 2002: “no evidence of cerebral activity;” and October 4, 2002-“does not have any definite brain activity. However, most of the tracing is obscured by artifact from muscle and eye movement.” The clinical exams over the years were entirely consistent with diagnosis of permanent vegetative state secondary to hypoxic-ischemic encephalopathy. From the initial hospitalization in February, 1990, until the present time, there have been no significant changes in Terri’s neurological findings, and nothing in the medical records to suggest any disagreement whatsoever among Terri’s attending and consulting physicians about the underlying diagnosis and prognosis for recovery. A deep brain stimulator was placed in Terri’s brain on December 12, 1990 at request of the husband who flew with his wife to San Francisco for the procedure. This highly experimental form of medical treatment did not result in any clinical improvement in Terri’s condition. (14)
History of disagreement between Michael Schiavo and Schindler family
With respect of the history and evolution of the major disagreements between Michael Schiavo, Terri’s husband, and the Schindlers, her parents as well as her siblings, it may be worthwhile to quote from a presumptively disinterested source, Judge George Greer. In an order he filed on February 11, 2000 (In re: The Guardianship of Theresa Marie Schiavo, In the Circuit Court for Pinellas County, Florida, Probate Division File No. 90-2908GD-003), Judge Greer states: “During the period of time following the incident of February 25, 1990, the parties worked together in an attempt to provide the best care available for Terri Schiavo. On February 14, 1993, this amicable relationship between the parties was severed. … The parties have not spoken since that date.” (p. 2). The judge further noted that, “By all accounts, Mr. Schiavo has been was [sic] very motivated in pursuing the best medical care for his wife…It is undisputed that he was very aggressive with nursing home personnel to make certain she received the finest of care.” (15)
On Valentine’s day, 1993, three years after Terri had been in a permanent vegetative state, both the Schindlers and Michael Schiavo agree that Michael and his father-in-law had an ugly fight over what kind of treatment the money received from the malpractice suit would go toward, with the Schindlers advocating rigorous therapy and Michael wanting only basic care in view of her hopeless prognosis for neurological recovery, the medical opinion that Michael had received from Terri’s doctors in the first few years of her hospitalization. (16) (“With His Wife in Limbo, Husband Can’t Move On,” New York Times, p. 14, November 2, 2003, by Abby Goodnough)
Judge Greer further noted that, in 1994, when Mr. Schiavo attempted to refuse medical treatment for an infection being experienced by his wife, the Schindlers filed an action to have him removed as guardian based upon numerous allegations, including abuse. Apparently this was the first legal action filed in this case by either side, so the Schindlers and Michael Schiavo have been involved in a legal battle over the appropriate treatment for Terri for over 10 years, far longer than any other right to die case in American law. Even the Nancy Cruzan case, from the initial legal proceedings in October 1987, to the U.S. Supreme Court decision on June 25, 1990, and her subsequent death on December 26, 1990, lasted only slightly longer than 3 years (17-18) (see Long Goodbye, The Deaths of Nancy Cruzan, by William H. Colby, Hay House Inc., Carlsbad, California, 2002).
When Michael Schiavo went to court in 1998 for permission to have his wife’s feeding tube removed, the Schindlers immediately challenged him.
