Why isn't Terri Shiavo's husband on trial?

If she feels nothing, how is it cruel?

Yes, the DPOA is a very powerful document. Whether it overrides a pre existing living will might depend on the circumstances...off the top of my head, I would guess that the later document would control.

 

I agree 100%. The morphine is the humane thing to do. Here it isdone as well. Simply disconecting her from the machine *seems* to be ..... I don´t know..... a bit cruel.

Regards

 

From the LA and NY Times:

"...Comas are usually considered to be a short-term situation. After a few weeks or months, the situation is usually resolved with the coma being reversed or the patient dying.

A persistent vegetative state is something different, "sort of like being in an awake coma", said Dr David Goldstein, of the Keck School of Medicine at the University of Southern California. The patients' eyes are open, they have sleep-wake cycles, and it often appears that they are interacting with visitors, which makes it very hard on families.

The brain of such patients is functioning only at a very rudimentary level, said Dr Kenneth Iserson, of the University of Arizona Health Sciences Centre. They cannot feel pain, express themselves or receive communication.

They may even have grimaces or smiles or other facial movements that look like they are reflecting emotions, but "there really isn't a significant relationship with the outside world", Goldstein said.

Keane said the longer the state persists, "the less likely they are to come out of it". Schiavo has been in this condition for 15 years "and it is very, very unlikely she would wake up".

Once Schiavo's feeding tube has been removed, changes in her condition will be slow to occur and barely perceptible at first. In the first couple of days, she may - or may not - feel some pangs of hunger or thirst. "Most patients don't seem to give any outward evidence that they are in pain," Goldstein said.

After a couple of days, her kidneys will begin to fail, releasing toxins into her blood stream that will anesthetise her body. Soon after, she will lapse into a coma. Eventually, she will stop breathing. The whole process may take from one to two weeks.

"This is not a cruel procedure," Goldstein said. "It is unlikely that [she] will feel pain in any way that we as sapient people will identify. Many family members think it is a very comforting procedure ... because this is not the way we think we want to live." "

I think like any parents, Terri's are hanging on the fact that a doctor saying "very, very unlikely she would wake up" means "yes" when in reality that doctor is really saying "no".

Regardless of the situation and outcome I think that any legislators who rush back to pass laws should first spend a week (or two) with her first and not just watch a carefully-edited video.

 

Your point is well taken, that if she is feeling anything then giving her water or ice chips would just prolong her agony. But "best interest" only applies if in the eye of the beholder her best interest is to die as soon as possible. According to her parents that is not in her best interest, and denying them the opportunity to offer simple creature comfort is certainly not in their best interests.

Imagine if they continue to obey the courts and the room guard and never give her a single ice chip. She will most certainly die of dehydration, and one would imagine they will feel awful for the rest of their lives for obeying those rules. Parents second-guess themselves frequently, in situations far less serious. It's reasonable to imagine any parent thinking, after having a child die in such a situation, "Why couldn't I find a way to give her some ice chips? What would they have done, slapped cuffs on me and dragged me to jail? So what if they did? Instead I stood by while my own daughter died of thirst." Terri may or may not be cognizant of her surroundings (depending on the opinion, and there are differing opinions) but her parents are certainly of sound mind. How will her slow death by dehydration affect them? How does having them searched and guarded while visiting their dying daughter violating their rights? How does denying them the ability to offer ice chips, which at this point would be simple creature comfort, violate their rights?


Kit

 

An interesting article on the Schivo case.

http://story.news.yahoo.com/news?tmpl=story&cid=676&ncid=676&e=1&u=/usatoday/20050325/ts_usatoday/feudmaybeasmuchovermoneyasprinciple

 

I read that one. I'm sickened by the injustice to Terri's family and the fact that Terri's wishes are not known...

Dave

 

Once again, it is not about her parents or her husband. It is about Terry. She has been in her current condition 15 years. This issue has been in the courts for literally years. All the medical tesitimony points to irreversible brain damage and no awareness. The courts concluded her wish was not to be kept alive. Parhaps it shouldn't be, but it is about Terry and her wishes. My sympathies go to her parents.

 

I have read several articles on the $ 1 million malpractice settlement and the implications thereto on this case.

By way of background, I have been working on the defense side of medical malpractice cases for 21 years now. I defend and settle medical malpractice cases for a living. And so a question remains for me: how much of the $ 1 million settlement was received by the plaintiffs?

