HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Monday, March 21, 2005

Schiavo Update

1. The trial judge hasn't yet ruled on the Schindler family's request (see Complaint) that their daughter's feeding tube be reinserted pendente lite, but court-watchers at the hearing believe he's sensitive to the time constraints under which the litigation is being conducted.

2.  Dahlia Lithwick has a perceptive piece on the federal law (S.686) in Slate.

3. The NY Times had two good articles whose interest transcends the particulars of the Schiavo case. One was in yesterday's Week in Review ("For Parents, The Unthinkability of Letting Go")and the other appeared today ("The Dying: New Openness in Deciding When and How to Die").  [tm]

March 21, 2005 | Permalink

Family as Surrogate Decisionmaker

Shepherdl_1 Lois Shepherd, D'Alemberte Professor, Florida State College of Law, has written a timely article concerning family members as surrogate decisionmakers for end-of-life medical care.  The article is entitled, "Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family." Her article alllows one to step back from the Schiavo debate for a minute and consider why family members should be making these life and death decisions for an incompetent family member/patient and whether they make these hard decisions based on what the patient's wishes are or their own.  Professor Shepherd provides an intelligent overview of various bioethics issues involved in the Schiavo case and combines her expertise with an empathy that is missing from some of the current public debate surrounding Terri Schiavo's situation.  The abstract is below:

In the Terri Schiavo case, different family members who want the legal authority to make decisions for Terri Schiavo have sought different treatment options - with results as opposed as life and death. Had the case not come before the courts, Michael Schiavo, Terri's husband, would have had Terri's feeding tube removed long ago; Terri's parents, Mary and Robert Schindler, if either had been named surrogate in Michael's stead, would continue feeding her indefinitely. Recognizing, as the Schiavo case highlights, that who among family members speaks for the patient can determine the course of treatment or non-treatment for a patient, it is necessary to turn renewed attention to the question of why families, whether we define them as spouses or parents, are involved in the end-of-life decisionmaking of their relatives. Are they merely a representative or even fiduciary of the patient or are they stakeholders in their own right? Do we look to family members as surrogates because they ensure a sounder process, a neutral process, for determining patient preferences and interests, or do we look to family members as surrogates because we recognize that families want to be (and perhaps should be?) involved? This paper argues that some deference to family members' own interests can be justified on the grounds of a broad notion of patient self-determination, but some degree of deference might also be justified out of respect for family members' own interests. Our law should not demand strict neutrality of these family members, but should acknowledge that their interests may have value as well. At the same time, there must be limits: the family's preferences and interests should not be allowed to overshadow those of the patient. 

You can find the full article here.  If you enjoy this article, Professor Shepherd is co-author on a forthcoming Bioethics and the Law textbook from Aspen Publishing.  You may want to look for it in 2006.  I think it will be a wonderful resource as well as providing excellent and thoughtful teaching material.  [bm]

March 21, 2005 | Permalink

Sunday, March 20, 2005

Nikolouzos Case Winds Down

KHOU.com is reporting tonight (free registration required) that Sprio Nikolouzos had been transferred to an unnamed facility in San Antonio, thus ending the legal battle that had pitted St. Luke's Hospital against his spouse, who adamantly opposed the withdrawal of life support from the patient, who has been in a persistent vegetative state since 2001.  [tm]

March 20, 2005 | Permalink

Schiavo: The World Is Watching

No matter which side you're on in the Schiavo case (or no side at all), there's little doubt that the world is watching as the political establishment works through the issues (and measures the political advantage) posed by this case.  Google News shows 3,664 related stories, compared to these runners-up in press coverage at 11:00 p.m. EST:

  • 815 stories on Vijay Singh's failure to win at Bay Hill
  • 590 stories on the possible link between the Qatar theater bombing and Al Qaeda
  • 584 stories on the earthquake in Japan
  • 458 stories on  Fernando Alonso's win in the Formula One Malaysian Grand Prix
  • 414 stories on the death of auto maverick John DeLorean
  • 402 stories on Kofe Annan's plan to reorganize the UN
  • 401 stories on the Michael Jackson trial

[tm]

March 20, 2005 | Permalink

US House is Debating the Senate's Schiavo Bill

At 9:01 p.m. (EST) this evening, the House received notice that the Senate had passed S. 686 (I am guessing it's the bill whose text is on Sen. Frist's web site and which is set out in an earlier post; so far, there's no text on the Library of Congress or GPO web sites).  Debate began at 9:30 p.m.  You can follow the progress of proceedings on the floor of the U.S. House of Representatives here.  I'll post the Congressional Record pages as soon as they are available (Monday).

