QUESTION: In general, how should an Orthodox Christian view the current situation with Terry Schiavo? I guess one of the issues is that of extraordinary means. Does the Church have a position on extraordinary means? I presume it does but then what are extraordinary means? Does the Church consider a feeding tube extraordinary means?
Another related question would be: How does the Orthodox Church view the matter of a person’s wishes in the event they ended up in a vegetative state? In other words, does anyone have the moral right to deny themselves food, water, etc. If they enter a vegetative state or would that be considered suicide.
I was reading in the paper today that doctors speak of a sort of spectrum here. On one end would be coma, then the vegetative state and finally brain death. Maybe you could comment on whether the Church would make a distinction between these states and what would be allowed or not allowed in each instance.
For example, I would guess that the Church would consider a person in a coma should be treated as any other living person and that a brain-dead person would be considered as having already died. But, where would a person in a vegetative state fall, in the Church’s view? And does it depend at all on the factors listed above e.g. so-called quality of life, prognosis of recovery, length of time in the state or whatever?
ANSWER: YOU WRITE: In general, how should an Orthodox Christian view the current
situation with Terry Schiavo?
RESPONSE: The principle affirmed by the Orthodox Church is that, while extraordinary/unnatural means should not be taken to prolong a life, especially in the case of brain death, it is also the case that extraordinary/unnatural means should not be taken to prematurely end it.
The problem in the Schiavo case is that there is no real consensus, whether it be among her husband and parents and other family members or within the medical establishment, as to whether she is in fact brain dead. While I am certainly no specialist in this, from what I have seen she seems to be responsive on some level and is obviously not in a coma. As such, it would only be my opinion that to hasten her death would be morally and ethically wrong. I have seen people, including my own father, who were brain dead, and from my uneducated perspective his and their situations were quite different from that of Mrs. Schiavo.
YOU WRITE: I guess one of the issues is that of extraordinary means. Does the Church have a position on extraordinary means?
RESPONSE: Yes, as stated above. In the case of my father, whose heart had been stopped for over two hours — far longer than necessary for brain death — and who had been hooked up to a respirator with no chance of ever being able to breath or function on his own, the procedure was clearly extraordinary, and after two futile days, he was removed from support after it was clear that in no way would he be able to breath or function without assistance. Mrs. Schiavo, however, does not appear to be in this same vegetative state.
YOU WRITE: I presume it does but then what are extraordinary means?
RESPONSE: The example of my father would constitute extraordinary means. The respirator did not assist him in breathing; rather, it breathed for him. As the doctor himself opined at that time, one could hook up a child’s inflatable swimming pool up to the respirator, and it would force it to “breathe.” Pumping air into someone or something, and forcing the air out, in reality does not constitute “breathing.” The doctor noted that if he were to be removed from the respirator, there would be no way that he could breathe on his own, since there was absolutely no brain activity.
The flip side of “extraordinary means” comes in bringing a life to a premature ending, as in the case of administering medications designed to literally kill a suffering person, a la Dr. Kevorkian.
And one must always be concerned with such buzz terms and concepts as “quality of life,” “death with dignity,” and so on. “Quality of life” is a highly subjective term, while “death with dignity,” depending on its precise meaning, stands in conflict with the Orthodox Christian belief that death is always a tragedy, that death, not being part of God’s creation, is always “unnatural,” inasmuch as we were not initially created to die. [Here we’re reminded by Saint Paul that death came into the world as a consequence of sin, not by the express will of the Creator.]
YOU WRITE: Does the Church consider a feeding tube extraordinary means?
RESPONSE: The answer is relative, depending on the condition of the individual. In my father’s case, it — the respirator — was clearly an extraordinary/unnatural means, inasmuch as it was clear that he would never breathe or function in any way, due to brain death. In the case of Mrs. Schiavo, for whom no real consensus has been forthcoming yet who clearly is in a different “place” than one who is totally unresponsive on any level, the feeding tube would not be seen as extraordinary / unnatural means. What makes it even more complicated in the case of Mrs. Schiavo is that there are some who have opined that with appropriate therapy, she might return to her former state. While this clearly seems to be a “long shot,” it is equally clear that she may be responsive on some level, and as such, it is impossible for anyone to know what is really and completely going on “in her head,” so to speak.
YOU WRITE: Another related question would be: How does the Orthodox Church view the matter of a person’s wishes in the event they ended up in a vegetative state? In other words, does anyone have the moral right to deny themselves food, water, etc. If they enter a vegetative state or would that be onsidered suicide.
RESPONSE: Based on the principle noted above, it would seem that one who requests that no extraordinary/unnatural means of prolong life, especially if brain death occurs, would not be inappropriate and would not constitute suicide, strictly speaking. This is different than requesting a lethal injection of a death delivering substance should one be diagnosed with a terminal illness. For example, the cancer patient who, rather than facing his or her illness requests to be euthanized would not be acting morally or ethically, inasmuch as what he or she is requesting is essentially assisted suicide — which is, indeed, suicide.
YOU WRITE: I was reading in the paper today that doctors speak of a sort of spectrum here. On one end would be coma, then the vegetative state and finally brain death. Maybe you could comment on whether the Church would make a distinction between these states and what would be allowed or not
allowed in each instance.
RESPONSE: Obviously, these matters, much less such distinctions, are not found in the traditional writings of the Holy Fathers; this is “new territory,” so to speak. It is clear that coma is not synonymous with brain death, and there have been numerous cases — one just a few weeks ago — of
individuals who have been in comas for years suddenly emerging from them, to the shock of family and physicians alike. Brain death is something completely different, from my uneducated perspective. Taking extraordinary means to prolong the life of a brain dead individual, on the notion that they might “snap out of it,” as in the case of so many coma victims, is more than a “long shot.” I must clarify that this is my opinion, and I must also note that it is a somewhat uneducated one, at best.