In Judge Greer’s order of February, 2000, he ruled that Terri Schiavo’s previous oral declarations, including “I don’t want to be kept alive on a machine,” were “reliable,” “credible,” and rose to “the level of clear and convincing evidence,” consistent with the substituted judgment standard adopted by the Florida supreme court in two separate decisions, John F Kennedy Memorial Hospital v Bludworth in 1984 and Browning in 1990. (19)
Additionally, Judge Greer found that, “beyond all doubt,” based on “overwhelming credible evidence” from the testimony of Dr. Vincent Gambone, Terri’s treating physician, and Dr. James Barnhill, a consulting neurologist, Terri was in a persistent vegetative state as defined by Florida statues Section 765.101. (20)
Evidentiary trial, October 2002
After Judge Greer made this ruling stating unequivocally that Terri was in a persistent vegetative state and found clear and convincing evidence of Terri’s wishes in this situation, the Schindlers appealed to the Florida court of appeals. As part of their appeal, the Schindler family submitted a 113-second videotape, accompanied by multiple affidavits from various health care professionals saying patient was not in a vegetative state. Because of these videotapes, and notwithstanding the previous definitive ruling by the trial court judge on Terri’s neurological condition and chances for recovery, the court of appeals ordered the trial court to conduct an extremely thorough evidentiary hearing, the most complex evidentiary process in over three decades of landmark right to die court cases. Many of these affidavits contain the completely erroneous assertion that Terri’s ability to handle her own secretions was incompatible with the vegetative state. None of these medical professionals (including internists, rehabilitationists, speech pathologists, and others) who submitted these multiple sets of affidavits over the years at the behest of the Schindlers, had ever personally examined the patient, reviewed the medical records in any detail, considered the medical opinions of the consulting neurologists, nor looked at the CT scans or EEG’s. They instead relied on the brief videotapes showing Terri apparently interacting with her parents and noting that Terri could handle her own secretions. A few of these medical professionals did go to the bedside with the Schindler family to make observations about Terri’s apparent interactions with her family but none performed a complete neurological examination. All the videotapes released by the Schindlers to the media that I have seen are not only entirely consistent with the vegetative state but also, to the trained eye of any doctor experienced in the diagnosis of the vegetative state and related conditions, are completely compatible with the fact that Terri is in a vegetative state. For example, if one looks at Terri’s eyes closely during these videotapes, it is reasonably evident that she does not sustained visual pursuit, nor visual fixation, even when the mother is directly in front of the patient and Terri apparently “smiling” at her mother. Sustained visual pursuit (visual tracking) is almost always the cardinal feature distinguishing patients in a vegetative state from those with any degree of cognitive functioning. And the first sign of evolving from the vegetative state to a higher level of cognitive functioning, e.g. the minimally conscious state, is almost invariably the presence of sustained visual pursuit on a consistent, sustained, and reproducible basis, a physical finding that Terri Schiavo has never demonstrated.
In this evidentiary hearing that took place over six days in October, 2002, six physicians testified about the neurological condition of Terri Schiavo: Victor Gambone, the primary attending physician caring for Terri Schiavo for many years; William Maxfield, a radiologist, and William M. Hammesfahr, a Florida neurologist, representing the Schindler family; Melvin Greer and Ronald Cranford, neurologists, representing Michael Schiavo, and the expert appointed by the court, Peter Bambakidis, from Cleveland, Ohio.
It is important to fully understand and appreciate two separate and distinguishable medical facts- 1) the current diagnosis (vegetative state, minimally conscious, locked-in, brain dead), and 2) the potential for neurological recovery and potential response to treatment or rehabilitation. In previous cases medical professionals have disagreed as to whether the patient was vegetative, or minimally conscious, or locked in, depending on their interpretations of the clinical findings on examination. However, in none of these other landmark cases, until Schiavo, has any medical expert seriously argued that these patients had any meaningful chance for recovery or had a reasonable chance of responding to various treatments.
At this evidentiary hearing, the trial court heard testimony from the radiologist and neurologist testifying at the behest of the parents that, not only was Terri Schiavo not in a vegetative state, but also that she had a good chance of further recovery with treatments (hyperbaric oxygen and vasodilator therapy) recommended by these physicians. The following is a sample of the completely fallacious opinions rendered about Terri’s medical condition by Drs. Maxfield and Hammesfahr. Twelve years after an hypoxic-ischemic insult, and serial CT scans showing extremely severe atrophy of the cerebral hemispheres, both doctors said there was a “chance for recovery,” with the potential for response to treatment. Dr. Maxfield testified that “abnormal brain dissolves, so what’s left [as seen in the CT scans] is “normal, functioning brain.” He further stated that the most recent CT scan shows “improvement.” They gave no published data to support their opinions on their proposed treatments of HBO and vasodilator therapy but instead presented an infomercial style approach of anecdotal cases of dramatic responses to their therapies. There are no credible articles in the peer-reviewed medical literature on HBO or vasodilator therapies as effective treatment for patients with chronic brain damage. The articles on the internet on vasodilator therapy, including those by Dr. Hammesfahr, are extremely poorly written, and only a cursory examination of these articles would tell any medical professional that they could not have possibly been peer-reviewed. (21)
At this evidentiary hearing, the doctors were not allowed to comment on the testimony of the other five physicians, However, at one point, the attorney representing the parents of Terri Schiavo, Patricia Anderson, asked for my opinion after hearing some of Dr. Hammesfahr’s views. My reply was, “It makes me ashamed of the medical profession.” After Ms. Anderson strenuously objected to my answer as “non-responsive,” the judge replied, “Well, it seems, Ms. Anderson, you asked Dr. Cranford a question, and he answered it.” (22)
Judge George Greer’s decision from evidentiary hearing in October 2002
After these six days of testimony at this evidentiary hearing, allowing one day for each of the five experts and Terri’s attending physician, Judge Greer rendered his findings of fact on the neurological condition of Terri Schiavo, the possible beneficial effects of specific medical treatments for the patient, and the potential for rehabilitation Of the 8 neurologists either consulting directly on the care of Terri Schiavo (4), or testifying at this hearing in October 2002 (4), only one, Dr. William Hammesfahr, is not a member of the American Academy of Neurology according to 2003-2004 membership directory.
