HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Saturday, March 26, 2005

Schindlers Announce Abandonment of Federal Appeals

After yesterday's 11th Cir. rejection of the emergency stay request by Terri Schiavo's parents, the Schindlers filed another request for emergency relief with state judge Geroge Greer.  The motion was based upon three allegations:

  1. Affidavits from attorney Barbara Weller and Suzanne Vitadamo stating that they observed Terri Schiavo attempt to repeat the words "I want to live" (with the sounds "ahhhhhhh" and "waaaaaaaa").  The affidavits were executed March 22 and allege this "conversation" occurred on March 18, days before the filings in federal and state trial courts this week.
  2. An affidavit from an inventor whose device (in the words of Judge Greer) "would allegedly allow permit a person such as Terri Schiavo to communicate 'using the modulated equivalent of prevocalized thoughts' which would then be translated into words using pattern recognition software. It is clear that this device is for persons with cognitive ability whose ability to vocalize is lost.  Terri Schiavo is just the opposite."  Moreover, the inventor offered no opinion as to the likelihood of success if his invention were deployed.
  3. An affidavit from a physician stating that Terri Schiavo might benefit from hyperbaric therapy, a suggestion that was litigated and decided in 2002.

At 11:45 a.m. (EST) today, Judge Greer denied the Schindler's motion.  Meanwhile, the Schindlers were reported to be undecided about whether to challenge Judge Greer's ruling and to have decided against any further federal appeals. [tm]

March 26, 2005 | Permalink

A Tale of Two Mothers

What seems mostly lacking from the response of Congress to the ordeal of Michael Schiavo and the Schindlers over his nontreatment decision for his wife, Terri, is recognition that these decisions are, sadly but inevitably, daily events around the country.  In round numbers, there are 2.5 million deaths in the U.S. each year (see Table 99).  Eighty percent of those occur in an institutional setting, and eighty percent of those deaths (or roughly two-thirds of the national total) occur after an explicit decision to withhold or withdraw life-saving or life-sustaining treatment.  State laws, similar if not identical to the Florida law under which Michael Schiavo made his decisions for his wife, lay out the ground rules for such decisions: who can decide, what are the standards for such decisions, what combination of physical and mental impairment will trigger the process, which treatments can be refused and which ones cannot.  The comments of Tom DeLay and many others in the House last weekend during the debate over S. 686 -- if taken at face value and not as mere political posturing -- betrayed their surprise over the legal developments in the states over the past 20 years and a surprising ignorance of the difficult choices that are made every day in the legislators' home states.  They might start their remedial education on this subject with an article in today's L.A. Times about the decisions of two mothers whose children lie in a persistent vegetative state -- no demonizing, no moralizing, no grandstanding, and no litigating, just quiet, dignified parental decision making we all hope will never come to us as parents.  [tm]

March 26, 2005 | Permalink

Congratulations to Professor Cerminara

Professor Kathy L. Cerminara, Associate Professor of Law at the Nova Southeastern University Shepard Broad Law Center,l appeared on CNN's Inside Politics yesterday afternoon to discuss the Terri Schiavo case.  She did an excellent job and health law professors should be proud.  Professor Cerminara provided a clear, insightful and intelligent overview of the Terri Schiavo case and the variety of opinions that seem to hit us daily from the Florida and federal courts.   I have found the transcript on-line at westlaw for those of you who missed the show.  Thanks again to Professor Cerminara for her excellent work in this area.

Professor Mayo has linked to Professors Cerminara and Kenneth Goodman timeline before but in case you missed it - here is the timeline of the Schiavo case with links to the important filings and court rulings.   SCOTUSblog has an update and explanation as well on the most recent court filings and decisions.  [bm]

March 26, 2005 | Permalink

Friday, March 25, 2005

Schiavo Documents

If you are interested in assigning part of the Schiavo case to your class, or merely attempting to keep track of the various motions that have been filed over the past week, Findlaw has complied a helpful website entitled, Terri Schiavo Case:  Legal Issues Involving Health Law Directives, Death and Dying.