YOU WRITE: For example, I would guess that the Church would consider a person in a coma should be treated as any other living person and that a brain-dead person would be considered as having already died.
RESPONSE: This would be reasonable, given the Church’s definition of death as the parting of the soul from the body.
YOU WRITE: But, where would a person in a vegetative state fall, in the Church’s view?
RESPONSE: Again, the term “vegetative state” is somewhat subjective. One can say that Mrs. Schiavo is in such a state because she is completely dependent on others; at the same time, one could say that my father was in such a state as, being brain dead, he was completely dependent on others. For that matter, one could say that a newborn infant is also totally dependent on others — “vegetative” in a different sense of the word. This would seem to indicate that there can be different “shades” of the vegetative state — but I do not want to delve into the area of pure speculation, other than to observe that there is a lot of “gray area” here.
YOU WRITE: And does it depend at all on the factors listed above e.g. so-called quality of life, prognosis of recovery, length of time in the state or whatever?
RESPONSE: Each case would have to be evaluated on its own merits from the pastoral as well as medical perspectives.
Father John Matusiak
OCA Communications Director
I would like to comment on the apparent confusion over a “vegetative state”. As an Orthodox Christian who works in Neurosciences, I see patients with various degrees of brain injury daily. A vegetative state is different than “brain damage”, and there are several types of brain injury where a person may not be able to communicate or may be unconscious but still has what we call cognitive function (i.e. the ability to think, feel, awareness of their surroundings etc.). If a person is in a vegetative state, there is no cognitive function. The person is not aware, they can’t feel, they can’t suffer, they can’t respond. The cortex (the part of your brain where all those activities take place) is gone, destroyed, non-functional and the person will never regain consciousness. The part of your brain that controls basic functions such as heart rate and breathing (mid-brain) can still be intact which would allow the person to live…for a short time. Without food and water, the person would die. Without a feeding tube, the person would not be able to be fed. Any food or water place in the mouth would likely not be swallowed, but could end up in the lungs, causing pneumonia and eventual death. A feeding tube for a person in a vegetative state is an “extraordinary measure” to prolong life. Despite some wild theories about rehabilitation from this state, those theories have been brought forward by people who have something to gain (generally monetary gain), and have no scientific validity.
While I have not seen Ms. Schiavo or spoken with anyone who has examined her, the evidence I have read in this case does suggest that she is in a vegetative state – i.e. completely non-responsive. Regardless of my opinion, and despite some edited video, wishful thinking, and well-intentioned protest by her family members, this matter has been brought before the courts over 20 times and each time the courts have upheld this diagnosis. I can understand the pain her family feels (I see it every day at work), but if she truly is in a vegetative state, how can she grow spiritually and emotionally or progress towards theosis? Are we not guilty of “playing God” by prolonging her life artificially when this is not possible?
We may never know all the facts in this case, or the motivation behind either side on this issue. There are no winners. The best I can do is pray for a painless and blameless death for Ms. Schiavo (which appears imminent at time of writing this) and for comfort for her family and friends.
Missourian, sorry to impose on you but could you clear up Tania’s confusion about “being brought to court 20 times”? Is refusing to hear new evidence the same thing as “upholding the diagnosis?”
Only One Evidentiary Hearing on Terri’s Medical Condition
There were not twenty hearings in which Terri’s medical condition was examined by witnesses.There was only one critical hearing. Here is the full explanation if you want to track it in terms of legal procedure.
My understanding of the case is that there was only one hearing conducted by the trial judge which looked into the medical evidence concerning Terri’s condition. The trial court judge arrived at some conclusions regarding the medical evidence in the record and then the evidentiary record was closed. Generally a party has only “one shot at the apple” to get factual evidence into the official court record. This occurs at the level of the lowest court called the “trial court.” Trial courts receive the case in the first instance and accept witness’ testimony. When these proceedings are closed the evidentiary record is closed. When an appellate court reviews a case, it takes the factual or evidentiary record as frozen in the transcript of the trial court proceedings. No new evidence or testimony is received. In short, proceedings in the trial court are the most important proceedings in a case. A party simply must get his critical evidence into the record at that stage or be forever barred from adding it.
The consensus from informed legal observer is that the Shindler’s were outlawyered at the initial hearing, the critical evidentiary hearing. Once that hearing was over, help from appeal courts was necessasrily quite limited. I think the Shindler’s were blindsided, I don’t think that they fully grasped the intense willfullness of Michael’s desire to see Terri die. I can attest that Michael’s triumph in this case required an intense and highly focused effort maintained over many months. Michael’s effort required a great deal of energy from him on a daily and weekly basis and could not have succeeded without a great deal of expensive and sophisticated legal help for Michael. There were many opportunities for Michael to relent and he didn’t.
There is reason to believe that Michael Schiavo, in his capacity as guardian, restricted medical care, medical reviews, therapy and medical tests for a long period of time BEFORE the critical hearing. What this means is that the range of medical evidence available at the hearing was limited. Now remember that after Michael Schiavo became a guardian he began training as a nurse. This means that he was in a fairly good position to effectively BLOCK the development of evidence that would be needed to support Terri’s case. Terri’s parents claimed that Michael blocked therapy and medical examinations for long periods of time which effectively limited the amount of relevant admissible medical testimony in a manner which helped Michael’s efforts.