ADDENDUM: Here are the House debates:

http://thomas.loc.gov/cgi-bin/query/D?r109:9:./temp/~r109FSMsZ5::: Cong. Rec., H1700-1728 (vote)

http://thomas.loc.gov/cgi-bin/query/D?r109:14:./temp/~r109FSMsZ5::: Cong. Rec. H1731-1735 (extension of remarks

[tm]

March 20, 2005 | Permalink

Text of Compromise Schiavo Bill Released

Sen. Frist has posted a link on his web page to the text of the compromise bill that the House will try to vote on tonight or tomorrow morning.  It differs from the engrossed version of S. 653 by deleting the latter's "Stay" provision (Section 5) and by adding a final section calling for the Congress to look into the need for legislation "regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care."

Here's the full text:

IN THE SENATE OF THE UNITED STATES

introduced the following bill; which was read twice
and referred to the Committee on

           _____________________________

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

1 Be it enacted by the Senate and House of Representatives of the United
2    States of America in Congress assembled,
3    SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE                  
4    SCHIAVO
5 The United States District Court for the Middle District of Florida shall 
6    have jurisdiction to hear, determine, and render judgment on a suit or claim by 
7    or on behalf of Theresa Marie Schiavo for the alleged violation of any right of
8    Theresa Marie Schiavo under the Constitution or laws of the United States 
9    relating to the withholding or withdrawal of food, fluids, or medical treatment
10   necessary to sustain her life.
11   SEC. 2. PROCEDURE.
12 Any parent of Theresa Marie Schiavo shall have standing to bring a suit
13   under this Act. The suit may be brought against any other person who was a
14   party to State court proceedings relating to the withholding or withdrawal of
15   food, fluids, or medical treatment necessary to sustain the life of Theresa
16   Marie Schiavo, or who may act pursuant to a State court order authorizing or
17   directing the withholding or withdrawal of food, fluids, or medical treatment
18   necessary to sustain her life. In such a suit, the District Court shall determine
19   de novo any claim of a violation of any right of Theresa Marie Schiavo
20   within the scope of this Act, notwithstanding any prior State court
21   determination and regardless of whether such a claim has previously been
22   raised, considered, or decided in State court proceedings. The District Court
23   shall entertain and determine the suit without any delay or abstention in favor
24   of State court proceedings, and regardless of whether remedies available in
25   the State courts have been exhausted.
26   SEC. 3. RELIEF.
27 After a determination of the merits of a suit brought under this Act, the
28   District Court shall issue such declaratory and injunctive relief as may be
29   necessary to protect the rights of Theresa Marie Schiavo under the
30   Constitution and laws of the United States relating to the withholding or
31   withdrawal of food, fluids, or medical treatment necessary to sustain her life.
32   SEC. 4. TIME FOR FILING.
33 Notwithstanding any other time limitation, any suit or claim under this
34   Act shall be timely if filed within 30 days after the date of enactment of this
35   Act.
36   SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.
37 Nothing in this Act shall be construed to create substantive rights not
38   otherwise secured by the Constitution and laws of the United States or of the
39   several States.
40   SEC. 6. NO EFFECT ON ASSISTING SUICIDE.
41 Nothing in this Act shall be construed to confer additional jurisdiction on
42   any court to consider any claim related--
43  (1) to assisting suicide, or
44  (2) a State law regarding assisting suicide.
45   SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.
46 Nothing in this Act shall constitute a precedent with respect to future
47   legislation, including the provision of private relief bills.
48   SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION   
49   ACT OF 1990.
50 Nothing in this Act shall affect the rights of any person under the Patient
51   Self-Determination Act of 1990.
52   SEC. 9. SENSE OF THE CONGRESS.
53 It is the Sense of Congress that the 109th Congress should consider
54   policies regarding the status and legal rights of incapacitated individuals who
55   are incapable of making decisions concerning the provision, withholding, or
56   withdrawal of foods, fluid, or medical care.

