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The Terri Schiavo Nightmare

The Terri Schiavo case was an estate planner’s nightmare, come to life.

It had everything I dread: A helpless patient whose wishes were never recorded; loved ones at war with one another; endless court proceedings that made talk-show fodder of the most intimate family matters.

The Schiavo case takes its place alongside those of Karen Quinlan and Nancy Cruzan in the pantheon of “right to die” litigation etched into American consciousness. Unlike those earlier cases, or numerous less-publicized decisions, the proceeding known variously as In Re: The Guardianship of Theresa Schiavo, An Incapacitated Person and Schindler v. Schiavo did not create new law. Rather, the Schiavo matter involved the application of relatively well-settled principles to a particularly tragic set of facts.

Terri Schiavo was 26 years old when she went into cardiac arrest on Feb. 25, 1990, at her Florida home. Her husband told police he was awakened by the thud as she collapsed in the doorway of their bathroom. He summoned paramedics. Because young women do not often collapse from natural causes, the paramedics called police, who found no evidence of a crime. Mrs. Schiavo’s cardiac arrest later was attributed to a potassium imbalance brought on by an eating disorder.

Mrs. Schiavo suffered massive brain damage from lack of oxygen while her heart was stopped. This was not immediately evident, however. Police Officer Phillip R. Brewer wrote in his report that he stayed at the hospital while the unconscious Mrs. Schiavo underwent a CAT scan that “revealed no ‘mid-line shift’ of the brain which would indicate an obvious abnormality.” Her family initially harbored hope that she would recover.

Legal Guidance Absent

Like most childless young adults, Terri Schiavo had not signed a will, a “living will” expressing her desires about medical treatment, or a durable power of attorney or health care proxy. State law filled the vacuum by making her husband both her sole property heir and her proxy for making health care decisions. Michael Schiavo’s control over his wife’s care was augmented a few months after her collapse when the court named him her legal guardian.

Michael Schiavo lived with and remained close to his wife’s parents for several years after she was stricken. During this time, he pursued treatment aggressively, even taking Mrs. Schiavo to California to have electrodes implanted in her brain. He also initiated malpractice actions against two of Mrs. Schiavo’s doctors. After one case was settled and another ended in a verdict awarding damages, Michael Schiavo collected about $1 million to be placed in trust for his wife’s care, and another $300,000 for his personal loss of consortium.

It was at this point that Michael Schiavo and his wife’s parents, Robert and Mary Schindler, severed their relationship. “While the testimony differs on what may or may not have been promised to whom and by whom, it is clear to this court that such severance was predicated upon money and the fact that Mr. Schiavo was unwilling to equally divide his loss of consortium award with Mr. and Mrs. Schindler,” Pinellas County Circuit Judge George Greer later ruled. “...Regrettably, money overshadows this entire case and creates potential of conflict of interest for both sides. The Guardian Ad Litem noted that Mr. Schiavo’s conflict of interest was that if Terri Schiavo died while he is still her husband, he would inherit her estate. The record before this court discloses that should Mr. and Mrs. Schindler prevail, their stated hope is that Mr. Schiavo would divorce their daughter, get on with his life, they would be appointed guardians of Terri Schiavo and become her heirs at law. They have even encouraged him to ‘get on with his life.’ Therefore, neither side is exempt from finger pointing as to possible conflicts of interest in this case.”

No Improvement Foreseen

By the mid-1990s, Michael Schiavo had abandoned his attempts to find aggressive new therapies for his wife. He did, however, remain her most frequent visitor and a vigorous advocate for her care in the series of institutions where she was housed, according to court records. Terri Schiavo’s attending doctors concluded that she was in a “persistent vegetative state.” Her brain stem functioned, allowing her to breathe on her own, swallow her own saliva, and respond to stimuli such as pain or sudden noise. But, as one typical evaluation in 1998 found, she exhibited “an absence of voluntary activity or cognitive behavior, and inability to communicate or interact purposefully with her environment.” Based on the many years through which that condition persisted, her doctor concluded “her chance of any improvement to a functional level is essentially zero.”

In 1998, Michael Schiavo asked the court for authority to remove his wife’s percutaneous endoscopic gastronomy (PEG) tube. This was the tube that passed, through an abdominal incision, directly into Terri Schiavo’s stomach to deliver the nutrient-laden solution that kept her alive. The Schindlers opposed the request, setting off a legal battle that would extend over nearly seven years.

Two cases decided in 1990 set the ground rules for the Schiavo litigation. The U.S. Supreme Court held in Cruzan v. Director, Missouri Department of Health that a state could require clear and convincing evidence that an incapacitated person previously expressed a desire to have life-sustaining treatment withdrawn in the circumstances where a surrogate seeks to do so. Nancy Cruzan’s parents, who had sought to have her feeding and hydration tube removed over the state’s opposition, eventually met that burden of proof. The tube was withdrawn and Ms. Cruzan, who spent eight years in a persistent vegetative state after a car accident, died in December 1990.

The Florida Supreme Court, in In Re: Guardianship of Estelle M. Browning, held that an individual’s right to accept or reject treatment survives that person’s incapacity and can be exercised by a surrogate. The surrogate must, however, know that the patient executed any living will knowingly and without duress, or that any oral declaration by the patient is reliable. The surrogate also must be assured that the patient does not have a reasonable probability of regaining competence to exercise her own decision-making rights, and the surrogate must take care that any limitations or conditions expressed by the patient are considered and satisfied. As permitted under Cruzan, the Florida court required clear and convincing evidence that these tests are met.

