Schiavo Thread Part the Third

[Ned]

Originally posted by shawnmmcc
Ned doesn't understand the concept of - pause for effect - common sense applying in a court of law, especially when it can be applied to the case in question.

Shawn, the knock on Greer is that he is said to be conservative judge who follows the law and not his heart.

[Boris Godunov]

Originally posted by Ned
The Nurse described Terri as able to comminicate at a minimal level, including greating visitors at the nurse's station by saying Hi.

The doctor's testimony condemned Terri. The nurse's testimony was never heard.

This was already addressed, Ned. The court did consider the Nurse's testimony, it was dismissed as not credible.

At one time, Terri could swallow.

Evidence, please. Of course, you haven't provided any evidence for the bull**** so far, so why do I ask?

There are doctors who say she could be taught to eat.

Not any of the independent experts who actually examined her. And was any of those doctors the quack I exposed earlier that you were relying on before?

What we have here is a miscarriage of justice.

No, what we have is your continual ignorance of facts, regurgitation of false claims by the family and their quack doctor and a complete unwillingness on your part to consider anything other than your prejudiced opinion.

[Ned]

Originally posted by Dissident


conservatives are now calling on Jeb Bush to resign.

I agree that the reason the RR is angry at both Bush's is not that they intervened, it is that they did not do enough.

[Boris Godunov]

Originally posted by Ned
I have seen the questions those polled were asked. They misrepresented the facts. So, I would not be so sure the public is so pro-death as you believe.

This, of course, is right-wing propaganda as well that you're regurgitating without question.

http://www.mysterypollster.com/main/2005/03/schaivo_push_po.html

The same results have been obtained from different polls with different questions: ABC, CBS, Gallup, etc. I suppose you think they're all in a conspiracy to trick the stupid American public with biased questions?

[Drake Tungsten]

Clearly the result in this case should be for the parents to take custody of Terri unless Terri herself left an unambiguous message to the contrary, as in the form of a notarized writing. All we have is the testimony of the Schiavos, who have an adverse financial and personal interest in the continued existence of Terri.

What we have here is a miscarriage of justice.

I wouldn't call it a miscarriage of justice, as what has happened is clearly permissible under Florida law. It is arguably immoral though and obviously makes many people upset at how such a tragic result can be arrived at via the processes of the judicial system.

[Ned]

Originally posted by Boris Godunov


No, what we have is your continual ignorance of facts, regurgitation of false claims by the family and their quack doctor and a complete unwillingness on your part to consider anything other than your prejudiced opinion.

Boris, how am I prejudiced? I have been careful to say what I have actually heard from eyewitnesses. Now, I have repeatedly asked when I have made these reports here as to why nurses, acquaintances of the Schiavos and Terri's co-workers would lie. They apparently have no adverse financial or personal interests as certainly do the Schiavos. I would hope anyone would recognized the adverse interests of the Schiavos and would be willing to discount anything they said unless it was corroborted in some fashion. But, as to the nurses, co-workers and acquaintances, why in the world would they lie?

Now, if you have actually practiced law, you would know about judicial tyranny first hand. Judges craft decisions carefully to support the outcomes they want. They cite facts and arguments that support their decision and ignore or discredit the opposing facts and arguments. A case can be very close, but you would not be able to tell that from the judge's opinion.

Judges are sustained on appeal about 80% of the time. The appellate judges conduct the same kind of judicial tryanny as do the lower court judges. Only, there are three of them and occaisionally a judge will dissent, as they did in the Schiavo case at the Federal level, and give you the other side of the story.

That is why we have juries in this country to restrain judicial tryanny. Too bad we did not have a jury in this case. I would hope that all such future cases be tried to juries as are death cases in criminal law, and for the same reason.

Judge Greer should have removed himself from this case long ago. I think it is manifest that he stopped listening to the Schindler's some time ago and has instead become and advocate in this case. When I heard Mr. Schindler describe a judiciary that was simply ignoring facts and evidence that did not support what they wanted to do, I believed him as I know this is commonplace.