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March 20, 2005 | Permalink

Another Right to Die Case Working Way Through Courts in Texas

Spiro Nikolouzos has been diagnosed in a persistent vegetative state since 2001.  He is ventilator-dependent and receives artificial nutrition and hydration through a feeding tube.  On March 7, the Houston Chronicle reported that his hospital had invoked the Texas Advance Directive Act  (ch. 166 of the Health and Safety Code) and determined that further treatment would be medically inappropriate and would be discontinued in 10 days unless another facility agreed to accept his transfer.

The next day, the Chronicle reported -- misleadingly and even inaccurately, as far as I can tell -- that the patient's hospital cited "[a] patient's inability to pay for medical care combined with a prognosis that renders further care futile [as] two reasons a hospital might suggest cutting off life support."  What the hospital's chief medical officer appeared to say, however, was that it would be difficult to find a hospital or other facility that would be willing to accept a patient with such a bleak prognosis who was also unfunded.  Lack of funding was not cited by the CMO as a reason for his hospital to discontinue life-sustaining treatment.

Since then, the Nikolouzos case has bounced from trial court to one Houston appellate court and then to another Houston appellate court and back to trial court.  The bottom line (as reported in Friday's Chronicle) is that the patient's family has been given until Wednesday to produce proof that a hospital or nursing home has agreed to accept Mr. Nikolouzos.  Failing that, it would the hospital's prerogative under the Texas statute to discontinue life-support (presumably his mechanical ventilator). [tm]

March 20, 2005 | Permalink

Schiavo Update

1.  Congress. The House leadership tried to get a voice vote on S. 653 today, but Democrats objected, which means a roll call vote (and a demonstrable quorum of at least 218 members) will have to be assembled before the next vote.  According to the AP (courtesy of ABC News), that roll call vote could be held as early as 12:01 a.m. Monday.  Members of the House -- which went on recess in the middle of this past week's scramble to pass a bill that would get the Schindlers into federal court -- are flying in from around the world to make the vote happen.  Reuters reports that Majority Leader Frist says the Senate is prepared to pass the bill if it passes the House.  Presumably, however, that would only be necessary if the House were to pass an amended version of S. 653, which already passed the Senate on a voice vote last Thursday.

2.  The President. Reuters reports that the president is en route to Washington to be available to sign the bill, if it passes, into law.

3.  What's Next.  If the bill passes in the House, the President has already announced his intention to sign it.  Once it is law, the Schindlers will have 30 days within which to commence their federal suit.  They will no doubt file immediately, seeking declaratory and permanent injunctive relieve.  The can also be counted upon to file motions for a preliminary injunction and (more immediately) for a temporary restraining order, which can be granted by the district court ex parte. It seems likely that such an order will be granted if only to "preserve the status quo" -- i.e., keep Terri Schiavo alive -- and to preserve the court's jurisdiction until Michael Schiavo can be heard in opposition to a preliminary injunction and can file an answer or dispositive motion. 

After that, anything can happen.  The district judge may conclude that S. 653 is unconstitutional and dissolve the (by then) preliminary injunction.  The district court may or may not stay its own dissolution order.  Emergency appeal to the 11th Cir. (and, if the district court did not dissolve its own dissolution order, an emergency motion to stay the district court's order).  Etc. etc.

Or the district may deny motions to dismiss and rule that the statute is constitutional.  (Follwed by an interlocutory appeal to the 11th Circuit?)  Start scheduling discovery.  Set trial date. Etc. etc.