Here are some representative quotes from the trial court judge (George W. Greer, Circuit Court, Pinellas County, Florida, File No. 90-2908-GD-003) “The court also received into evidence numerous exhibits including copies of published medical articles, copies of summaries of published medical articles, CT scans and videos of medical examinations” (p. 2)… “The court also had the opportunity to observe the witnesses when they testified, to note body language, pauses, inflections and other non-verbal factors utilized in determining credibility which would not appear in a transcript of these proceedings.” (p. 2) (all emphases added) (23)
“These two sets of opinion had little in common.” (p. 4) “Those who felt that she was in a persistent vegetative state felt that her actions were neither consistent nor reproducible but rather random reflexes in response to stimuli.” (a central point and quoting directly from Multi-society PVS Task Force report, a very encouraging indication, and a rejection of the blown-up picture of Terri smiling, but not looking, at her mother-characterized by myself in court as “cheap sensationalism) (p. 4)
With respect to the judge’s opinion of the credibility of the medical experts designated by the Schindler family, he said: “Dr. Hammesfahr testified … he gave 105 commands … Mrs. Schindler gave an additional 6 commands … he asked her 61 questions and Mrs. Schindler, at his direction, asked her an additional 11 questions. [total 183]. The court saw few actions that could be considered responsive to either these commands or those questions. While Dr. Hammesfahr testified that she squeezed his finger on command, the video would not appear to support that and his reaction on the video likewise would not appear to support that testimony.” (p. 5) (24)
“…It is clear that this therapy (vasodilatation therapy) is not recognized in the medical community. …What undermines his [Hammesfahr] credibility is that he does not present to this court any evidence… he offered no names, no case studies, no videos, and no tests (sic) results to support his claim that he had success in all but one of them. If his therapy is as effective as he would lead this court to believe, it is inconceivable that he would not produce clinical results of these patients that he has treated. And surely the medical literature would be replete with this new, now patented, procedure. Yet, he has only published one article and that was in 1995 involving some 63 patients, 60% of whom were suffering from whiplash (p. 7). (For a review of Dr. Hammesfahr’s use of transcranial Doppler testing and vasodilator therapy, see the comments by Dr. Steven Novella on www.quackwatch.com, most recent revision February 14, 2000). (25-26)
“It is clear from the evidence that these therapies [hyperbaric oxygen and vasodilatation] are experimental insofar as the medical community is concerned with regard to patients like Terry (sic) Schiavo which is borne out by the total absence of supporting case studies or medical literature. … The other doctors, by contrast, all testified there was no treatment available to improve her quality of life. They were also able to credibly testify that neither hyperbaric therapy nor vasodilatation therapy was an effective treatment for this sort of injury.” (p. 8) (27)
…The court finds that the credible evidence overwhelmingly supports the view that Terry (sic) Schiavo remains in a vegetative state.” (p. 6). (28)
In my own personal experience in fifteen landmark right to die courtroom cases in the United States over a span of three decades, there has never been such unbelievably false and misleading medical testimony as in Schiavo, including the retired radiologist, Dr. Maxfield, whose specialty is the use of hyperbaric oxygen treatment, and the Florida neurologist, Dr. Hammesfahr, whose specialty is the use of vasodilator therapy in a wide variety of neurological diseases. Fortunately, the videotapes of these examinations shown at trial completely undermined these two experts’ opinions.