[GePap]

Today on ABC news they had a story about the case of Hugh Finn: it is earily familiar to the Schiavo case. Here is what one columnist thinks.

http://www.roanoke.com/editorials/commentary%5C20802.html

Gilmore fumbled in the Hugh Finn tragedy

Chip Woodrum

±

Woodrum was chairman in 1999 of the House of Delegates Claims Committee that considered a claims bill to reimburse the Finn family the legal fees and costs they incurred as a result of Gov. Jim Gilmore's intervention in the process. The bill failed on a party line vote.

Former Gov. Jim Gilmore was quoted in The Washington Post on March 23 as saying he would have followed the same course today in the matter of Hugh Finn. He described his actions as "trying to take a time-out." He added, "that became lost, because it became a political football."

Really? And who made it a "political football"?

The tragic case of Terri Schiavo does bring to mind the equally tragic situation surrounding the death of Hugh Finn and the egregious acts of former Gov. Gilmore.

Hugh Finn, a TV news reporter, was catastrophically injured in an automobile accident in March 1995 that ruptured his aorta and deprived his brain of oxygen. As a result, he was unable to eat or care for himself. He was diagnosed by numerous doctors as being in a persistent vegetative state with no hope of improvement and no chance of recovery.

After reporting on a similar case in Kentucky, Finn had told his wife, Michele, and a friend that he would never wish to live in such a condition.

Despite this, Michele sought to prolong Hugh's life for more than three years. A feeding tube was inserted and he was maintained in a nursing home in Manassas. Finally, in June 1998, she decided to remove the feeding tube, which was the only thing preserving his life.

Under Virginia law, food and water may be withheld from persons who are in a persistent vegetative state. When she informed Hugh's family of this, a split occurred and Hugh's brother, John Finn, went to court to prevent the removal of the feeding tube.

Public attention focused on the family's agonizing decisions. Various state officials volunteered their opinions on the proper course of action for the family. Articles were written and vigils were held. An independent examination of Hugh Finn was undertaken by a neurologist retained by the state, which confirmed the previous findings of Hugh's persistent vegetative state.

After hearing the evidence and the argument, Judge Frank Hoss of the Circuit Court of Prince William County ruled that Michele would remain as her husband's guardian and that she had the right to have the tube removed. The judge gave John Finn until Sept. 30, 1998, to appeal to the Supreme Court of Virginia.

On Sept. 28, the Finn family announced that it had dropped it opposition to the removal of the feeding tube. There would be no appeal. It appeared that a tragic situation was coming to a calm and peaceful end.

However, those who had hope for a peaceful end had not reckoned on the boundless opportunism of Gov. Jim Gilmore. Sensing an opportunity for publicity and to ingratiate himself with certain elements, Gilmore entered the situation with legal guns blazing.

The governor filed a petition with the court minutes before the deadline. After a midnight hearing, Judge Hoss rejected the governor's arguments and the family had the feeding tube removed a few minutes later.

Having lost his case in court, Gov. Gilmore sought to win by press conference, and announced that he would appeal to the Supreme Court of Virginia to have the feeding tube reinserted. The appeal was filed on Oct. 2, and three hours later, the Supreme Court unanimously rejected the appeal, holding that withholding food did not amount to "mercy killing."

Hugh Finn died eight days after the feeding tube was removed.

The matter didn't rest there, however. In a subsequent hearing, Judge Hoss held that the state should reimburse Michele Finn for legal costs because Gilmore's efforts to intervene violated the state's prohibition on frivolous lawsuits.

Judge Hoss held that Gilmore's "position was not well-grounded or warranted by existing law." The judge also noted that no new evidence to support the governor's position was presented, adding the law did not "require the court to listen to the same evidence again."