Under either scenario, the Schindlers will have obtained what they most wanted - delay.  To what end?  In addition to keeping their daughter alive for a while longer, it will give the Florida legislature another chance to agree on a bill that would make it unlawful to withhold or withdraw artificial nutrition and hydration from a patient without a living will or other directive clearly evidencing his or her wishes to to receive ANH.  Last week, they weren't able to do that.  The Florida House passed H. 701 but the Senate failed to pass S. 804 (further action deferred on Thursday and Friday).  [tm]

March 20, 2005 | Permalink

Saturday, March 19, 2005

House, Senate Reach Agreement on Schiavo Bill

Reuters reports this afternoon that House and Senate members have agreed on a legislative strategy that will produce a bill that will either (pick your version) "restore nutrition and hydration to Miss [sic] Schiavo" (per Tom DeLay) or "put Schiavo's case into federal court") (per "a Democratic aide" - probably Sen. Harry Reid's spokesman, Jim Manley).  A vote in the House -- apparently to approve S. 653 (GPO's PDF version), the bill previously passed in the Senate -- could occur later today.  You can track the action on S. 653 here

Here's the text:

109th CONGRESS
1st Session

S. 653

--------------------------------------------------------------------------------

AN ACT
For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. STAY.

Upon the filing of a suit or claim under this Act, the District Court may issue a stay of any State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo pending the determination of the suit.

SEC. 6. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 7. NO EFFECT ON ASSISTING SUICIDE.

Nothing is this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--

(1) to assisting suicide, or

(2) a State law regarding assisting suicide.

SEC. 8. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing is this Act shall constitute a precedent with respect to future legislation.

SEC. 9. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self-Determination Act of 1990.
Passed the Senate March 17, 2005.

Attest:

Secretary.

March 19, 2005 | Permalink

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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March 19, 2005 | Permalink

Saving Medicaid

On Thursday evening, the Senate rejected the $15 illion budget cut that President Bush has proposed for Medicaid and instead passed an amendment protecting the Medicaid program from future budget cuts.  According to the American Health Lawyers Association press reports,

Instead of the cuts, the amendment calls for the creation of a bipartisan commission to conduct a comprehensive review of the Medicaid program to determine how to improve efficiencies in service delivery and quality of care. The commission would have fourteen months in which to hold public hearings, conduct its evaluations and deliberations, and issue its report and recommendations to the President, Congress, and the public.

For further information about the amendment and 2006 budget, please click here. [bm]

March 19, 2005 | Permalink

Dr. Death - Infant Euthanasia

The New York Times has a profile of Dr. Eduard Verhagen, one of the Dutch physicians who has advocated euthanasia for certain disabled infants.   The article tries to explain why the doctor believes as strongly as he does in his viewpoint concerning this issue.  Unfortunately he receive lots of hate mail from America and he finds it astonishing some of things people say about him, especially since they have never met him. 

Speaking of people who are receiving unwanted and mostly negative attention, the New York Times on Thursday ran a front page story on Judge Greer, the judge who has had the Terri Schiavo case for over 7 years.  It is a great story about a thoughtful , interesting  and courageous Judge who has had to leave membership in his church and travel under guard.  [bm]

March 19, 2005 | Permalink

Behind-the Scenes Lobbying Effort on Behalf of Terri Schiavo

This morning's Miami Herald has an interesting story on the efforts of Gov. Jeb Bush (disappointed by the state legislature's inability to enact a law that would provide further legal support for Terri Schiavo's parents) to enlist the aid of Sen. Mel Martinez and conservative political groups:

''I'm not sure we can get it done here in Florida,'' Martinez quoted Bush as saying just after a new Schiavo measure stalled in the Florida Legislature.  "Do whatever you can federally." * * *

Senate Majority Leader Bill Frist and House Speaker Dennis Hastert said Friday evening that they were disappointed with Friday's court decisions allowing the feeding tube to be removed, and they vowed to work through the weekend to prolong Schiavo's life.