Hope this helps rather than confuses
Good Summary of Shiavo Case
Here is a reference to what I consider to be a good summary of the Schiavo case:
http://www.weeklystandard.com/Content/Public/Articles/000/000/005/408ytxle.asp?pg=2
The discussion on page two of this article is key. Here is the key excerpt:
With scant evidence, a Florida district court concluded that Terri Schiavo would clearly choose death over life in a profoundly incapacitated state. There was no living will, no advance directive, no formal instructions left by Terri Schiavo about what to do for her under such circumstances. Instead, the court relied entirely on Michael Schiavo’s recollection of a few casual conversations, on a train and watching television, in which Terri supposedly said that she wouldn’t want to live “if I ever have to be a burden to anybody” or be kept alive “on anything artificial.” This was evidence of her possible wishes, to be sure. But in light of Michael Schiavo’s own earlier statements and behavior–including his pledge to care for Terri for the rest of her days, his unwillingness to remove her feeding tube when the idea was first suggested, his shifting sense of moral obligation as he realized that Terri’s condition was probably permanent, and his romantic involvement with multiple other women–these recollections hardly constituted “clear and convincing evidence” of Terri’s wishes. In this case, the court had a legal obligation to “err on the side of life.” Instead, it chose to allow Michael Schiavo to choose death.
Part of the problem was simply judicial incompetence–especially the court’s decision, in direct violation of Florida law, to act as Terri Schiavo’s guardian at key moments of the case rather than appoint an independent guardian to represent her interests, separate from the interests of her husband and her parents. But the problem went deeper than incompetence: It also had to do with ideology–with a set of assumptions about what makes life worth living and thus worth protecting. Procedural liberalism (discerning and respecting the prior wishes of the incompetent person; preserving life when such wishes are not clear) gave way to ideological liberalism (treating incompetence itself as reasonable grounds for assuming that life is not worth living). When the district court’s decision to allow Michael Schiavo to remove the feeding tube was challenged, a Florida appeals court framed the question before it as follows:
[W]hether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members AND LOVED ONES TO BE FREE TO CONTINUE THEIR LIVES. (emphasis added)
Now, one could surely read this as an effort to get inside Terri’s once competent mind. But more likely, it expresses the court’s own view of Terri’s now incompetent and incapacitated existence as a meaningless burden, a barrier to her husband’s freedom. The court’s obligation to discern objectively what Terri’s wishes were and whether they were clear–a question of fact–morphed into an inquiry as to whether she could ever get better, with the subjective assumption that life in her present condition was not meaningful life. The question became: Was she in a persistent vegetative state (PVS), and if so, can’t we assume that Terri believed death to be preferable to life in such a state?
In response, both sides brought out their best medical experts: Michael Schiavo’s doctors to quiet our consciences and assure us that Terri was already long gone, a mere ghost of her former self; the Schindlers’ doctors to tell us that she was still responsive to her environment and still might get better, even after years of not improving. Clearly, for many years, Terri’s treatment was subpar, and to this day many tests that could clarify her diagnosis have not been done. At the same time, a conservative estimate of her prospects for recovery suggests that her chances were slim, and that she would remain in her profoundly incapacitated state till the end of her days. The court finally ruled that she was indeed in a PVS, and that her feeding tube should be removed–which it was on October 15, 2003.
By then, of course, the Schiavo case had become a public drama, and the outcry at the prospect of leaving Terri to die was overwhelming. The Florida legislature sprang into action, and on October 21, 2003, it passed “Terri’s Law,” giving the governor authority to stay the court’s judgment, order the feeding tube back in, and order a review of the case by an independent guardian charged to report on Terri’s behalf. So began the next round of court fights and political battles. The ACLU joined Michael Schiavo in challenging the constitutionality of Terri’s Law. Terri’s court-appointed guardian issued a largely unhelpful report. And eventually, the Florida court overturned Terri’s Law, rejected the Schindlers’ appeals, and ordered that the feeding tube once again be removed–which it was the other day, on March 18, 2005. And despite Congress’s dramatic effort to restart the case in federal court and Gov. Jeb Bush’s continued encouragement to the Florida legislature to act again on her behalf, the most likely outcome at this writing is death by dehydration–the final triumph of Michael Schiavo’s will, and supposedly what Terri Schiavo herself would have wanted.
Wrong Questions
Eric Cohen’s Weekly Standard article, quoted at some length above, does a great job in refining the issues. He suggestst that the first inquiry was “What would Terri have wanted in this case?” He then states that the emphasis shifted (improperly) to whether Terri’s life was “worth living.” The first question was an attempt to understand what a mentally competent Terri would do if she could communicate her wishes. The second inquiry is whether, in general, it is worth preserving the life of a person in Terri’s physical condition.
Eric Cohen, correctly in my mind, points out that these are the wrong questions. We should be asking what society owes a person in this condition. My admittedly limited grasp of Christian teaching is that we owe them loving care without an calculation as to whether the sick person’s life is “worth living.” Christians ascribe sacred value to life and no attempts are made to distinguish “worthwhile” lives from “useless lives.”
As I mentioned earlier, the “root cause” of this debacle is not simply a improperly conducted legal proceeding, it is the acceptance of the idea of “right to die” as a positive value.
The Power of a Right under Law
It is very important to trace the concept of “right to die” and to challenge it. Here is why. The American legal system as originally structured by the Constitution identifies certain very important rights which are protected by the Constitution and other laws. The Framers, in their wisdom, choose to create and identify only a limited number of extremely important rights….. free speech… freedom of religion….right to a jury trial and a few others.
Our entire legal system is built around the concept of protecting identified rights. If the idea of a “right to die” is incorporated into American law the entire structure of the law will be mobilized in favor of that right. This means that the entire structure of American law will be mobilized in favor of dying not living. Extended appeals in death penalty cases are available because of the present healthy legal bias in favor of protecting life.
As I mentioned earlier, English Common law in force for centuries had addressed this issue. People think that it had not. The condemnatin of suicide and the criminalization of suicide was not adopted to punish hapless, mentally ill people who attempted but failed to take their own lives. Suicide was criminalized so that people could not legally HELP another commit suicide. This is to prevent the predictable case of killing an elderly member of your family and claiming that you were just carrying out his wishes.
Well…if the legal case is as you state it…so be it. I still haven’t heard any credible information from the media that would make me think the diagnosis is incorrect.
