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Business Observer Friday, Oct. 24, 2003 19 years ago

The Schiavo Case: No Mercy in Florida

A lot is riding on this case. The sad truth is many practitioners of bioethics, medicine and law no longer believe that people like Terri Schiavo are fully human. A prescription for moral freefall?

The Schiavo Case: No Mercy in Florida

A lot is riding on this case. The sad truth is many practitioners of bioethics, medicine and law no longer believe that people like Terri Schiavo are fully human. A prescription for moral freefall?

By Wesley J. Smith

At 2 p.m. on Oct. 15, 2003, Terri Schiavo's feeding tube was removed, leaving her to slowly dehydrate to death. This was done at the request of her husband, Michael Schiavo, and at the order of Judge George W. Greer of the 6th Judicial Circuit, in Clearwater. If the order had been carried out, Terri would have died over a period of 10 to 14 days.

The Schiavo case is only the most recent "food and fluids" case to make national headlines, after Nancy Cruzan (Missouri), Michael Martin (Michigan), and Robert Wendland (California). But Schiavo's case has gone a step beyond all the rest: Not only are Michael Schiavo's conflicts of interest so blatant that he should be allowed no say over her care, but Terri is also being denied rehabilitative therapy that several doctors and therapists have testified could wean her off the feeding tube.

Terri Schiavo collapsed from unknown causes in 1990 and experienced a devastating brain injury. Michael brought a medical malpractice case in which he promised the jury that he would provide Terri with rehabilitation and care for her for the rest of his life. The jury in 1993 awarded $1.3 million in damages, approximately $750,000 of which was set aside to pay for her care and rehabilitation. But once the money was in the bank, Michael refused to provide Terri with any rehab. Moreover, within months, he had a do-not-resuscitate order placed on her chart.

Had she died then, Michael would have inherited all the money. But he denies having a venal motive, claiming that the trust fund money is now exhausted. If true, this is bitterly ironic. For the past three years he has been in litigation, opposed by Terri's parents and her other relatives. Rather than the funds going to pay for medical therapists to help her, as the jury intended, much of it instead paid lawyers that Michael retained to obtain the court order to end her care.

Michael's second conflict of interest is deeply personal. He is engaged to be married and has had a baby with his fiancee, with another one on the way. The couple would like to marry, but Michael's wife, inconveniently, is still alive.

Judge Greer ordered Terri dehydrated based on dubious testimony from Michael, his brother, and his brother's wife that Terri told them she did not want to be hooked up to tubes - something he never told the malpractice jury when he sought a financial award. To the contrary, the malpractice jury was told that Terri could expect a normal lifespan.

Whatever Terri said or did not say, she certainly never asked to be denied the very treatment that might allow her to eat without medical assistance. Yet, in the ultimate injustice, Judge Greer refuses to permit Terri to receive rehabilitative therapy that could help her relearn to eat by mouth, even though several doctors and therapists have testified under penalty of perjury that she is a good candidate for tube weaning.

True, experts hired by Michael disagree. But so what? This isn't a case where we have to believe one side's medical experts or the other's. The issue can be decided empirically by providing Terri with six months of therapy to see if she improves. But Judge Greer, in a decision that elevated procedure over justice, won't do that because, he ruled, it would mean retrying the case.

In that unreasonable denial, it looked as if Greer might have crossed a crucial line. St. Petersburg attorney Pat Anderson, who represents Terri's blood family, believed that denying food and water and potentially rehabilitative therapy that could have made the feeding tube unnecessary, reeked of discrimination against the disabled. She filed a civil rights lawsuit seeking a federal injunction against the dehydration. Adding to the suit's potential legal heft and credibility: Florida Gov. Jeb Bush dramatically signed on to the federal case, urging the court in an amicus brief to prevent Terri's dehydration until she received treatment to determine whether she could relearn to take food and water by mouth. But once again, the law turned its back on her. U.S. District Court Judge Richard Lazzara ruled Oct. 10 that the federal courts had no jurisdiction and dismissed the case.

People are often shocked at how Terri has been treated as somehow less than a fully human person by the legal and medical experts who are determined to see her dead. They shouldn't be. This case illustrates how utterly vulnerable people with profound cognitive disabilities have become in this country. Not only are many routinely dehydrated to death - both the conscious and unconscious - but often the people making decisions to stop food and water, like Michael, have glaring conflicts of interest.

Some of the worst such conflicts come not from family members but from a medical establishment eager to remedy the chronic shortage of organ donors. The literature is brimming with advocacy that death be "redefined" to include a diagnosis of permanent unconsciousness. An article just published in Critical Care Medicine, the journal for doctors who specialize in treating the most seriously ill and injured patients, urges the adoption of an even more radical policy. Drs. Robert D. Troug and Walter M. Robinson, from Harvard Medical School and the Medical Intensive Care Unit at Children's Hospital, Boston, want to discard the "dead donor rule" requiring that vital organ donors die before their organs can be procured, writing: "We propose that individuals who desire to donate their organs and who are either neurologically devastated or imminently dying should be allowed to donate their organs, without first being declared dead."

The authors urge that the relevant question about organ donors should be changed from the current query - is the patient dead? - to, "Are the harms of removing life-sustaining organs sufficiently small that patients or surrogates [e.g., Michael Schiavo] should be allowed to consent to donation?" This is a prescription for moral freefall. Not only do the authors strongly imply that some of us have less value than others but that those so denigrated can be killed for utilitarian ends.

Troug and Robinson attempt to justify their homicidal proposal by claiming that we already take the organs of those declared brain dead but that such patients are really alive. I don't believe this is true, assuming proper diagnosis. But if I am wrong, it is a scandal of the highest order, for it means that society was sold a bill of goods about brain death by bioethicists and organ transplant professionals.

The answer to such a moral travesty would not be to expand medical homicide beyond patients who have suffered a total cessation of brain activity. Rather, it would be to permit doctors to procure organs only from donors who have been declared dead in the traditional manner; because their hearts have ceased beating without hope of restarting.

Advocacy in Critical Care Medicine for discarding the dead donor rule follows on the heels of the Ethics Committee of the Society of Critical Care Medicine's advocacy for legalizing "futile care theory," which would permit doctors to refuse wanted life-sustaining treatment - including "low tech" treatments such as antibiotics - based on the doctor's perception of the "quality" of the patient's life. "Given finite resources," the Ethics Committee stated in 1997, "institutional providers should define what constitutes inadvisable treatment and determine when such treatment will not be sustained."

This plan is currently being implemented. Medical and bioethics journals have reported in recent years that futile care protocols are being adopted quietly by hospitals throughout the country.

The Schiavo case has drawn attention only because her family is in profound disagreement about the care she should receive. If futile care theory takes hold, we may see fewer such cases, if only because the unilateral refusal of treatment will quietly occur without anyone speaking up for the patient.

The sad truth is many practitioners of bioethics, medicine and law no longer believe that people like Terri Schiavo are fully human. As a consequence, these patients are being systematically stripped of their fundamental right to life and, perhaps worse, are increasingly looked upon as mere natural resources whose bodies can be plundered for the benefit of others. If it is true that a nation is judged by the way it treats its most vulnerable citizens, a lot is riding on the Schiavo case.

Wesley J. Smith is a senior fellow at the Discovery Institute. This article is reprinted with permission of The Weekly Standard, where it first appeared on Oct. 10.

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