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March 4, 2005

Saving Terri Schiavo: The Florida Legislature can get it right this time

Topics: Terri Schiavo's Life Counts

In light of the fact that I had great difficulty getting through the sign-up routine and the ads at the Miami Herald, I am posting the entire article that was actually emailed to me from the Schindler's media center. However, I am providing a link to the Herald's article:

BY ELIZABETH PRICE FOLEY(Professor at FIU College of Law)
On Feb. 11, 2000, Pinellas Circuit Court Judge George Greer determined that there was ''clear and convincing evidence'' that Terri Schiavo would want to disconnect her feeding tube. Once this decision was made, the judicial balance became tilted in favor of withdrawing care to an extent nearly impossible to overcome.

That initial erroneous decision by Greer five years ago has had a snowball effect that has tainted all subsequent judicial proceedings. The Second District Court of Appeal affirmed Greer's decision, concluding, in a disturbingly cursory fashion, that Schiavo's ``statements to her friends and family about the dying process were few, and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.''

However, Greer's conclusion that the evidence was ''clear and convincing'' is shocking. As a law professor who specializes in bioethics, I am amazed at how little evidence there is regarding what Schiavo would want under her present circumstances.

Schiavo was a healthy 27-year-old at the time she suffered cardiac arrest and lost consciousness. She was a Catholic who did not regularly attend mass. She made very few oral statements regarding her attitude toward artificial life support. None of her statements was made in a particularly serious context or elaborated upon with any detail. None of her statements addressed the specific issue of receiving food or water. Under facts such as these, a court would ordinarily conclude that the evidence is hopelessly in equipoise -- the classic ''six one way, half a dozen the other'' situation.

In such situations, the evidence cannot provide clear and convincing proof that the individual would want to discontinue treatment. As such, Florida law dictates that we err on the side of life.

Procedural rules that effectively deny reconsideration of this critical issue have forced Schiavo's parents to devise new arguments to keep their daughter alive. Allegations of abuse and the possibility of effective treatments are essentially tangential considerations that shed no light on the heart of the case -- namely, whether, under an objective examination of the evidence, there is clear and convincing evidence that Schiavo herself would want her feeding tube disconnected.

The judicial process has failed Schiavo and forced the other two branches of Florida's government to act in extraordinary ways to remedy an extraordinary wrong. Ironically, the Florida Supreme Court has ruled that these attempts are unconstitutional violations of the separation of powers doctrine.

The Florida Legislature should try again. Rather than enacting a special law, the Legislature this time should enact a generally applicable law to govern all similar cases.

The statute should require trial courts to consider specific factors when determining whether ''clear and convincing evidence'' exists to support withdrawal of nutrition and hydration for patients lacking valid advance directives.

Consideration should be given to the timing, frequency and seriousness of the individual's statements, the specificity of the statements, whether the statements are related to the condition in which the patient currently exists, the maturity of the individual when the statements were made, the ethical or religious beliefs of the individual and the possible financial interests of the witnesses conveying the alleged statements.

If Greer had considered and weighed these factors (normally considered by courts in making such decisions), he could not have reasonably concluded that there was ''clear and convincing evidence'' that Schiavo would have wanted to withdraw her nutrition and hydration.

Shame on the executive and legislative branches for attempting to intervene in an ongoing case. But shame also on the judiciary for failing to offer meaningful appellate review of such a crucial life-or-death issue. The Legislature should act quickly, within its power, to enact a statute that requires the courts to provide the detailed and sober analysis of the facts demanded by justice in a life-or-death decision.

Cross Posted at BlogsForTerri

Posted by Hyscience at March 4, 2005 10:37 AM

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