Fighting for Dear Life (17 page)

What also bothers me is that for nearly ten years both Michael and these members of his family had remained silent about Terri's alleged wishes.
If
Terri had really mentioned something about her end-of-life wishes during casual conversations as Michael and his family members claimed, why didn't Michael's family remind him that Terri wouldn't want to ‘‘live that way'' when she was first injured?

Why didn't Michael himself do the honorable thing and step forward to declare Terri's wishes during the malpractice trial before a jury awarded more than a million dollars for her care if both he and his family believed that Terri wouldn't want to have that care?

YOU DECIDE

Terri Schiavo might still be alive today if she had either had a different husband or a different judge. Terri had no jury at the 2000 trial to weigh the evidence regarding what her end-of-life wishes would have been regarding use of a feeding tube. Florida law requires clear and convincing evidence at trial if a person who can no longer speak for himself does not have a living will or some other written document stating their end-of-life wishes. Since Terri had no such written document, testimony had to be presented and evidence evaluated in court to determine what those wishes might have been in the circumstances in which she found herself.

Since there was no jury to hear this testimony, the judge himself weighed the evidence presented by Michael Schiavo and his brother and sister-in-law (that Terri would want to die) against the evidence presented by Terri's parents, her siblings, and friends (that she would want to live). Appellate courts would most likely have upheld the judge's decision, whichever way he decided the case. The trial court is the only judicial body concerned with weighing evidence and determining facts. Appellate courts only review the procedure used and any legal questions. In Terri's case, the judge weighed the evidence and erred on the side of death rather than on the side of life. Another judge might just as easily have taken the opposite approach. What would you have done if you were the judge? Let's see how you would have weighed the evidence. First of all, it is important to point out that Michael never mentioned Terri would not have wanted to live with a feeding tube until several years after her collapse in 1990. In fact, during the medical malpractice trial in 1992, Michael assumed that Terri would live a long life. He told the jury in that trial that he needed millions of dollars so he could take care of Terri for the rest of his life. But after receiving a jury verdict of more than a million dollars, Michael reassessed his situation during the mid-1990s, and by 2000 he testified in Judge George Greer's courtroom that Terri had told him she would not want to live ‘‘like that.''

Michael Schiavo testified before Judge Greer that, in her early twenties, Terri had expressed an oral declaration while watching various nonspecified television programs about disabled people that she would not want to live ‘‘like that''—i.e., presumably on artificial life support, which prior to 1990, when Terri allegedly made these statements, consisted only of artificial heart and lung machines and did not include feeding tubes. Michael also testified that Terri had told him she would not want to live ‘‘like that'' when talking about her uncle who had been injured in a car accident and was semiparalyzed although he lived at home, traveled to the beach, and had a job.

To back up Michael's version of Terri's wishes, his brother and sister-in-law testified that Terri had made similar end-of-life statements in casual conversations with them, including a discussion about ‘‘life-support machines'' at a family funeral and a discussion about friends who had removed their severely disabled newborn from a breathing machine. Both of Michael's relatives testified on cross-examination that they had never told Michael about these conversations with Terri and didn't ‘‘remember'' them until 1999 when they were preparing for their court testimony.

This was the entirety of the pro-death testimony regarding Terri's wishes.

On the other hand, Terri's family and friends testified that Terri had great compassion for the sick and disabled, often visited her grandmother at a nursing home, and had never made any end-of-life statements, except to disapprove of the actions of Karen Ann Quinlan's parents when they removed their daughter from life support (but did not remove her feeding tube).

Terri's family and friends always stressed to me that Terri had great compassion for sick animals and elderly people and that her favorite saying was, ‘‘Where there's life, there's hope.''

Judge George Greer, who conducted the trial in 2000, also heard testimony from a sociologist who stated that most people would not want to live after becoming severely disabled. The court approved payment of Michael's legal bills for this trial using Terri's medical malpractice trust fund. The Schindlers, who had no money for legal expenses and who were denied use of Terri's malpractice funds to defend her life, offered no expert testimony to contradict this evidence.

If Judge Greer had determined that the evidence he heard was not clear and convincing in favor of removing Terri's feeding tube, she might still be alive today, receiving therapy and interacting socially with her family and friends. Would she be able to eat on her own? Could she have recovered? These are questions we can no longer answer. Even Dr. Jon Thogmartin, the medical examiner who conducted Terri's autopsy, said it is impossible to make such determinations by viewing a corpse. Such a diagnosis can only be made by examining a live patient.

But there is one thing we can know for sure. If Terri were still alive today, she would be basking in the love and care of her devoted family and her many friends, no matter what her condition or the degree of her recovery. One thing Terri's family and friends fully agreed with her on was that ‘‘where there's life, there's hope.''

The lack of a paper trail detailing Terri's wishes wasn't missed by ABC News' Chris Bury. In a
Nightline
interview, Bury quizzed Michael about this missing link of indisputable evidence:

Why would Judge Greer permit hearsay testimony, suddenly remembered by Michael and his family years after the fact, as the basis for a life-and-death pronouncement? Since Terri could no longer speak for herself, she had no way to correct or clarify what she was alleged to have said. At the very least, the Schindlers argued, the court should have provided Terri with a lawyer to represent
her
own interests, since they might not have been the same interests her husband had.