Typically, in a contemporary malpractice case, the plaintiff attorney contingency fee ranges from 33 to 50%, depending on your jurisdiction, if there are limits on attorney fees and if the case went to trial or not. And then there are the costs advanced by plaintiff counsel which are paid out of the settlement. The Schiavo case occurred many years ago, and contingency fees at that time may have been at the low end of the scale along with costs.

Right now, in the Seattle area, plaintiff counsel contingency fees are about 40-50%, with the higher figure applying if the case goes to trial. And for a relatively simple case with a one week trial, plaintiff counsel probably advances around $ 100,000 in costs. So in a hypothetical case that goes to trial today in Seattle with a $ 1 million verdict, plaintiff counsel would take $ 500,000 as his/her fee, deduct $ 100,000 in costs, and the remainder goes to the plaintiffs. So in my hypothetical, the plaintiff would recover approximately $ 400,000 of that $ 1 million dollar verdict.

So in the Schiavo $ 1 million settlement, with $ 300,000 going to Mr. Schiavo and $ 700,000 going to future medical expenses of Mrs. Schiavo, I wonder how much money either party actually received. I would guess that the $ 700,000 for future medical expenses was actually funded by an annuity that would pay out $ 700,000 over twenty years or the life expectancy of the patient. A $ 700,000 annuity probably cost about $ 200,000-250,000.

So although malpractice settlements are generally confidential, I suspect that of the $ 1 million malpractice settlement paid out, the actual amount recovered by the plaintiffs was much less. Does anyone know the actual amounts?

 

Well no, it is about her husband since this action has been taken on his word. It's been in the courts for years because there is a dispute about what her wishes would be due to no documentation, no living will. Her feeding/hydration tube has been removed before, in previous years, but was always restored because the request came from her legal husband with no documentation whatsoever of Terri's wishes. He never stated this as her wishes until more than seven years had passed since her incapacitation. Before that he claimed he didn't know her wishes, and said exactly that again in a recent interview where he said "We don't know what Terri's wishes are, but this is what we want." Similar circumstances in a criminal case would be basis for reasonable doubt.

Actually no, there are differing opinions from different examining doctors on her level of awareness. The court decision by Judge George Greer that established Michael Schiavo's word as fact (despite no documentation) choose to use the testimony of only one of those doctors, who happens to be one who claims she has no awareness. Other doctors, as well as many nurses who have cared for her over the years do not agree with that assessment and have issued sworn affadavits (under penalty of perjury) on their disagreements.

But again, this is based on Judge Greer's decision that her husband's word alone is fact. This newly established "fact" is the many-years-later recall of a man who has long since moved on with his life, including having a long-term live-in girlfriend with whom he has two children. Over the years he has changed his position on what his wife's wishes are/would be, as per sworn affadavits from several people who knew them both when they lived as a married couple. Despite the fact that he has moved on with his life and has stated his wish to marry his current girlfriend upon Terri's death, he refused to grant a divorce from Terri filed on her behalf by her parents. There are sworn affadavits from nurses that Michael Schiavo, after the first couple years of his wife's incapacitation, began ordering denial of rehabilitative therapy for her. There are also questions about how just how Terri got into her current state ever since a bone scan showed evidence of broken bones in a woman who had no previous history of broken bones. There were no witnesses to her injury, only a claim by Michael Schiavo that his then healthy 26-yr.old wife suddenly collapsed at 6:30 one morning while he was asleep. Some media reports of her having had an eating disorder or having had a sudden heart attack that led to her current condition have been denied by her family as well as doctors and nurses that have cared for her. Michael Schiavo responded to news of the bone scan by filing for (and getting) an order that his wife is to be immediately cremated upon death with no autopsy.

People have dragged religion, politics, disabled persons' rights, and other issues into this dispute that really have little to do with its core issues. It's about two very basic things. First, there are just too many questions and muddied facts in this case that all point to the very viable idea that Michael Schiavo may not be the best legal guardian (and therefore sole spokesperson) for Terri Schiavo. Second, since Terri Schiavo had no living will and is currently unable to state her own wishes, no one truly knows her wishes. As Michael Schiavo himself said, "We don't know what Terri's wishes are, but this is what we want."