The Schindler family, Pat Anderson, the Schindler lawyer, various vitalist groups, and the two physicians testifying at trial on behalf of the Schindlers, as well as numerous health care professionals signing affidavits who never examined Terri but instead relied on the short videotapes, have consistently maintained the following facts-Terri Schiavo is aware, responsive, follows commands, smiles in response to the family, and has emotions; the videotapes are important because they show that “Terri is a person,” and that she can respond, follow commands, smile in response to her mother, and visually track objects placed in front of her; she will improve with appropriate treatment and rehabilitation; she has the ability to swallow; the reason she can’t swallow well now is because she has been denied appropriate medical treatment for years. However, the trial court judge and the appeals court justices have stated that Terri Schiavo is in a permanent vegetative state and that no treatment is available to restore her neurological functioning, consistent with the opinions of four neurologists directly involved in the care of Terri Schiavo over 15 years, and the three neurologists testifying at trial (two selected by Michael Schiavo, and the other selected by the trial court judge when Michael Schiavo and the Schindlers were unable to agree on a neutral court-appointed medical expert).
These presumed neurological facts and assertions by the Schindler family, their lawyer, Pat Anderson, and others about Terri’s neurological condition are all completely and categorically false, with one exception. Patients in a vegetative state usually retain an intact swallowing reflex and thus can swallow to some degree in an involuntary, reflex fashion. Swallowing tests performed on Terri Schiavo in 1990, 1991, and 1992 all showed severe oropharyngeal dysphagia, compatible with the vegetative state. No further swallowing tests were ever performed again in her subsequent clinical course, since Terri Schiavo never improved, and there was no valid reason for believing these swallowing tests would be any different today than they were over 10 years ago. Thus, Terri Schiavo does have the ability to swallow, like most other patients in a vegetative state, but only in a reflex fashion. The majority of adult patients in a permanent vegetative state, like Terri Schiavo, are given nutrition and hydration by a PEG tube placed in the stomach through the abdominal wall. This form of medical treatment is the safest and most effective way of supplying long term nutrition and hydration to an unconscious patient. (29)
It is possible (but highly unlikely) that, with a great deal of attention and care, and an understanding of how to optimize swallowing by using the involuntary swallowing reflex, Terri’s nutritional and hydration needs could be maintained by the oral route (as is the case in many children in a permanent vegetative state, where parents and health care professionals spend many hours at the bedside feeding these children by mouth by utilizing the involuntary swallowing reflex). But such an undertaking is medically inadvisable, as it would greatly increase the risk of aspiration pneumonia and death.
The overwhelming fact is that, whether Terri is fed via a PEG tube or fed orally, she is still in a permanent vegetative state, and the manner of feeding her will not result in any change in her clinical condition, except she would probably die much sooner were attempts made to feed her orally. So further swallowing tests would be totally meaningless in terms of the ultimate outcome of Terri’s neurological condition and state of consciousness.
Florida court of appeals decision
In its ruling in June 6, 2003, the Florida court of appeals concluded (in Schiavo IV, because this court had already addressed this case on three previous occasions) that the trial court had complied with the instructions of the higher court in terms of the elaborate evidentiary process to be followed.
Part of the reason why the court of appeals ordered a detailed evidentiary hearing on the medical facts of the case was the affidavits presented to the higher court by the Schindler family of doctors and other health care professionals stating under oath that new treatments could possibly improve Terri’s level of functioning. As the appeals court noted, “…Although we have expressed some lay skepticism about the new affidavits, the Schindlers now have presented some evidence, in the form of the affidavit of Dr. [Fred] Webber, of such a potential new treatment.” Later, the court “anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo’s speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court’s decision to remand the case, made no further appearance in these proceedings.” (30)
This type of unprofessional affidavits and court testimony by the physicians and medical professionals is typical of the vast majority of medical experts and their opinions retained by the Schindler family, e.g. the opinions expressed by Judge Greer on the credibility of Dr. Maxfield and especially Dr. Hammesfahr. (See affidavits from Dr. Fred Webber, June 1, 2001; Dr. Jacob Green, May 30, 2001; Dr. William Scott Russell, May 30, 2002; and psychologist Alexander T. Gimon, May 29, 2001, as well as numerous other affidavits signed by doctors and other health care professionals in Florida and around the United States). Reflecting back on Judge George Greer’s original ruling in February 2000 that Terri was in a persistent vegetative state “beyond all doubt,” it seems readily apparent that the Florida court of appeals was substantially, but fortunately only temporarily, misled by these affidavits based on the videotapes.