Unbelievable as it sounded to me, that never happened. Throughout the many years of this intrafamily legal wrestling match, Terri never had any legal representation of her own. The court's unfortunate assumption apparently was that Michael's attorney was also representing Terri since Michael was Terri's legal guardian. (Keep in mind we were representing her parents, Bob and Mary Schindler, while George Felos was representing Michael Schiavo.)

As it turned out, a probate court judge was able to overrule the will of the governor, the Florida legislature, the U.S. Congress, and the president by ordering Terri to die.

This is why I maintain that the fate of an ordinary kitchen appliance would have had greater legal protection than did the life of Terri Schiavo.

THE DEATH PENALTY

Much like Alice struggling to make sense of Wonderland, I still cannot comprehend how the people who were entrusted with protecting Terri—namely, her guardian/husband and the guardianship court— were so in favor of ending her life. I'm also amazed when I meet people in my travels who fail to grasp the fact that starvation/dehydration is an act of brutality so severe and so heartless that fellow Americans would never permit such a death, even in a case where death was warranted, as with Ted Bundy, the Florida mass murderer.

Imagine this scenario.

As of this writing, thirty-eight states permit the execution of men and women who have done horrible crimes against humanity. What do you think would happen if, in one of those states, the legislature were to say, ‘‘Here's an idea that will save money and take some of the strain off our budgets. Instead of using the electric chair or spending funds on lethal injections, we hereby authorize the wardens to lock all condemned inmates in their cells, with a police guard to make sure no one attempts to feed them, and then let them starve to death ‘naturally' when their appeals have expired. A couple of weeks later, send in the guards and haul out the corpses.''

The lawmakers could contend that these inmates are already sentenced to die, and as reported by the
New York Times
, ‘‘experts say ending feeding can lead to a gentle death.''
6
Sure, such a proposal sounds farfetched. But why not explore the starvation of death row inmates for efficiency and cost savings? Answer: The Eighth Amendment's cruel and unusual punishment clause covers
all
people, including hard-core prisoners.

The courts have ruled that states must execute their capital punishment sentences as painlessly and as swiftly as possible. Understandably, electric chairs have fallen into disfavor because of their unreliability. For instance, Florida used to use an electric chair that became known as ‘‘Old Sparky''—it killed the condemned
most
of the time on the first jolt. But sometimes it didn't and a second try was attempted. That was completely unacceptable. So given the desire to treat criminals humanely, we've gone to lethal injections.

Clearly, our system of justice bends over backward to minimize pain during the death process of convicts. Which is why
Terri's only crime was
that she committed no crime worthy of the death penalty
. Think about what I just said. If Terri had broken the law, she never would have been dehydrated and starved to death anywhere in America. How did we get to such a low point in our nation's history where there are better protections in place for people incarcerated against their will than there were for Terri as a ward of the state?

I believe what happened to Terri is a reflection of our culture at large. We're a disposable nation with an insatiable appetite for what's newer, brighter, bigger, and better. Take mobile communications. What do we do when our cell phones and pagers become out-of-date? We toss them, right? What do we do when a computer is old? We buy a new one and trash the old workhorse. Appliances, clothing, gadgets—you name it, we toss 'em and run to WalMart for a new one at the first signs of wear.

If we're not careful, that disposable consumer view will regularly find its way into the courtroom setting. In fact, that's what happened with Terri. The Pinellas County Probate Court had no problem lumping Terri in the ‘‘damaged goods'' bin even after many excellent doctors, neurologists, speech therapists, and others gifted with rehabilitation training and skills stepped forward to testify that Terri might be rehabilitated.

The court said, in effect, that no matter what condition Terri was in or might be in—even if we could teach her to swallow, to drink on her own—nothing the Schindlers might be able to demonstrate to the court could prove that any treatment would raise her quality of life to the level where the judge would believe Terri would want to stay alive.

Is that difficult to believe?

Consider Judge Greer's second order to withdraw Terri's nutrition and hydration on November 22, 2002 (the first was on February 11, 2000). He wrote, ‘‘The real issue in this case, however, deals with treatment options for Terry [
sic
] Schiavo and whether or not they will have any positive affect [
sic
] so as to ‘significantly improve her quality of life.' '' Do you see the dangerous slope we have just stepped onto with that line of reasoning?

It's as if we, as a nation, have collectively fallen down the rabbit hole and entered Wonderland. Here we discover that the disabled, the handicapped, the sickly, the elderly, and potentially, people suffering from terminal HIV/AIDS are being told by the courts: Your life is not worth living if it doesn't meet our own minimal quality standard.

At least in Lewis Carroll's fable, Alice awakened to learn that her topsyturvy courtroom drama and her visit to Wonderland was simply a fantastical dream. If only we could do the same. Instead, Terri's tragic story finished as a nightmare.

CHAPTER ELEVEN

TERRI'S LAST MEAL

ORDERED AND ADJUDGED
that absent a stay from the
appellate courts, the guardian, MICHAEL SCHIAVO, shall
cause the removal of nutrition and hydration from the ward,
THERESA SCHIAVO, at 1:00
P.M.
on Friday, March 18,
2005.

—J
UDGE
G
EORGE
W. G
REER, FEBRUARY 25, 2005