My comment’s purpose on this board is to contribute to this discussion as an Orthodox Christian with some background in this area. I don’t have some hidden agenda. I don’t feel hostility toward Michael or Terri’s parents. I am in no position to question their motives based on what I think happened, or on what political agenda I support.
I just think it is a very sad situation, and I suggest we all prayerfully consider what actions we can take to prevent our own families and loved ones from having to suffer in this manner.
Missourian quotes: “With scant evidence, a Florida district court concluded that Terri Schiavo would clearly choose death over life in a profoundly incapacitated state.”
Not scant evidence but by a standard of clear and convincing evidence. This finding was and related reasoning was confirmed on appeal.
“Instead, the court relied entirely on Michael Schiavo’s recollection of a few casual conversations . . .”
Not true. The court relived on a the depositions and testimony of a number of peole, including the Schindlers.
“But in light of Michael Schiavo’s own earlier statements and behavior including his pledge to care for Terri for the rest of her days, his unwillingness to remove her feeding tube when the idea was first suggested, his shifting sense of moral obligation as he realized that Terri’s condition was probably permanent, and his romantic involvement with multiple other women-these recollections hardly constituted ‘clear and convincing evidence’ of Terri’s wishes.”
That’s correct, and that is also the conclusion of the first guardian ad litem. This is why there was a court hearing, and why the court considered testimony from a number of people other than Michael Schiavo.
“In this case, the court had a legal obligation to ‘err on the side of life.'”
The court has a judicial preference (not a legal obligation) on the side of life in the event that the patient’s wishes cannot be determined. There is no “legal obligation” to “err on the side of life,” in the event that the patiet’s wishes can be determined to a “clear and convincing” standard of evidence. The court has an obligation to determine what her wishes would have been as best they can be determined. It has absolutely zero obligation to “err on the side of life,” merely because those wishes cannot be determined with absolute certainty or because some people continue to raise concerns.
The District could of appeals ruled that “the Schindlers argue that the testimony, which was conflicting, was insuffient to support the trial court’s decision by clear and convincing evidence. We have reviewed the testimony and find that the trial court had sufficient evidence to make the decision. The clear and convincing standard of proof, while very high, permits a decision in the face of conflicting or inconsistent evidence.”
“Instead, it chose to allow Michael Schiavo to choose death.”
Completley not true, though it does make for a good story and it gets the troops riled up. Does anyone bother to read the court record to find out the actual basis of the judge’s ruling? Apparently not. From the District Court of Appeals:
“In this case Michael Schiavo has not been allowed to make a decision to discontinue life support . . . Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the trial court’s jurisdiction to allow the trial court to serve as the surrogate decision-maker.”
“Part of the problem was simply judicial incompetence-especially the court’s decision, in direct violation of Florida law, to act as Terri Schiavo’s guardian at key moments of the case rather than appoint an independent guardian to represent her interests, separate from the interests of her husband and her parents.”
The appeals court found that this did not violate Florida law: “Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record. Accordingly we affirm the trial court’s discretionary decision in this case to proceed without a guardian ad litem.”
“When the district court’s decision to allow Michael Schiavo to remove the feeding tube was challenged, a Florida appeals court framed the question before it as follows:”
Whoa! I can’t believe it! Someone on the Schindler side is about to quote something from the actual court record! Talk about miracles . . . can the Second Coming be far behind?
Unfortunately, the author gets it wrong. It’s not the issue before the Florida appeals court. It the the Florida appeals court describing the issue before the *trial* court: “In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo . . . ”
The author remarks that “Now, one could surely read this as an effort to get inside Terri’s once competent mind. But more likely, it expresses the court’s own view of Terri’s now incompetent and incapacitated existence as a meaningless burden, a barrier to her husband’s freedom.”
The problem with this interpretation is that the Court of Appeals decision makes it clear that they believe the trial court to have acted to determine *Terri’s* wishes — not the wishes of her husband, not the wishes or her parents, and not even what the court might have thought was in her best interest: ” . . . we are convinced that . . . the trial court made a proper surrogate decision and not a best interests decision.”
“Michael Schiavo’s doctors to quiet our consciences . . . ”
Here the author leaves the facts of the case in order to offer a bite of propaganda.
“Clearly, for many years, Terri’s treatment was subpar . . . ”
Again, a very nice myth designed to rile the troops. The December 2003 report of the guardian ad litem says that “it was determined that [Michael Schiavo] had been very aggressive and very attentive in his care of Theresa. His demanding concern for her wellbeing and meticulous care by the nursing home earned him the characterization by the administrator as ‘a nursing home administrator’s nightmare.’ It is notable that through more than thirteen years after Theresa’s collapse she has never had a bedsore.”
“Terri’s court-appointed guardian issued a largely unhelpful report.”
What the hell does that mean? Unhelpful? That’s all this guy has to say about it?
Jay Wolfson, DrPH, JD, was appointed guardian ad litem and charged with preparing a report to Gov. Jeb Bush. He states that “the entire court file of thirteen years, including items of evidence, has been reviewed and studied, with particular attention given to decision points in the case history that are reflected in motions to and orders by the Court. The case review has included clinical and medical records, discussions with members of the family, caregivers, and with medical, legal, bioethical, and religious practitioners and scholars and the conduct of independent research into the substantive issues in this case. The GAL has met regularly with Ms. Schiavo, his ward.”
Perhaps the report was “unhelpful” because it largely comes down on the Michael Schiavo side of the case, and it fails to confirm all the terrible accusations thrown at Michael Schiavo. Unhelpful. Give me a break. Yeah, unhelpful for the propagandists, so ignore it.
Missourian, if this is what you consider to be a “good summary” of the case, I’d hate to see a bad summary. It is, however, a good summary of the case as filtered through the propaganda of the religious right.
Tania, Good comment
Tania, I found your comment informative and I don’t question your good faith.