 

There must be some reason why her parents are unrelentingly trying to keep her alive... There must be some reason why her "husband" is unrelentingly trying to end her life while living with another woman... Only an ice cold person could deny the parent's (and family) request to keep Terri alive when he loses nothing by letting her live, except closure. I suspect there will be some significant backlash because of this case. Frankly, I'm sickened by the whole issue.

Dave

 

Me too. Horrible. And that has nothing to do with the politics of it. Very sad.

 

Kit and Dave

I know you feel strongly about this. This has been in the courts for over 5 years. All of the Doctors except one which did not fully examine her but relied on verbal counsel with a doctor that had say she is in a permanent vegitative state. Her parents are wracked with emotion (As I would be). The Judge ruled that she would not wish to be kept alive. All of these issues have been reviewed at multiple levels in our court system. This is not an overnight happening. The whole situation is horrible but there are no evil people here. I hope everyone involved can at some point come to terms with her passing.

 

Kit – Your point is well taken and goes to something I’ve been mulling over. Which is this; in my experience nursing personnel often the direct care nursing assistants have the best take on the ‘relative sparing’ of cognitive functions. Much more reliable than the opinion of someone who sees the patient for a single consultation. If you have a reference I’d like to read what nursing personnel who care for her say about this. Over time, they can tell if the patient responds differentially to simple commands or instructions for ADL care. An example might be something very basic like opening her mouth for oral hygiene. The question of whether Terri has any sparing of her cognition is in the forefront, especially since the attorney concluded she wants to be allowed to live. In light of this, I’d like to find out if her nurses have anything to say about Terri’s capacity to communicate with eye blinks. In case you (or an interested reader) don’t understand let me explain briefly. There is an informal but established code used to communicate with those who can neither speak nor write -- say, on a ventilator -- in which they respond yes or no to questions with eye blinks. Commonly one blink is yes and two is no. You can use any number of mechanisms, hand squeeze for example, so long as the person is able to respond reliably. Eye blinks often remain when stroke or damage affects motor output. It’s necessary to first determine the person has the capacity to respond reliably to basic yes-no questions. The usual procedure is to ask 6-8 questions along the lines of while pointing to your nose, “Is this my nose,” making sure to ask both yes and no questions. Once you’ve ascertained the person has this capacity you can move on to more complex questions. It’s not easy and it takes an incredibly long time but you can assess mental status this way. When called upon to do so I always consult with the nursing staff first. They generally point me in the right direction. It seems unlikely that if she has this capacity it hasn't been identified but, nevertheless, I'd like to read what her nurses say.

Thanks,

Dave

 

Hi David

It is my understanding that the brain damage is much more extensive than this. It was stated the whole of the cortex is gone along with much of the other parts of the brain. As you state it would be interesting to know if she has any awareness of any kind, but again I believe the medical records shows she does not.

 

Michael Lloyd,

I was born in Seattle and grew up in Olympia. What remains of my family is still in Western Washington. I've often thought about moving back but I hesitated for two reasons:

What's the job market for lawyers like up there, now? You have a LOT of new admittees every Bar cycle, it seems to me and you have suffered a nasty depression since the NASDAQ crash but there always seem to be ads in the Bar News, so how is it really?

New Mexico has reciprocity with no one. I wouldn't much mind taking another Bar, even the notorious all-essay Washington exam, but my wife has sworn and she will not repent that she will NEVER take another Bar. But MAYBE we are about to see the light...

 

Washington is only now beginning to emerge from our economic depression with a concomitant uptick in the financial, business and legal sectors. Our local dot com industry is in tatters, except for Microsoft and Nintendo, Boeing has cut way back due to decreased plane orders since 9/11, and there is lots of vacant Class A office space in downtown Seattle. I should mention that I am one of the few remaining Seattle-area natives and an alumnus of the UW.

Hiring in some areas is starting to pickup, but slowly. My wife has twenty years healthcare management experience in the Navy and a MHA, and she still has not found a good job since retiring from active duty in 2000.

Speaking only as to the Seattle area, the legal job market is still pretty depressed in most specialties. Most of the ads are for lateral moves in plaintiff personal injury, some business positions and SSI/workers comp disability. There is not a lot of inhouse corporate work or insurance defense available. Bankruptcy is a growth area, which may tell you something.

