Schiavo: A Hard Case Makes Questionable Law

Article excerpt

Since the 1970s Quinlan case, decisions about life-sustaining interventions have been a major focus of bioethics inquiry. By the end of the 1990s, however, professionals and the general public were paying less attention to this topic. After the U.S. Supreme Court rulings on physician-assisted suicide, it seemed that most of the major issues about end-of-life choices had been settled.

But appearances can be deceiving. In the final months of 2003, another end-of-life controversy captured the nation's attention. This new dispute over life-sustaining treatment demonstrated that sharp disagreements persist regarding the acceptable conditions for forgoing treatment. The dispute over Terri Schiavo's care triggered heavy media coverage and actions by officials in all three branches of Florida's state government.

Thanks to the extensive publicity, most readers are familiar with the facts of the case. In 1990, Terri Schiavo's heart stopped. Paramedics revived her, but oxygen deprivation had already produced severe brain damage. Later that year, her husband, Michael Schiavo, was appointed her guardian. For several years, he and his wife's parents, the Schindlers, remained friendly. But their cooperative relationship ended after malpractice litigation produced an award of about one million dollars, which went into a trust fund to cover the patient's care.

By the mid-1990s, Michael Schiavo concluded that his wife would not recover. In 1998, he asked a court to permit removal of the patient's feeding tube. The Schindlers opposed this request. By 2003, various challenges and counter-challenges had been considered in numerous court proceedings. The courts, applying Florida statutes and case law, determined that Michael Schiavo's request to withdraw treatment should be honored. (1)

The Schindlers continued to oppose treatment withdrawal, however, and certain organizations and state officials expressed support for their position. In October 2003, at the behest of Governor Jeb Bush, the Florida legislature passed a law authorizing the governor to block the court order to remove the tube, pending additional testing to ascertain whether the patient could ingest food orally. This laws constitutionality then became an issue for the courts.

In the meantime, Governor Bush issued a stay keeping the tube in place and a guardian ad litem was appointed to prepare a case summary and recommendations on whether the stay should be continued. Last December, the guardian ad litem, Jay Wolfson, submitted his report. (2) It is a detailed and thoughtful account that concludes by recommending further testing to evaluate the patient's swallowing ability. It also urges the parties to agree in advance about the effect test results should have on the treatment decision. As the report notes, "Given the history of this case, [the testing] would not, in and of itself, assure a resolution, and is not, therefore, deemed either feasible or of value to Theresa Schiavo without prior agreement."

Source of Disagreement

At least five points underlie the family dispute that is responsible for keeping this case in the legal spotlight. One is whether Terri Schiavo is in a persistent vegetative state. An evidentiary hearing in 2002 focused on this question. Three neurologists, including one appointed by the court and two chosen by Michael Schiavo, said that she met the criteria for PVS. A neurologist and a radiologist selected by the Schindlers said that her condition was less severe than that. Though the court found clear and convincing evidence that Terri Schiavo met the criteria for PVS, the parents believe that more tests are needed to evaluate her current capacities.

Terri Schiavo's prognosis is another point of contention. At the earlier evidentiary hearing, the physicians testifying for the parents said that they thought she could be helped by certain interventions (hyperbaric therapy or "vasodilatation" therapy). …