Jim Holman, a Little Bit of Knowledge is a Dangerous Thing
Note 8 defies any attempt at orderly response. Here is the basic problem. You really think you know what burdens of proof mean and you think you know what happens upon review on appeal. You don’t understand either important concept, that is why you are constantly skewing the significance of the legal proceedings. You have done this before in these posts.
Virtually every sentence you have written in Note 8 encompasses a misunderstanding of legal principles. I would have to write a paragraph for each sentence to correct your misunderstanding.
Ok Jim. Let’s assume that your assertions are true: due process was served, the legal and medical team remained objective despite their aggressive record of euthanasia activism, that Michael’s claim Terri wanted to die was true despite it being hearsay, the doctors offering contradicting diagnoses are mistaken, etc.
You keep repeating the record, as if repetition answers the charges of judicial malfeasance. Well, perhaps the detractors are wrong, but at least we are clear why they are challenging it: they think starving Terri Schiavo is wrong. They believe that the Constitution and legal tradition is biased toward life, thus the pro-death ruling in this case must have some legal flaws since it doesn’t conform to the Constitution or legal tradition. (Missourian’s expertise has been invaluable here.)
Why do you think starving Terri Schiavo is right? Does it just boil down to the fact the Court ruled she should die?
One Holman Error Explained: Clear and Convincing Evidence and Review on Appeal
LIMITATIONS OF THE ROLE OF THE APPELLATE COURTS IN CORRECTING LOWER COURT ERRORS
As I have explained in several posts, the important events in the Schiavo case occurred in the trial court. This is because the trail court is the only court empowered to accept evidence. At the close of the trial court proceedings, the evidentiary record is closed. An appellate court simply studies the transcript from the trial court. So, this limited record on appeal is one of the most important limits on the ability of an appellate court to correct errors that might have occurred during the trial court proceeding. The fatal error, it appears, for Terri’s side was the failure of the attorney at the initial proceeding to be fully prepared to present evidence on the issue of Terri’s intent. I have read in reliable sources that Michael Shiavo’s siblings were allowed to testify BUT that the Shindler’s attorney DID NOT CROSS EXAMINE THEM. This is incompetence of lack of preparedness equivalent to malpractice. However, there is no grounds on appeal for “ineffective assistance of counsel” as there is in criminal cases. So with an unprepared attorney who fails to get critical evidence into the record, the appellate court cannot really help the litigant with the ineffective attorney, it cannot accept new or additional evidence. This is only one of the due process violations that Terri suffered. Over and over her life gets less consideration than that of a convicted criminal who has the possibility of relief from an incompetent defense attorney. Not Terri.
CLEAR AND CONVINCING EVIDENCE: It is true that the trial judge STATED that he was applying the “clear and convincing evidence” standard. This is what is called “black letter law”. This is different from concluding that the evidence before the judge DID IN FACT meet the “clear and convincing evidence” standard. Whether the evidence met that standard would be a question for review on appeal. However, the standard of review heavily leans in favor of leaving factual finding undisturbed, the appellate court has to find an “abuse of discretion.”
STANDARD OF REVIEW: ABUSE OF DISCRETION.
Appellate review is generally limited to reviewing questions of law. Appellate courts are intentionally directed away from reviewing or disturbing “findings of fact” arrived at in the lower court. In probate cases, it is common for a judge to be the “trier of fact,” in other words there is no right to a jury trial in probate court. When the judge arrived at factual conclusions the appellate court could only review those conclusions by a “abuse of discretion” standard. This “abuse of discretion” standard is very, very hard to meet. I have studied literally thousands of appellate cases where a party tried to overturn a lower court factual finding and I have never seen a party meet the standard of review “abuse of discretion.”
SINCE YOU DON’T UNDERSTAND THE DISTINCTIONS BETWEEN FINDINGS OF FACT AND FINDINGS OF LAW AND SINCE YOU DON”T UNDERSTAND THE STANDARDS OF APPELLATE REVIEW YOUR LAYMAN”S INTERPRETATION OF THE COURT RECORD IS FLAWED.
You essentially lack respect for the boundaries of your knowledge. I have just spent several paragraphs correcting only one of your mistakes. I don’t have time to go through all of them. This is one important example among many.
Note 10. I see this too, although as a non-lawyer I can’t address it with the intellectual sophistication you bring to the discussion. Doesn’t give me much confidence in ethics commitees though.
Missourian writes: “You really think you know what burdens of proof mean and you think you know what happens upon review on appeal. You don’t understand either important concept, that is why you are constantly skewing the significance of the legal proceedings. You have done this before in these posts.”
At least I’m referencing the actual language of the legal documents. I don’t have an attorney’s understanding of burden of proof, but I think at the lay level I more or less grasp what is happening. I know that there is a difference between ‘clear and convincing,’ ‘proponderance of evidence,’ and ‘reasonable doubt,’ though I could not give you the textbook definition.
The piece you just posted passes by all the issues with only a single reference to any of the documents related to the case. If there are actual legal problems with the courts’ decisions, then why is it that people don’t bring them up? Why is it that I ask time and again for actual examples of legal errors – and hear nothing?
Why is it that we continually hear about how the court relied “entirely” on Michael Schiavo? I might not understand the exact distinctions of burdens of proof, but unlike most posters here I at least know when more than one person is involved in a legal proceeding. I know the difference between the word “them” and “him.” I know when a judge describes hearing testimony and reading depositions from various people that he in fact has heard from more than one person. This is a fundamental distinction which most people here, including the author of the article you posted, seem not to grasp.
If you think my understanding of legal matters is deficient, how about all the people here who NEVER ONCE reference any of the legal proceedings in the case — people who continually repeat myths that have no basis in fact, but are taken as gospel. How about a word from you also to them, that perhaps they should at least make an ATTEMPT at understanding some of the legal aspects of the case?
Missourian: “Virtually every sentence you have written in Note 8 encompasses a misunderstanding of legal principles. I would have to write a paragraph for each sentence to correct your misunderstanding.”