At a time that a family should have been permitted to grieve privately and to reach closure, they were victimized by overreaching and intrusive government action.

But perhaps the most eloquent valedictory on this episode was made by Bishop Walter F. Sullivan. Writing in The Catholic Virginian of Oct. 19, 1998, Bishop Sullivan noted that the debate jumped from "morality to politics when state officials became involved." (So much for Gilmore's "sincerity.") But that wasn't all.

In discussing the medical and ethical situation confronted by the Finn family, Bishop Sullivan noted that "persistent vegetative state" was an acceptable diagnostic category and added, "Withdrawing disproportionate medical procedures is not the same as assisted suicide. It is not an act of killing. It simply allows the illness to take its natural course."

So, numerous doctors, a circuit judge, seven justices of the Supreme Court of Virginia and the Catholic Bishop of the Archdiocese of Richmond concurred that Gov. Gilmore's position had no validity in medicine, fact, law, ethics or religion.

Bishop Sullivan also noted, "If the matter had not been dragged into the political arena, perhaps the family could have had the peace and tranquility they needed to face the frailty and mortality of one whom they all dearly loved."

Amen to that.

[Ned]

Originally posted by Boris Godunov


This, of course, is right-wing propaganda as well that you're regurgitating without question.

http://www.mysterypollster.com/main/2005/03/schaivo_push_po.html

The same results have been obtained from different polls with different questions: ABC, CBS, Gallup, etc. I suppose you think they're all in a conspiracy to trick the stupid American public with biased questions?

Wow, those questions are even more biased than I initially believed. They state the conclusion that Terri is brain dead as IF that issue were not in controversy. It is hotly disputed by the Shindlers.

Also the link itself included a big LIE. It states the Supremes in "Cruzan" held there was no legal difference between a "feeding tube" and "life support" when one is determing the wishes of the patient. In fact, it held the OPPOSITE as it sustained the holding of the Supreme Court of Missouri in this passage:

"The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. "

Thus, Nancy Cruzan's words that she would not was to be sustained as a vegetable did not address the case where she would have to be deliberately killed by withdrawing food and water.

The case of Terri Schiavo is not different in kind to the case of Nancy Cruzan. But the poll question is wholly misleading as it implies that Terri can only be sustained by artificial means, and to the Supremes in Cruzan, food and water delivered by a tube were not such artificial means.

[Ned]

Originally posted by Drake Tungsten

Clearly the result in this case should be for the parents to take custody of Terri unless Terri herself left an unambiguous message to the contrary, as in the form of a notarized writing. All we have is the testimony of the Schiavos, who have an adverse financial and personal interest in the continued existence of Terri.

What we have here is a miscarriage of justice.

I wouldn't call it a miscarriage of justice, as what has happened is clearly permissible under Florida law. It is arguably immoral though and obviously makes many people upset at how such a tragic result can be arrived at via the processes of the judicial system.

Drake, Judges are human being and can be biased. They are often removed from cases for this reason. It is a wonder why the Shindlers did not long ago ask for Greer to be removed.

Also, the facts in this case should have been tried to a jury. I would have been much more comfortable with the result if the result were ordained by a jury rather than by a biased judge.

[Ned]

Boris, the Hugh Finn case is close to this, but the facts do not seem to include a strong disagreement on the issue of PVS or Hugh's wishes, both of which are hotly disputed in this case.

[GePap]

Yes, the Supreme Court upheld the Missouri Supreme Court's decision, BUT:

Nancy Cruzan

Cruzan v. Director, Missouri Department of Health, et al, 497 U.S. 261; 110 S. Ct. 2841; 111 L. Ed. 2d 224; 1990 U.S. Lexis