The dizzying flurry of congressional activity is largely a response to a relentless push by conservative Christian groups -- using e-mail ''action alerts'' and persistent lobbying -- and the personal involvement of Frist and House Majority Leader Tom DeLay, R-Texas.

''I've never seen anything like this in Congress over an individual case,'' said Jayd Henricks, lobbyist for the Family Research Council, one of the groups battling to keep Schiavo alive by challenging state court orders.

The congressional strategy of House subpoenas and Senate "invitations" to testify didn't deter the trial judge or the physicians and administrators, and late Friday, the Supreme Court denied the House Committee on Government Reform's request for a stay (reported in the press but not yet posted to the Court's on-line 'Orders and Journal' page).  [tm]

March 19, 2005 | Permalink

Notes on Judge Greer

Jeff Spike, associate professor in the Department of Medical Humanities and Social Science at Florida State, sent in a few observations on the trial judge in the Terri Schiavo case, George W. Greer of Pinellas-Pasco Circuit Court, who is currently being vilified by some of the supporters of her parents' efforts to keep her alive:

1.  First, I think Judge Greer has uttered a classic line:  "The fact that you -- your committee -- decided to do something today doesn't create an emergency,"

2.  This Judge has been an exemplar of careful and patient work with this case for six years now.  He is the one who has heard all the testimony and has stood up to tremendous pressure within Florida and now from Congress.

3.  He is a graduate of Florida State undergraduate and law school.  (A plug.)

4.  He is a very religious church-going Baptist, and a Republican.

5.  He had the strangest roommate in college.  A guy named Jim Morrison.  (The latter transferred from FSU to somewhere in Southern California after some legal problems.)

[tm]

March 19, 2005 | Permalink

More Academic Commentary on Congress' Schiavo-related Actions

Saturday's New York Times has a good article on the probably unconstitutional, and certainly abusive, subpeonas and "invitations" issued by House and Senate Republican leaders in the day leading up to the removal of Terri Schiavo's feeding tube.  Some of the more notable quotes:

  • "It's simply outrageous," said Charles Fried, a law professor at Harvard who served as the solicitor general in the Reagan administration. "It is abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense."
  • "I can't think of any parallels," said Laurence H. Tribe, a law professor at Harvard who often supports liberal positions.  "McCarthy, for all his abuses, did not reach out and try to undo the processes of a state court," Professor Tribe said, referring to Senator Joseph McCarthy, whose cold war hearings into communism were widely viewed as Congressional overreaching.  "The federal statute that makes it a crime to interfere with witnesses presupposes that there is some valid exercise of legislative power," Professor Tribe said. "It would be hard to think of one here."  He continued: "It's Congress trying to change the decisions of the state judiciary and violating the purposes of federalism. It's Congress trying to deprive someone of an adjudicated right by political edict in violation of due process of law."
  • "[T]he long-term care of incapacitated adults]  is "an absolutely legitimate subject for inquiry," said Patrick O. Gudridge, a law professor at the University of Miami. The "tricky question," he continued, is whether keeping Ms. Schiavo alive would aid that inquiry or even be relevant to it.  "Congress is pushing the outer edge of the envelope here," Professor Gudridge said.
  • "You cannot issue a subpoena that interferes with a constitutional right," said Arthur Miller, an expert on civil procedure at Harvard, referring to what he said was Ms. Schiavo's right to die. "It's a blunderbuss. It smacks of desperation."
  • Arthur L. Caplan, the chairman of the department of medical ethics at the University of Pennsylvania, said the Schiavo case had already received ample scrutiny. "It has to be the most extensively litigated right-to-die case in the history of the United States," Professor Caplan said.

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March 19, 2005 | Permalink

News Updates on Schiavo Case

Bloomberg and Reuters have good updates on the status of the Schiavo saga. 

March 19, 2005 | Permalink

Friday, March 18, 2005

Con Law Profs on the House Subpoena and Senate "Invitation" to Terri Schiavo

As mentioned below, the chair of the House Committee on Government Reform has subpoenaed Terri Schiavo and the chair of the Senate Committee on Health, Education, Labor & Pensions has invited her to testify on health policy and the incapacitated.  The reason appears on Sen. Frist's website: They want to intimidate her physicians and hospice administrators.