Fair enough. How about one paragraph? I would be especially interested to know if my analysis of the difference between “several people” and “one person” is legally sound.
Holman Note 8
Jim Holman types:
The court has a judicial preference (not a legal obligation) on the side of life in the event that the patient’s wishes cannot be determined. There is no “legal obligation” to “err on the side of life,” in the event that the patiet’s wishes can be determined to a “clear and convincing” standard of evidence. The court has an obligation to determine what her wishes would have been as best they can be determined. It has absolutely zero obligation to “err on the side of life,” merely because those wishes cannot be determined with absolute certainty or because some people continue to raise concerns.
****************************************************************************
Please read this excerpt a second time. Can you “hear” what you are saying, Jim? Whether these assertions are correct statements of Florida law or not, these statement should be a matter of moral concern. You have stated the crux of the controversy……
There is no “legal obligation” to “err on the side of life.”
Here is the moral wrong. English Common Law and American legal tradition has until very recently “erred on the side of life.” Abortion was illegal. Suicide was illegal. Assisted suicide was illegal. Our legal system was in large part inherited from England which was a country with an officially Christian government. The very idea of a “right to die” had been considered and rejected as immoral. Why should we give convicted criminals multiple appeals if there is no legal obligation to err on the side of life?
Jim have you no concern that this will lead to a new defense to the charge of murder of the elderly. Won’t criminal defense attorneys be able to file a new defense: but lawful assisted suicide based on the elderly persons right to die. If not, why not? I know some smart criminal defense attorneys who are thinking this as we type.
Note 8 Physician/Patient Privilege
Given that my doctor could be a participant in a plan to kill me, why should I trust him with full information about the extent of my symptoms and health?
This is why many physicians have resisted any attempts to legitimize assisted suicide or the “right to die” concept. It is an interference with the physician patient relationship, basic trust that your physician will not the instrument of harm to you, the patient.
Jim, doesn’t it occur to you that all the elaborate legal and philosophy arguments of the cultural left about abortion and “right to die” amount to not much more than getting rid of inconvenient sick people or inconvenient small people.
Note 16. Either Jim does not understand the legal or cultural ramifications of his position, or else, in moral terms, he is a culture of death advocate.
Missourian writes: “Please read this excerpt a second time. Can you ‘hear’ what you are saying, Jim? Whether these assertions are correct statements of Florida law or not, these statement should be a matter of moral concern. You have stated the crux of the controversy — There is no ‘legal obligation to ‘err on the side of life.”
First, concerning Florida law, as you know I’m not an attorney. What I’m going off of are a couple of things. First, no one has ever brought to my attention any reference to any law or explicit precedent putting a judge under a legal obligation to “err on the side of life.” This is why I call it a “judicial preference,” because that is more or less how the Florida district court of appeals described it, though in different language.
What I would like to do is to lay out what I believe are the complicating factors in end-of-life cases, including PVS cases. In my view the problem is that there are various degrees of knowledge that we might have about a patient’s wishes. Along with that there are varying degrees of evidence or “burden of proof” in the legal system. Complicating that are various goals of treatment and various decisions that the legal system could arrive at. For example:
Degrees of knowledge when requesting withdrawing of treatment:
1) patient can communicate and is rational
2) patient can communicate but is questionably rational
3) patient can communicate but not rationally
4) patient cannot communicate but has advanced directive
5) patient cannot communicate but explicitly discussed wishes with family
6) patient cannot communicate but discussed end of life issues in general terms
7) patient cannot communicate; patient’s wishes are unknown
Degress of illness:
1) terminal in near term; no intervention can extend life
2) terminal in near term; intervention can extend life but not change prognosis
3) terminal in long term through medical intervention
4) permanently unconscious; medical intervention can continue life, not alter condition
Goal of decision:
1) determine patient’s wishes
2) determine what family members want for the patient
3) determine what is in the patient’s “best interest” — what a “rational person” would want were he in the same situation.
Possible primary decision-maker:
1) patient
2) family
3) physician
4) governmental agency
Possible goals of medical care:
1) restore conscious patient to health
2) partially restore conscious patient to health
3) maintain patient who is conscious but with limited functioning
4) maintain patient in an unconscious state
Possible standards of evidence:
1) beyond reasonable doubt
2) clear and convincing
3) preponderance of evidence
Possible ways of handling uncertainty:
1) make best decision possible, acknowledging uncertainty
2) always ‘err on side of life.’
The problem in discussing these issues is that it is important to know what we’re talking about in each category. For example, many medical providers do not believe that maintaining a patient in a permanent unconscious state is a legitimate medical goal. Is that “culture of death?”
Many people believe that a competent, rational patient can legimately accept or reject any particular medical intervention, even if it leads to his or her death. Is that “culture of death?”
Many people believe that we should act on patient wishes as best we can determine them, even if that decision does not rise to beyond reasonable doubt. Is that culture of death?
Many people believe that we should make medical decisions for unconscious patients even if there is some uncertainly about the diagnosis or patient’s wishes. Is that culture of death?
Some people believe that if a patient’s wishes are unknown it is legitimate to decide what is in the patient’s “best interest.” Is that culture of death?
I’m not trying to pick arguments here. I’m just saying that there are a potentially large number of complicating factors, many different kinds of cases, different views of what constitutes adequate evidence of a patient’s wishes, different views of what constitutes legitimate, non-futile treatment, and different views of whether the patient should be the primary decision-maker.
This is why I find the phrase “culture of death” to be particularly unhelpful, as it does nothing to clarify complex situations, nor does it help us to make good decisions in the midst of complexity. It does nothing to help us understand where the real disagreements lie.