In January 1983, twenty-five-year old Nancy Cruzan lost control of her car as she traveled down a Missouri road. The car overturned, and she was discovered, lying face down in a ditch, without detectable respiratory or cardiac function. Emergency medical technicians were able to restore her breathing and heartbeat, and she was transported to a hospital in an unconscious state. A neurosurgeon there diagnosed her as having sustained probable brain damage, compounded by significant oxygen deprivation. The estimated length of the period without oxygen was twelve to fourteen minutes. (Permanent brain damage generally results after six minutes without oxygen.) Cruzan remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further her recovery, surgeons implanted a feeding and hydration tube with the consent of her then husband. In October 1983, she was admitted to a state hospital. Subsequent rehabilitative efforts proved unsuccessful. It became apparent that she had virtually no chance of regaining her mental faculties, and her parents—who had been appointed as her coguardians—asked the hospital to terminate the medically assisted nutrition and hydration procedures. The hospital refused to honor the request without court approval.

The Cruzans then filed a declaratory judgment action in a Missouri trial court, in which they sought judicial authorization of their request. A guardian ad litem was appointed for Nancy. The trial court, following a hearing, entered an order directing the hospital to follow the parent's instructions, based upon its findings on (1) the permanent and irreversible damage that she had suffered as a result of prolonged oxygen deprivation; (2) its belief that a person in Cruzan's condition had a fundamental right under the Missouri and Federal Constitutions to refuse or direct the withdrawal of "death prolonging procedures"; and (3) her expressed thoughts at age twenty-five, in somewhat serious conversation with her housemate, that if sick or injured, she would not wish to continue her life unless she could live at least halfway normally, suggested that she would not wish to continue on with her nutrition and hydration given her present condition.

Both the state and the guardian ad litem appealed. The Supreme Court of Missouri, reversing the lower court, expressed the view that (1) although Cruzan was in a "persistent vegetative state," she was neither dead within the meaning of Missouri's statutory definition of death nor terminally ill; (2) Cruzan's right to refuse treatment—whether such right proceeded from a constitutional right of privacy or a common-law right to refuse treatment—did not outweigh Missouri's strong policy favoring the preservation of life, as embodied in the Missouri living will statute; (3) her conversation with her housemate was unreliable for the purpose of determining her intent, and thus insufficient to support the parents' claim to exercise substituted judgment on her behalf; and (4) no person could assume the choice of terminating medical treatment for an incompetent person in the absence of either the formalities required under the living will statute or "clear and convincing, inherently reliable evidence," which was absent in Cruzan's case.

The United States Supreme Court upheld that ruling. It found that due process was not violated by the Missouri requirement that an incompetent person's wishes in regard to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. In the end, however, further witnesses satisfied Missouri courts that such clear and convincing evidence of her wishes did exist, and medically assisted nutrition and hydration were removed in December of 1990. Cruzan died two weeks later. Missouri now allows health care directives (though not living wills) to instruct that medically assisted nutrition and hydration be removed after a diagnosis of permanent or persistent vegetative state has been made. (See Withholding and Withdrawing Treatment, the Principle of Respect for Autonomy, and Surrogate Decision Making.)

In the end, clear and compelling evidence was provided, and Cruzan was allowed to die.

The Cruzan case shows another bit thought- probate rights are STATE rights- under the Florida statue, Clear and convincing evidence of her whish to die was accepted, and no higher court has ever overturned that finding of fact.

Yes, Cruzan gives us a great example for this case: what is happening to Schiavo now is what happened to Cruzan eventually.

[GePap]

Originally posted by Ned
Boris, the Hugh Finn case is close to this, but the facts do not seem to include a strong disagreement on the issue of PVS or Hugh's wishes, both of which are hotly disputed in this case.

Boris did not post that Neddy.