Some legal commentary on these moves by Congressional Republicans is starting to surface (AP story, 4:29 p.m., EST):

Several legal analysts doubted courts would have allowed the congressional effort to stand.

``It's of dubious legality,'' said Seth Kreimer, a constitutional law professor at the University of Pennsylvania. . . .

Kreimer said the subpoenas were particularly questionable after the full Congress failed to pass legislation. Congress is charged with passing laws that the courts enforce, not issuing subpoenas that interfere with court orders, he said.

A subpoena ordering the hospice to keep her on life support would really fall under the authority of the courts, while the subpoena to Schiavo may be an improper intimidation tactic since Terri Schiavo clearly is unable to testify, said Laurence Tribe, a Harvard law professor.

``People should remember once we establish precedent where two congressional committees by issuing subpoenas can upset the determinations of a court, it could cut both ways,'' he said. ``A physician administering a unique treatment to keep someone from dying could be stopped if the majority thinks that's unnatural.''

Joseph W. Little, a constitutional law professor at the University of Florida, said it appears GOP leaders are trying to twist the law.

``It certainly extraordinary that an individual case could give rise to this kind of activity,'' he said. ``We have to assume there's some broader political agenda, with little legal grounds behind it.''

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March 18, 2005 | Permalink

Schiavo: Congress Gets Serious

Senate Republicans have invited Terri Schiavo and her husband to testify on March 28.  According to Bloomberg News, "Senate Health, Education, Labor and Pensions Committee Chairman Mike Enzi sent a letter to Schiavo and husband Michael, her legal guardian, asking them to appear at a March 28 hearing to 'review health-care policies and practices.'"  The purpose appears to be to put the physicians and hospital administrators at legal risk if they remove Terri Schiavo's feeding tube, which Florida trial judge George Greer again authorized today (see AP story, 3:29 p.m. today).  As Senate Majority Leader Bill Frist put it on his website today: "Federal criminal law protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness’ attendance or testimony.  More specifically, the law protects a witness from anyone who -- by threats, force, or by any threatening letter or communication --influences, obstructs, or impedes an inquiry or investigation by Congress. Anyone who violates this law is subject to criminal fines and imprisonment."

In a similar move, on the House side Speaker Hastert, Majority Leader DeLay, and Government Reform Committee chairman Tom Davis today issued this joint statement:

The Committee on Government Reform has initiated an inquiry into the long term care of incapacitated adults, an issue of growing importance to the federal government and federal healthcare policy. The committee’s inquiry arises out of the case of Terri Schiavo, who is currently being kept alive in a hospice in Florida. Later this morning, we will issue a subpoena, which will require hospice administrators and attending physicians to preserve nutrition and hydration for Terri Schiavo to allow Congress to fully understand the procedures and practices that are currently keeping her alive. The subpoena will be joined by a Senate investigation as well.

This inquiry should give hope to Terri, her parents and friends, and the millions of people throughout the world who are praying for her safety. This fight is not over.

If there's any doubt that Terri Shiavo has become a political football, Peggy Noonan's "OpinionJournal" piece for the on-line Wall Street Journal should dispel it.  Here's just a small portion of what Ms. Noonan heaps up:

In America today all big stories have three dimensions: a legal angle, a public-relations angle and a political angle. In the Schiavo case some of our politicians seem not to be fully appreciating the second and third. This is odd.

Here's both a political and a public-relations reality: The Republican Party controls the Senate, the House and the White House. The Republicans are in charge. They have the power. If they can't save this woman's life, they will face a reckoning from a sizable portion of their own base. And they will of course deserve it.

This should concentrate their minds.

So should this: America is watching. As the deadline for removal of Mrs. Schiavo's feeding tube approaches, the story has broken through as never before in the media.