Even though the court of appeals could have affirmed the trial court opinion on procedural grounds (ensuring that the guidelines for the evidentiary hearing were properly executed) and gone no further, the court did go further and ruled on the factual issues as well. “Despite our decision that the appropriate standard of review is abuse of discretion [by Judge Greer], 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 transcripts. We have concluded that, if we were called upon to review the guardianship’s decision de novo, we would still affirm it.” (31)
Why have the three judges on the court of appeals bent over backwards to listen carefully to the concerns of the Schindlers over these many years, including ordering a full scale evidentiary hearing on Terri’s medical condition after all the other legal issues had been fully litigated, and the trial court judge had ruled in February 2000 that Terri Schiavo was in a persistent vegetative state “beyond all doubt”? Besides the obvious and to some extent understandable motivations of judges being afraid of making mistakes (especially on the medical diagnosis), their natural tendency to err on the side of life (rather than erring on the side of privacy), and their appropriate concern about due process in cases of a highly controversial nature, a partial answer to this question has been supplied very directly by the judges themselves. By revealing a human side of their decision making process (something that many judges are not usually willing to admit), they explicitly reflect their great sympathy and empathy toward the parents of Terri Schiavo, “The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who has raised and nurtured a child since conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such faith.” (p. 10). In other words, the judges, while clearly sympathetic to the feelings and concerns of the Schindlers, nevertheless based their decisions on the facts and the law. (32)
The irony of this case is that videotapes have been used for entirely two purposes, and both have been highly successful. The first use, by the medical experts examining Terri, showing the trial court (and even the court of appeals) the validity of their observations and conclusions about Terri’s condition, worked extremely well. The videotapes, when properly explained to the trial court and used by these experts as a highly effective means of educating the judge on the complexities of the diagnosis of the vegetative state, strongly confirmed the validity of the observations and conclusions of the experts testifying the Terri was indeed in a permanent vegetative state with no meaningful interactions with others or the environment. At the same time, the tapes made by Dr. Maxfield and Hammesfahr led to Judge Greer’s completely discrediting the observations of these experts opining that Terri was demonstrating cognitive functioning to some extent, e.g. Judge Greer, by his own count, disagreeing explicitly with the observations of Dr. Hammesfahr on 183 occasions.
The second use of the videotapes (released by the Schindler family and the vitalists) was to mislead much of the media and public into believing that Terri could meaningfully and cognitively interact with her parents and thus was not in a vegetative state. For those members of the unsophisticated and uneducated public and media who have never seen a patient like this and thus had no way of recognizing the typical features of someone in a vegetative state, this strategy of misinformation has also apparently been highly successful.
Further proceedings and current state of case
In late August, 2003, the family had brought forward evidence after yet another review of the medical records indicating that patient may have been strangled by the husband, thus requesting appointment of a guardian ad litem to represent patient during further judicial proceedings. The court denied this motion. The governor of Florida, Jeb Bush, after receiving 27,000 e-mails (characterized by some observers as a “high tech lynch mob”), wrote a letter to Judge George Greer requesting further judicial proceedings to safeguard the rights of Terri Schiavo. The Schindler family brought forward yet another set of affidavits from various health care professionals expressing their views that Terri Schiavo should be administered a new round of swallowing studies to determine if she has the ability to take fluids and nutrition by mouth.
Six days after Terri’s feeding tube was removed, the Florida legislature passed a law and immediately signed by the governor all in one day, which had 4 components-for a person in a persistent vegetative state who has no living will, whose feeding tube has already been removed, and where a family member objects, the feeding tube will be restarted (note: this is not the exact wording of the law but my interpretation of the essence of the law). (33) On that same evening, Terri Schiavo was removed from her current facility and transferred under police escort to a Clearwater hospital where a feeding tube was reinserted, and artificial means of nutrition and hydration restarted.