I also why I find the phrase “err on the side of life” to be unhelpful. What does that mean? Any time there is the slightest uncertainty? mild uncertainty? moderate uncertainty? complete uncertainty? concerning the medical diagnosis or the patient’s wishes that we pursue the most aggressive therapy? In other words, if there is a one percent chance that an unconscious person has cancer we’re going to initiate chemotherapy? What about when erring on the side of life also carries with it real health risks from side effects? “Err on the side of life” sounds nice, but how would that phrase play out in actual medical decisions? And how would we make it a “legal obligation?”
How did the Horror Happen?
Many people have remarked that Terri was not given the procedural protection that a convicted criminal would have been given. This is true. I have been giving a lot of thought about how this could happen. This is not a simple miscarriage of justice with a tragic outcome. It is a deep perversion of justice.
Take a look at probate court prior before the “right to die” movement had an impact on American society. Probate court was a division of the civil courts. Most judges go on rotations where they spend a couple years in general civil courts, a couple of years in probate and a couple of years in the criminal courts. Probate court was considered a “sleepy” assignment. There were few cases with any fireworks. Probate court was a deeply humanitarian court. The important role of the Court was the care of those who could not care for themselves and who did not have effective family members to help them. Probate courts would handle adoptions. The legal standard was “the best interest of the child.” Probate courts were charged with setting up conservatorships and guardianships for incapacitated adults that needed help. Probate courts were charged with supervising guardians and making sure that guardians performed their fiduciary duty (position of high trust) properly The burden of proof on the propriety of the conduct of the guardian was on the guardian. Any guardian could be removed if there existed a conflict of interest or an APPEARANCE of a conflict of interest.
The level of formality required in a legal proceeding depends on what is at stake.
In criminal cases, the defendant may lose his freedom or even be put to death. Consequently, there exists a high level of formality and many procedural protections. Probate court was NOT DESIGNED TO HANDLE DEATH PENALTY CASES. Probate judges were seen as the PROTECTORS of the incapacitated not their executioners. Here is a comparison of the procedures and standards in criminal cases and probate cases.
Burden of Proof: Criminal= beyond a reasonable doubt Probate=clear and convincing
Right to an Attorney: Criminal=yes, for felonies Probate = no
Right to Effective Assistance of Counsel: Criminal=yes Probate=no
Right to Payment of Expert Witness Fees: Criminal=yes, Probate = no
Right to a Jury Trial: Criminal=yes for felonies Probate=no
Fifth Amendment Right against Incrimination: Criminal=yes Probate=testimony of
ward can be used against him
Right to Habeus Corpus Review: Criminal=yes Probate=no
Freedom from Cruel and Unusual Punishment: Criminal = yes Probate = no
Right to Cross Examine Witnesses Against You: Criminal=yes Probate = no
High Evidentiary Standards (i.e. hearsay rarely admitted) Criminal = yes Probate = no
None of these procedural and evidentiary protections were ever considered necessary because no one thought that the LIFE of the ward would be at stake from a ruling of the Judge. Terri would be alive with the feeding tube and dead without it.
As Leftists love to talk about “root causes” I believe at this point in my thinking that the “root cause” of this obscene travesty is the concept of a “living will” morphing into a “right to die” morphing into a judgment of whether an individual enjoys the quality of life that merits legal support or legal termination. This kind of travesty could only arise due to the diabolical moral inversion which arises from the concept of the “right to die.” As I explained, our ancestors were not strangers to the idea of suicide. Think of Socrates famous suicide. Suicide was a phenomenon in the Classical world and it was part of the cultural history of Western legal thinkers. Our wise Common Law judges in medieval England fully considered the practice of suicide and declared it illegal and immoral. They were so wise, so right. This is just what they wanted to prevent.
What it Means to Err on the Side of Life:
Jim Holman writes:
I also why I find the phrase ?err on the side of life? to be unhelpful. What does that mean? Any time there is the slightest uncertainty? mild uncertainty? moderate uncertainty? complete uncertainty? concerning the medical diagnosis or the patient?s wishes that we pursue the most aggressive therapy? In other words, if there is a one percent chance that an unconscious person has cancer we?re going to initiate chemotherapy? What about when erring on the side of life also carries with it real health risks from side effects? ?Err on the side of life? sounds nice, but how would that phrase play out in actual medical decisions? And how would we make it a ?legal obligation??
*****************************************************************************
Jim, I am at a loss for words, (and that is saying something). We should err on the side of life in the face of any uncertainty. Any uncertainty at all. If you were unconscious and there was uncertainty as to the precise nature of your condition, how would you want your caregivers to behave? We are a wealthy country, we don’t need to push our elderly off on an ice flow.
There is a scene in Dr. Zhivago where the Red Army fires into a group of junior school age military students and slaughters them. They are all boys of the age of 11 to 13. The Red Army sargeant shows no remorse upon examination of the bodies. Dr. Zhivago turns to the Red Army solder and says ” Have you ever loved a woman?”
What Dr. Zhivago meant was that he, Dr. Zhivago couldn’t understand how anyone who had every experienced a deep, truly deep loving connection to another person, could view the corpses of these boys with indifference.
Jim, I can’t go any farther with you.
Note 20: This may have been referenced already, but Jonathan Alter notes:
“On March 14, Sun, a 6-month-old baby with a fatal form of dwarfism, was allowed to die in a Texas hospital over his mother Wanda’s objections. Under a 1999 law signed by Bush, who was then governor, cost-conscious hospitals are empowered to decide when care is “futile.” The Hudson case is the first time ever that a court has allowed bean counters to override the wishes of parents.”
This is why this issue should not be considered a right/left issue as there are grave inconsistencies on both sides.
“We are a wealthy country, we don’t need to push our elderly off on an ice flow.”
I agree, but where are you suggesting these funds come from? Christian charities? The government? Not all people have insurance. Those who do very often have a maximum lifetime benefit that can be utilized: when we’re talking upwards of 15-20 years on hospice or long term care, this max may be completely gone long before. Who will take up the slack?