Two Issues Define Case

The Schiavo case thus hinged, first, on whether there was any hope that Terri Schiavo could someday recover her competence to make decisions for herself, and second, whether there was clear and convincing evidence that she had ever expressed a desire not to be sustained in her current condition.

The Schindlers apparently never accepted that their daughter, as they knew her, was gone and that she could not be brought back. Even after their daughter’s death, their Web site, terrisfight.org, showed an image from the famous video of Mrs. Schiavo, eyes open and teeth displayed in what might be a smile, with the caption: “Terri responds to her mother’s playful attention.”

Judge Greer was sympathetic but unpersuaded. “Mrs. Schindler has testified as [to] her perceptions regarding her daughter and the court is not unmindful that perceptions may become reality to the person having them. But the overwhelming credible evidence is that Terri Schiavo has been totally unresponsive since lapsing into the coma almost ten years ago, that her movements are reflexive and predicated on brain stem activity alone, that she suffers from severe structural brain damage and to a large extent her brain has been replaced by spinal fluid, that with the exception of one witness whom the court finds to be so biased as to lack credibility, her movements are occasional and totally consistent with the testimony of the expert medical witnesses.”

This still left Michael Schiavo with the burden of proving, by clear and convincing evidence, that his wife did not wish to be sustained in the condition she was in. Her failure to executive a living will made this task much more difficult.

Guardian Opposes Request

Richard L. Pearse Jr., the second of three attorneys appointed during the long case to represent the patient as guardian ad litem, recommended that the court deny the request to withdraw the PEG tube. “Since there is no corroborative evidence of [Mrs. Schiavo’s] intentions, and since the only witness claiming to have such evidence is the one person who will realize a direct and substantial financial benefit from [Mrs. Schiavo’s] death, the undersigned guardian ad litem is of the opinion that the evidence...does not meet the clear and convincing standard,” he wrote.

But the court heard from Michael Schiavo’s brother Scott, and from Scott’s wife Joan Schiavo, that Terri Schiavo had told them that she did not wish to be maintained by tubes or machines if in she were in a coma or was a burden to others. These statements, according to Judge Greer, were sufficient corroboration of Michael Schiavo’s account of similar conversations with his wife to provide clear and convincing evidence of Terri Schiavo’s wishes.

After one round of appeals, the PEG tube was removed on April 24, 2001. It was reinserted two days later when the Schindlers filed a civil suit alleging that Michael Schiavo had perjured himself. An appeals court ordered that a panel of five doctors examine Terri Schiavo. Three of the doctors concluded that she was in a persistent vegetative state with no hope of recovery. Two, nominated by the Schindlers, were more optimistic: One proposed treating her with hyperbaric pressure (used to help divers who suffer the bends), while the other endorsed vasodilation therapy. Judge Greer concluded that there was no support in the medical literature for the application of these treatments in Mrs. Schiavo’s case. He again ordered the PEG tube removed.

After more appeals, the PEG tube was again removed on Oct. 15, 2003. An advocacy group filed a federal lawsuit charging that removal of the tube constituted abuse and neglect. Meanwhile, the Florida Legislature passed “Terri’s Law,” authorizing Gov. Jeb Bush to order reinsertion, which he did on Oct. 21. The tube was reinserted that day.

Gov. Bush appointed Dr. Jay Wolfson, a public health professor at the University of South Florida, as the new guardian ad litem. Dr. Wolfson concluded on Dec. 1, 2003, that Mrs. Schiavo was in a persistent vegetative state with no chance of improvement.

Judge Issues Final Order

A trial court found “Terri’s Law” unconstitutional in May 2004. The Florida Supreme Court upheld the ruling in September. After a series of procedural moves, Judge Greer ordered the removal of the PEG tube, for what would be the third and final time, on March 18, 2005.

By this time, however, the U.S. Congress was preparing to intervene on behalf of the Schindlers. Senate Republicans received a memo on March 17 noting that “the pro-life base will be excited that the Senate is debating this important issue,” and that Sen. Bill Nelson, D-Fla., had refused to cosponsor legislation to prolong Mrs. Schiavo’s life. “This is a tough issue for Democrats,” the memo added. A few weeks later, a staffer for Sen. Mel Martinez, R-Fla., admitted writing the memo and was fired.

In the early morning hours of March 21, President Bush signed legislation that would force federal courts to conduct a complete review of the Schiavo case. But U.S. District Judge James Whittemore refused to issue a temporary injunction to order that the PEG tube be reinserted. A requirement for such an injunction was that the Schindlers show a substantial likelihood of ultimate success in their claim the Florida courts had violated Terri Schiavo’s constitutional rights. They were not able to show a substantial likelihood of success, Judge Whittemore ruled.

A federal appeals court denied the Schindlers’ appeal on March 23. The next day, the U.S. Supreme Court refused to hear the case. After one more filing in Judge Whittemore’s court, the Schindlers announced on March 25 that they were abandoning the federal courts. Their last efforts in state court collapsed on March 26. That day, news agencies reported the arrest of a North Carolina man for allegedly offering $250,000 for the murder of Michael Schiavo and $50,000 for the killing of Judge Greer.

Gov. Bush declared on March 27 that there was nothing more he could do. The Schindlers, despite their earlier announcement, made one more unsuccessful trip to the federal appeals court on March 30.

Terri Schiavo died at 9:05 a.m. on March 31. It was 29 years to the day since the New Jersey Supreme Court ruled that Karen Ann Quinlan, in a coma after reportedly ingesting alcohol and drugs at a party, could be removed from a respirator at her parents’ request. She remained in a persistent vegetative state and died in 1985.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.