In late October 2003 Michael Schiavo through his attorney challenged the actions of the governor and legislature on the constitutionality of the new law. The new law essentially overrules all the decisions of the Florida courts where every major legal source of dispute had been fully litigated, and the courts had previously rendered definitive decisions in favor of Michael Schiavo in terms of the appropriate surrogate decision maker, the wishes of Terri Schiavo according to a clear and convincing evidence standard, and the medical condition of the patient. In 2004 the Florida Supreme Court unanimously ruled that the Florida law enacted by the legislature and governor was unconstitutional. (34)
Concluding comments
In any case of a severely brain damaged patient involving extensive, prolonged, and heated litigation, especially when the major disputants are the immediate family, the question always arises, who really suffers the most? Not the patient in the vegetative state, who is unconscious and thus incapable of any suffering. Perhaps the husband whose wishes are being seriously undermined and who almost certainly does know what his wife would want, or what most of us would want for ourselves, in this situation. But, even though I disagree with their views, a strong case can be made that the ones suffering the most are Terri’s parents and other family members. Outside doctors and medical advisors have cruelly deceived them into believing that Terri will improve, or has a chance for improvement with various treatments advocated by these individual doctors. So this family, cruelly misled by blatant distortions of fact and thoroughly unprofessional advice, believes that letting Terri die now takes away any opportunity, any slim chance, that she will receive “appropriate” treatment in order to recover. They feel like they are the last chance that Terri will ever have, and they are acting according to these strong (but unfortunately terribly mistaken and ill informed) beliefs.
The Schiavo case provides powerful and compelling evidence of the importance of videotaping of the neurological examination. In future landmark right to die cases, especially when there is a serious dispute about the actual neurological condition, videotaped neurological examinations should be considered an essential element of expert medical testimony at trial. The judge’s assessment of the conflict between the trial testimony of medical experts retained by the Schindlers, and the actions seen on the tape itself, should serve as a compelling example of the value of videotaping. Also the probative weight of the brief video of Terri “interacting” with her parents, the accompanying affidavits of numerous physicians, and the still photos of the daughter apparently “smiling” at her mother, should stand in contrast to the videos of the examinations performed by the neurological experts which were shown at trial. The neurological examinations performed by Drs. Bambakidis, Greer (Dr. Greer did not have his examination videotaped), and Cranford each lasted between 25 minutes and 1 hour. The neurological examination by Dr. Hammesfahr lasted over 3 hours, but, when Judge Greer compared the videotape of his neurological examination with his testimony and explanations in court, the judge found no credibility in Dr. Hammesfahr’s neurological assessment of Terri Schiavo’s condition. A “neurological examination” by Dr. Maxfield, the radiologist, essentially never occurred.
What are the lessons to be learned from the Schiavo case? 1) When there is extreme disagreement and bitter acrimony between family and husband, it is extremely difficult to resolve disputes in a highly adversarial atmosphere, rather than consensual attempts to resolve disputes advocated by hospital ethics committees. Every possible effort should be made to resolve disputes among immediate family outside of a courtroom setting. 2) Prolonged legal maneuvers and unusual, desperate legal strategies by the Schindlers and their supporters, have caused the Florida court system to deteriorate into a state of inaction and impotence; 3) This case illustrates the crucial significance of the correct medical diagnosis and also exemplifies the critical importance of differentiating between diagnosis of the neurological condition (vegetative state) versus the prognosis for recovery and potential response to new treatments; 4) This case demonstrates convincingly the value of videotaping to accurately explain to the court the neurological condition, as well as the unfortunate success of misleading the media and public on the same condition; 5) The credibility of experts and their testimony can usually be determined by a trial court judge; credibility is not usually based on testimony of experts who insult the intelligence of the court, e.g. judge appreciated sincerity of the court appointed expert who “agonized” over his diagnosis. Despite strong views of medical experts testifying for the Schindler family, the trial court judge simply did not see what these experts said was there; 6) The hastily passed and blatantly unconstitutional law approved by the governor and state legislature completely usurped the role of the judicial system in Florida, an action unprecedented in the history of American law and a complete disregard for the principle of separation of powers of the three branches of government".
Duke
posted by Duke of DeLand @ 3/18/2005 08:51:00 AM
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