[GePap]

A couple more PVS cases:

Sammy Linares

On August 2, 1988, six-month-old Sammy Linares bit into an inflated balloon and inhaled a portion of the toy when it burst. His upper airway was obstructed, resulting in respiratory failure and cardiac arrest. Sammy's father, Rudy, ran with him to a nearby fire station seeking help, and the emergency medical squad rushed the baby to a neighborhood hospital. Sammy had no vital signs for about 20 minutes, but a normal cardiac rhythm was established, and he was transferred to Presbyterian-St. Luke's Medical Center in Chicago. Life support systems were maintained, though according to standard practice in emergency situations, Sammy's parents had not been asked to consent to the placement of the ventilator. Later, after he was diagnosed as being in a persistent vegetative state, however, Mr. And Mrs. Linares requested that their son be removed from life support. His physicians, acting upon the advice of hospital attorneys, told them that life support could not be removed unless the family obtained a court order justifying such an action.

Rudy was legally unsophisticated, however, and the only option he felt he had was to disconnect the baby from the ventilator himself. Alarms brought medical personnel, who reconnected the child to the vent. One of the security guards told Rudy that in order to be successful in disconnecting his son, next time he'd "have to bring a gun." On April 26, 1989, hearing a message on his answering machine that his baby was being moved to a long-term care facility the next day, a disconsolate Rudy again disconnected the ventilator. This time he held a gun to the little boy's head until he died, cradled in his father's arms. Rudy then laid down his weapon and was taken into custody. He was charged with first degree murder and assault with a deadly weapon, but the Grand Jury refused to indict, and he eventually pled guilty only to the misdemeanor charge of unlawful use of a weapon. He received a one-year discharged sentence, and served no time. In a provocative and sympathetic move, the medical examiner listed the date of death on Sammy's death certificate as the date on which he choked and was initially brought to the hospital—nine months before he was removed from the ventilator.

A great deal of legal and popular turmoil resulted from publicity surrounding this case, which eventually led to the passing of a bill by the legislature of the State of Illinois, allowing life support to be withdrawn from an incapacitated person at the request of his or her surrogate and without a court order. The hospital also acknowledged on its own an ethical responsibility to assist its patients and their families in finding legal assistance, in order to avoid such instances in the future.

and

Helen Wanglie

In re the conservatorship of Helga M. Wanglie, No. PX-91-283, District Probate Division, 4th Judicial district of the County of Hennepin, State of Minnesota (1993)

As in the case of Catherine Gilgunn, the case of Helen Wanglie is often misrepresented as one founded on the issue of futility. In reality, it addresses concerns about surrogate decision makers. Mrs. Wanglie, an eighty-seven-year-old woman, fell and fractured her hip in 1989. Breathing difficulties occurred after surgery, and she was placed on a ventilator. Soon after, she suffered a cardiac arrest and was resuscitated, but she had suffered severe and irreversible brain damage. In a permanent vegetative state, she remained dependent on the ventilator and fed though a gastrostomy tube surgically implanted in her stomach. The doctors sought to end this technological intervention, since they felt that it was no longer reasonable for a person in her condition. Her husband disagreed, arguing that only God had the right to end her life, and that she would want to be kept alive by any means. The hospital asked the courts to assign a guardian for Mrs. Wanglie, but the judge ruled in Mr. Wanglie's favor, finding that he was "the most suitable and best qualified person" to serve in that capacity. The question of whether the treatment being given was appropriate or futile was neither asked nor addressed.

And the link also speaks about a PVS state:

http://www.sclhsc.org/mission_vision_values/ethics/pvs.asp

INteresting to note that most of the time, the primacy of a family choice dominates.

[Ned]

Also, in the Hugh article, the statement of Catholic doctrine is not correct. A feeding tube may not be withdrawn once inserted unless a new condition causes a substantial change for the worse in the patient such that the former circumstances no longer fairly apply. Also the church makes major distinctions between feeding tubes and "life support systems" such as artificial resparators and the like. The latter is considered to be "artificial" and may be withdrawn.

[Ned]

Che, here is a link to the evidence of a broken back and leg that Judge Greer refused to hold a hearing about as he said it had no bearing on the case.

(Bull.)

http://abstractappeal.com/schiavo/trialctorder11-02-scan.pdf