Jim Holman, Can’t Start from a Blank Slate
There are two fundamental logical errors buried in your Note 18 ( as well as many twisted legal concepts). First, we are not starting with a blank slate. We have a Constitutional history and we have a framework by which law is created, law is changed and law is implemented. Your analysis ignores the existing structure that we have to work with. Again, hate to be tough on ya guy, stems from your general lack of understanding of law.
Secondly, you accept the basic idea that people should have the “right to die” as distinct from “the right to refuse treatment.” I utterly reject the entire concept of the “right to die.”
I am not alarmed at the idea that our society will spend resources maintaining the life of a severely ill person. It does not bother me one iota. If a family member wants to “get own with his life” he can refuse to serve as a guardian, he can also get a divorce if he wants to. I still don’t understand why it is so all fired urgent that we dispatch our sick friends and relatives. You seem obsessed with the idea that we just have to dispose of these people some how. I am not.
I do know from talking to neurologists who have served as expert witnesses that we know relatively little about the brain. We are standing on the shore of an ocean of knowledge about the brain. It has immense ability to respond to injury, to adapt to the loss of brain tissue, to adapt to the loss of some brain functions. We are just beginning to understand the concept of neural networking that makes the human brain a million times more intelligent and agile than any computer. In some cases, people who have physically lost large masses of brain tissue have been able to return to close to normal functioning because of the brain’s miraculous ability to reorganize itself and to dedicate different areas of the brain to new functions.
Have you considered some humility in the face of the miracle of the human body and the human will to live?
James, Mangled Issues
On March 14, Sun, a 6-month-old baby with a fatal form of dwarfism, was allowed to die in a Texas hospital over his mother Wanda?s objections. Under a 1999 law signed by Bush, who was then governor, cost-conscious hospitals are empowered to decide when care is ?futile.? The Hudson case is the first time ever that a court has allowed bean counters to override the wishes of parents.?
This is why this issue should not be considered a right/left issue as there are grave inconsistencies on both sides.
?We are a wealthy country, we don?t need to push our elderly off on an ice flow.?
I agree, but where are you suggesting these funds come from? Christian charities? The government? Not all people have insurance. Those who do very often have a maximum lifetime benefit that can be utilized: when we?re talking upwards of 15-20 years on hospice or long term care, this max may be completely gone long before. Who will take up the slack?
*****************************************************************************
You are mixing and confusing medical issues with economic issues:
Some earlier posts on this blog contained a discussion by an Orthodox clergy about what the term “terminal illness” means. My first question about the case is what do you mean when you say that the doctors determined that the condition was “fatal.”
To me that means that there was no way to stop the baby from dying AND keeping a dead body on a respirator is just blowing hot air through a dead body, it is not maintaining life. So first, you have to ascertain precisely what the condition of the child was. Was it fatal or not?
Terri’s condition was not fatal since she could be keep alive through non-extraordinary means. A feeding tube is a relatively minor device which is not difficult for a layperson to maintain. Terri could have lived at home with occaisional visits from a home care nursing specialist.
So we would need to determine what the medical condition of the child was. Given that medical conditions are medical issues, the question would have to be decided through the use of medical experts. If there was a controversy then it would have to be decided by a Court listening to conflicting medical experts, something that Courts do every day. It is totally logical and normal for medical issues to be determined by medical experts.
Your use of the term “cost-conscious” in the same sentence as “determine when care is futile” suggests that the doctors were not making a dispassionate medical determination of the state of the child’s condition but were looking for places to cut costs. It was one or the other not both.
If funds are needed to care for sick people, they should be provided. It is medical care just like any other medical care. When we, as a country, debate how to provide medical care for our citizens, these disabled citizens should be included along with everyone else.
I do note how the idea of the economic value of disposing of our sick and elderly has very rapidly caught on. Some people make an economic arugment in favor of the death penalty, I find that repulsive. There may be respectable arguments in favor of the death penalty but economics is not one of them.
Jim writes:
This is why I find the phrase “culture of death” to be particularly unhelpful, as it does nothing to clarify complex situations, nor does it help us to make good decisions in the midst of complexity. It does nothing to help us understand where the real disagreements lie.
I also why I find the phrase “err on the side of life” to be unhelpful. What does that mean? Any time there is the slightest uncertainty? mild uncertainty? moderate uncertainty? complete uncertainty? concerning the medical diagnosis or the patient’s wishes that we pursue the most aggressive therapy? In other words, if there is a one percent chance that an unconscious person has cancer we’re going to initiate chemotherapy? What about when erring on the side of life also carries with it real health risks from side effects? “Err on the side of life” sounds nice, but how would that phrase play out in actual medical decisions? And how would we make it a “legal obligation?”
———-
Every time you are asked to provide your moral reasons justifying Terri’s starvation, you backtrack into uncertainty.
Sure the cases are complex. Sure the decisions are difficult. But the terms “culture of death” and “err on the side of life” describe the moral calculus applied to end of life decisions precisely because they are complex and difficult. You argue the reverse: because the decisions are complex and difficult, moral considerations about the value of life ought not apply.
In reality your thinking is utilitarian, and thus culture of death. The only moral rational your arguments employ to justify Terri’s starvation is that the court ordered it, but you don’t seem to have the courage to say it up front.* If I am wrong, show me where I am wrong.
You share the same moral universe as Princeton “ethicist” Peter Singer. You might be personally repulsed by some of his ideas (killing children up to two years old, for example), but your moral reasoning does not differ from his and you stand powerless before his radicalism. Again, if I am wrong, show me.
*This also explains your unwillingness to consider any argument that brings the court decision into question and insistence that the discussion be based on the court documents alone.
Note 21. James, I agree with you and one the reasons is that I am impressed with the courage of some on the extreme end of liberalism to condemn this barbarity. Last night I saw Lannie Davis (Lannie Davis!) fighting to save Terri Schiavo. Earlier in the week we heard from Ralph Nader. I’ve got my issues with both, but my respect for them went up quite a bit.