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Akron Univ. School of Law

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Saturday, March 19, 2005

Dr. Frist's Diagnosis

As reported in today's Washington Post ("Viewing Videotape, Frist Disputes Fla. Doctors' Diagnosis of Schiavo"), Senate Majority Leader Dr. Bill Frist reviewed videotapes from the Schindlers and concluded (as reported in the Congressional Record (pp. S3090-S3091) that the diagnosis of permanent vegetative state is questionable: "Persistent vegetative state, which is what the court has ruled, I say that I question it, and I question it based on a review of the video footage which I spent an hour or so looking at last night in my office here in the Capitol. And that footage, to me, depicted something very different than persistent vegetative state."  Frist also discounted the other physicians who have been involved in the case with these comments:

"I was a little bit surprised to hear a decision had been made to starve to death a woman based on a clinical exam that took place over a very short period of time by a neurologist who was called in to make the diagnosis rather than over a longer period of time. . . . [The "chairman of the Judiciary Committee in Florida"] said the courts have been exhausted, and that all of the court decisions and the court cases had not been based on the facts because the facts were very limited and were the conclusions of one judge and two neurologists, and that was it, and that there were, in terms of the affidavits--I will get the exact number that I read--there were something like 34 affidavits from other doctors, who said that she could be improved with rehabilitation.

Sen. Frist also disagreed with neurologist Ron Cranford's conclusions on patently political grounds: "I should also note that the court sided with the testimony of Dr. Ronald Cranford, who is an outspoken advocate of physician-assisted suicide."  I don't agree with Cranford on the PAS issue, either, but he'd be my first choice if I were looking around for a neurologist to diagnose PVS.

A number of medical and ethics experts express their surprise in the Post article that a physician would proffer a diagnosis (or disagree with one) based on a family's videos and without conducting a physical exam.

As for the allegedly slim basis upon which Terri's diagnosis is based, consider this excerpt from In re Schiavo, 851 So. 2d 182 (2nd DCA 2003) (No. 2D02-5394), rehearing denied (July 9, 2003), review denied 855 So. 2d 621 (Fla. 2003):

On remand, we permitted the parents to present evidence to establish by a preponderance of the evidence that the judgment was no longer equitable. We specifically held:

To meet this burden, they must establish that new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex--significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures.

Schiavo III, 800 So. 2d at 645.

In order to minimize disputes between the parties, this court's last opinion also provided guidance to the guardianship court concerning the nature of the hearing to be held on remand. We required an additional set of medical examinations of Theresa Schiavo and the selection of no more than five physicians to provide expert testimony on the issue presented. We instructed that one of the five physicians must be a new, independent physician selected either by the agreement of the parties or, if they could not agree, by the appointment of the guardianship court. We indicated that this physician should be board certified in neurology or neurosurgery, with expertise if possible "in the treatment of brain damage and in the diagnosis and treatment of persistent vegetative state." 800 So. 2d at 646.

On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.  Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions.  He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue.  These therapies cannot replace dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state.  Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with her mother. The three other physicians all testified that Mrs. Schiavo was in a permanent or persistent vegetative state. The guardianship court was most impressed with the testimony of Dr. Bambakidis, who concluded that Mrs. Schiavo remained in a permanent vegetative state.

The guardianship court determined that Mrs. Schiavo remained in a permanent vegetative state. The guardianship court concluded that there was no evidence of a treatment in existence that offered such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo it at this time. Having concluded that the parents had failed to meet their burden to establish, by a preponderance of evidence, that the judgment was no longer equitable, the guardianship court denied the motion for relief from judgment and rescheduled the removal of the hydration and nutrition tube.

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