Although some of the big firms in town still aggressively recruit new associates, the criteria and time line to make partner have toughened up considerably. Combine this with our high (compared to other areas of the country) housing costs, and lowered demand for legal services, and it adds up to a somewhat bleak outlook. Numbers of our local law school graduates end up moving elsewhere, particularly those who entered law school late in life to retrain after their dot com imploded.

If I was an experienced lawyer like yourself, I would not move to the Seattle area unless I actually had a firm offer and acceptance in hand. Moving here and trying to find a job, unless you are part of the 'old boy/girl' network from the UW, Seattle University or University of Puget Sound, can be difficult.

 

Thanks Dave, I’ve read the same information where Terri’s been identified as decorticate and I’m not especially sanguine about her having the capacity for higher level cognitive functions. It’s very difficult to think that legions of experienced clinicians dropped the ball but miracles can happen. My best guess is that what appears like attempts to communicate are variants of two very primitive responses. The first, the orienting response, occurs when an organism encounters an event in the stimulus field and directs its attention accordingly. Try clapping your hands when your cat is napping; it will open its eyes and gaze toward you. After several claps it habituates and no longer looks. What this means is that Terri will look toward those who approach her leading to the conclusion this is voluntary on her part. The second is the catastrophic reaction, a form of the flight or fight response, which is seen in dementia when the person is overstimulated. It commonly occurs in response to excessive noise levels but it can occur in response to noxious stimuli like pain, hunger, and overly cold or hot temperature. My thought is that well-intentioned and perhaps impassioned attempts to coax Terri into speech overstimulate and elicit meaningless vocalizations in the service of avoidance. You see erroneous conclusions about speech capacity occasionally with aphasic stroke victims who, when upset, demonstrate a capacity to swear like sailors in crystal-clear speech. Concluding it to be rehabilitative their families intentionally frustrate the person to make him ‘speak.’ But I could be wrong about Terri, miracles can and do happen. I’d like to say I was the clinician who came across the miracle I’m about to describe but I’m not. In locked in syndrome the person is cognitively intact but unable to exert any voluntary motor activity and communication is limited to eye blinks. In the case in point the neurologist’s opinion was the patient had no higher cognitive capability but the nursing staff disagreed. A very savvy speech pathologist discovered that coordinated, bilateral eye blinks were unreliable but when one eye was covered the unilateral blinks were reliable. If it hadn’t been for the astute observation and persistence on the part of the nursing staff the person’s intact cognitive abilities may never have been identified.

So, once again Kit, I welcome references to the observations of Terri’s nurses.

 

Michael Lloyd,

Thanks for the economic snapshot. New Mexico remains relatively underlawyered (outside of Santa Fe) and work is easy enough to find. Of course, as I said, we don't have reciprocity with ANYONE.

We came through the Crash unscathed, not because we were particularly robust but because we are permanently poor and depressed so there was nowhere to go! (One of our state senators recently suggested changing the state motto to "Thank God for Mississippi" meaning that we aren't ALWAYS 50th in personal income, etc.)

That plus the fact that our economy is based heavily on defense and oil and gas revenues means that our state budget was one of the few to remain largely in the black since 2000.

Plus, our weather is better than Seattle. I think what I'll do is stay here and visit there. Besides, being 1,500 miles from my family isn't ALL bad!

 

And for that Naval base.

Are they sue happy down there as are we evile New Yawkas?

 

Sue-happy?

No, I don't think so, of course I have never practiced law outise of the Land of Enchantment so I can't really compare.

There are fewer than 2 million of us in the fifth largest state for area in the Union...and we have little real industry or commercial finance. The things that generate commercial law suits are pretty much absent.

There are only about 4,700 active attorneys in state and that includes people like me, who work for government.

The AVOWED reason for not adopting a reciprocity rule, BTW, is to keep outsiders, mainly Texans, from coming in and flooding our market. I heard this from no less a personage than the chairman of our Board of Bar Examiners in 2002 and our local Bar Commissioner not two months ago. Twice, in the latter's case.

This is, of course, both restraint of trade and a violation of our obligation to assist the public to have affordable access to counsel. I was and am absolutely horrified by this attitude (though I personally profit from it).

On the other hand, our Bar passage rate hovers between 85% and 95% so it's not like a reasonably determine applicant can't acquire our law license with a minimum of fuss.

I've gotten awfully far off topic. Sorry.