I wonder what Terri Schiavo would say about that.  [tm]

March 18, 2005 | Permalink

The Federalization of the Schiavo Case: All 3 Branches Weigh In

If the 1,627 hits for "Schiavo" on today's Google News site doesn't prove that this case has taken on a life of its own, how about the simultaneous involvement of all three branches of the federal goverment?

After the House passed its relatively broad bill to provide federal district courts (anywhere) with removal jurisdiction over any suit by or on behalf of incapacitated patients in which the withholding or withdrawal of artifical nutrition and hydration was at issue (see below), the Senate on Thursday passed S.653 by voice vote (the relevant pages of the Congressional Record are not yet available).  The text of the bill is here (PDF).  This much narrower bill gives one federal district court (for the Middle District of Florida) jurisdiction to hear a case brought by Terri Schiavo's parents (who are granted standing to sue) to challenge the lawfulness of a state court decision authorizing the removal of their daughters feeding tube.

Reuters reports that Republican leaders are talking about reconvening on Monday (despite the scheduled start of a two-week recess) to reconcile the two competing bills.  Three House leaders (Speaker Hastert, Majority Leader DeLay, and my college classmate and fraternity brother Tom Davis (chair of the Government Reform Committee)) announced plans to subpoena hospital administrators and attending physicians to explain themselves to Congress.  They also said a Senate investigation is planned.

Across the street, SCOTUS denied the parents' request for a stay (PDF) of the state court's order (allowing removal of Terri's feeding tube) pending their filing and the Court's disposition of a petition for certiorari.

And President Bush offered his own thoughts on the matter in this statement:

The case of Terri Schiavo raises complex issues. Yet in instances like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. Those who live at the mercy of others deserve our special care and concern. It should be our goal as a nation to build a culture of life, where all Americans are valued, welcomed, and protected - and that culture of life must extend to individuals with disabilities.

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March 18, 2005 | Permalink

Free Teleconference on Hospital Infection Reporting

HOSPITAL INFECTION REPORTING:  SCIENCE AND POLICY CONSIDERATIONS

A TELECONFERENCE

Wednesday, March 30, 2005

2:00-3:30 p.m. EST

Presented by

PUBLIC HEALTH LAW ASSOCIATION

PUBLIC HEALTH AND POLICY INTEREST GROUP

HEALTH LAW SECTION

AMERICAN BAR ASSOCIATION

The presenters are leaders addressing the development of laws and
guidelines for the reporting of hospital infections:

Lori H. Spencer, Moderator

Sutherland Asbill & Brennan LLP

President-Elect, Public Health Law Association

Representative Bob McCluskey

Colorado State Rep, District 52

Author, House Bill 1128 (pending)

Discussion: Policy Considerations on Passing Legislation

David Carvalho

Deputy Director, Office of Policy, Planning, and Statistics

Illinois Department of Public Health

Discussion:  Implementation of Mandatory Reporting

Lisa McGiffert

Director, Stop Hospital Infections Project

Consumers Union
Discussion:  Model Legislation for Mandatory Reporting and
the Status of the National Campaign to Stop Hospital Infections

Patrick J. Brennan, M.D.

Professor of Medicine, University of Pennsylvania School of Medicine
Chief, Healthcare Quality and Patient Safety, University of Pennsylvania Health System
Chair, Healthcare Infection Control Practices Advisory Committee

Discussion: Recent Guidelines Issued by CDC’s Healthcare Infection Control Practices Advisory Committee
CLE Credit
1.5 hours of CLE credit in 60-minute states/1.8 hours of CLE credit in 50-minute states have been requested in states accrediting ABA TeleConferences.*
NY-licensed attorneys:

This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 total NY CLE credits.

*States currently not accrediting ABA TeleConferences: DE, IN, PA, KS, OH

REGISTER BY MARCH 28TH -- Registration is complimentary

Telephone ports are limited, so please register by March 28th.  Registration ensures that you are guaranteed a telephone port and that you receive any necessary materials prior to the call.  To register, please contact Kate McCarthy, with CDC’s Public Health Law Program, at kmn1@cdc.gov.

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March 18, 2005 | Permalink