Thanks to Joe Hodnicki for the tip.  Joe runs the the Law Librarian Blog, an informative and fun blog that I highly recommend.  [bm]

March 25, 2005 | Permalink

Thursday, March 24, 2005

Upcoming Health Law Transactions Conference

If you are going to be in Chicago during mid-April, and you have an interest in health law transactional work, this conference might be helpful to you.  (This conference is for all you health law corporate attorneys/professors who are ready to consider aspects of heath law beyond the Schiavo case).

Thanks to Jim Tomaszewski for the cite. [bm]

March 24, 2005 | Permalink

Schiavo Cases Update

The Supreme Court refused to hear the Schindler's appeal concerning their daughter Terri Schiavo.  The Justices did not issue a legal opinion explaining the reason for their decision and there was no written dissent either.

The New York Times also reports on the judiciary's role in this saga.  And, MSNBC has a terrific question and answer session with the Rev. John J. Paris, a Professor at Boston College and a jesuit, who provides a slightly different Catholic perspective on the Schiavo case.  [bm]

March 24, 2005 | Permalink

Wednesday, March 23, 2005

Supreme Court and Bioethics

The Supreme Court may be reviewing more than its fair share of bioethics issues this week.  It is unclear how the Court will treat the Terri Schiavo case - although some commentators seem to believe that the Court will not act to review the case.   If that isn't enough excitement, tomorrow the Court will decide whether to grant review to a challenge to Idaho's abortion law which contains a medical emergency exception.  The case, Wasden v. Planned Parenthood of Idaho, concerns Idaho's abortion statute that permits minors to obtain an abortion without parental consent or judicial bypass if a medical emergency exists.  The Ninth Circuit Court of Appeals found the law unconstitutional because the definition of "medical emergency," as well as other terms within the statute, were too narrow and did not encompass all conditions in which a woman's life or health would be threatened. [bm

March 23, 2005 | Permalink

America's Reaction to Schiavo Case

CBS News has a poll that shows that a fairly large majority of Americans (66%) oppose re-inserting Terri Schiavo's feeding tube.  It also shows that a similarly-sized majority (61%) would prefer that the Supreme Court not hear the case.  I must admit, I have been a little worried about how Americans are viewing our health care system during this time with so many angry charges and counter-charges on the airwaves.  Thus, I found this poll reassuring because I was concerned that Americans would want to re-write all of the "right-to-die" jurisprudence.  [bm]

March 23, 2005 | Permalink

11th Circuit Denies Schindlers' Request for Emergency

A 3-judge panel of the U.S. Court of Appeals for the Eleventh Circuit decided this morning, by a 2-1 vote, that they would not overrule the order of District Judge James Whittemore denying the parents of Terri Schiavo an injunction to reinsert her feeding tube.  (The opinion is here -- the download from the Court's overloaded web server takes a very long time.  FindLaw, which is an increasingly invaluable resource for primary documents, has it here -- much faster than the court's site.)

As reported by the Associated Press:

In a 2-1 ruling early Wednesday, a panel of the 11th Circuit Court of Appeals in Atlanta said the parents "failed to demonstrate a substantial case on the merits of any of their claims" that Terri's feeding tube should be reinserted immediately.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the ruling said. "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law."

In his dissent, Judge Charles R. Wilson said Schiavo's "imminent" death would end the case before it could be fully considered. "In fact, I fail to see any harm in reinserting the feeding tube," he wrote.

Twice rejected by the federal courts since Congress' enactment of extraordinary legislation last weekend, the Schindlers are now going to the U.S. Supreme Court, which has refused their request for emergency interventions 3 times before (Bloomberg News).  [tm]

March 23, 2005 | Permalink

Tuesday, March 22, 2005

Two Important Articles from NEJM on Schiavo

As far as I can tell, the New England Journal of Medicine has posted two articles on its website for free download by anybody.  (I am a subscriber, so it's possible that I am getting to them because of a cookie, but it doesn't appear that I am logged in as a subscriber when I am accessing the articles.)  These are important pieces, Web-posted a month before their scheduled appearance in the print version of the medical journal:

[tm]

March 22, 2005 | Permalink

Federal Judge Rules: No Reinsertion of Terri Schiavo's Feeding Tube

Judge Whittemore's opinion and order denying the Schindlers' request for preliminary injunctive relief is here.  ABC reports that they have filed their notice of appeal to the US Court of Appeals for the 11th Circuit.

March 22, 2005 | Permalink

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.

[tm]

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