Patterico's Pontifications

4/17/2005

Schiavo Original Documents and Testimony

Filed under: Schiavo — Patterico @ 11:32 am



I have discovered a fascinating resource for those still interested in the facts of the Terri Schiavo case. It is a website that contains much original material from the case, including documents and transcripts of testimony that I haven’t seen anywhere else.

There are excerpts of Michael Schiavo’s testimony at the trial over her wishes, here. The excerpts contain all of his direct testimony, and the beginning of the cross-examination. Here are some of the excerpts I found interesting:

Page 27:

To your knowledge, while living with

10 Terri, did you know whether or not she ever had an

11 eating disorder such as anorexia or bulimia?

12 A I did not. No. There was speculation

13 made to that, but there was nothing ever proven in

14 court as to that diagnosis.

Page 60:

18 Q I think you testified that you told

19 Mr. Schindler that you gave your money away?

20 A Yes. I did.

21 Q Was that a correct statement?

22 A No. It was not.

23 Q Why did you say this?

24 A Just basically to shut him up because he

25 was screaming.

Pages 61-62:

13 Q did you ever tell the nursing home not

14 to give the Schindlers information on Terri’s

15 medical condition?

16 A At one point, yes.

17 Q Why did you do that?

18 A When Terri was in the hospital for, I

19 believe a urinary tract — no. I forget what she

20 was in the hospital for. It was for some

21 hospitalization. And the Schindlers never showed

22 up or even called about her care.

23 Q Did you change your position about

24 giving the Schindlers access to medical

25 information?

62
1 A Yes. I did.

2 Q Looking back on it, was that a moment

3 that you are proud of?

4 A No. I was not. It was done. It was

5 emotions running. I was angry.

Page 62-63:

21 Q Did you ever have a conversation or make

22 a statement about her coming out of the coma?

23 A I made a mention to Mr. Schindler one

24 day out in the hall. I said, this was after

25 probably four or five years of Terri being in this

63
1 condition, I said to him maybe it was in Terri’s

2 best interests. It was not feasible to come out

3 and find out you are going to be a quadraplegic

4 and you can’t walk anymore.

Page 8 contains this statement from Felos’s opening statement:

2 You will hear disputed evidence as to

3 the cognition of Theresa Schiavo. I am sure you

4 will hear evidence by the respondent that they

5 believe Theresa is aware of their presence.

6 However, it is important for the Court to remember

7 that that is really a non issue in this case. The

8 major issue in this case is what Terri’s intent

9 was.

(We actually agree about that.)

Also, there are excerpts of Michael Schiavo’s testimony in the malpractice lawsuit. Here are some interesting excerpts from his deposition:

12 Q Have you — other than the fact that she

13 opened her eyes at the time she left Humana, have you

14 noticed any change in your wife’s condition at all

15 between the time she left Humana and today, July 27,

16 1992?

17 A Very, very little.

18 Q And what very little — very, very little

19 change have you noticed?

20 A She’ll respond to noise, she’ll respond to

21 pain, and that’s it.

And from his trial testimony in the malpractice case, we have Schiavo’s narration of a 1992 video depicting Terri Schiavo’s state at that time, at page 17:

9 Tell the jury what’s going on now.

10 A. Right here, basically, you can see she’s dressed,

11 she’s already had her shower and everything. We would get

12 her dressed, put her shoes and socks on. I’m trying out her

13 hands there. You have to keep the inside of the hands,

14 since she’s contracted, you have to keep them dry because

15 infection can set in, and I usually do a little bit of range

16 of motion with her.

17 Q. And while you’re doing that, do you talk to her?

18 A. Yes, I am talking to her right now telling her

19 it’s okay.

20 Q. She doesn’t like that very much?

21 A. No, she doesn’t. She does feel pain.

Page 23:

8 Q. Does she express discomfort when some of these

9 things are happening to her?

10 A. Yes. Yes, she does.

11 Q. How does she do that?

12 A. She’ll moan and groan.

Pages 26-28:

16 Q. Michael, have you started to go to nursing school?

17 A. Yes, I did.

18 Q. Where did you go to nursing school?

19 A. I’m going — I’m attending St. Pete Junior

20 College.

21 Q. When did you start?

22 A. Approximately a year ago.

23 Q. When do you hope to finish?

24 A. We’re looking at something like 1994.

25 Q. Why did you want to learn to be a nurse?

___
27

1 A. Because I enjoy it and I want to learn more how

2 to take care of Terry.

3 Q. You’re a young man. Your life is ahead of you.

4 Your future is beyond you. Up the road, when you look up

5 the road, what do you see for yourself?

6 A. I see myself hopefully finishing school and taking

7 care of my wife.

8 Q. Where do you want to take care of your wife?

9 A. I want to bring my wife home.

10 Q. If you had the resources available to you, if you

11 had the equipment and the people, would you do that?

12 A. Yes, I would, in a heartbeat.

13 Q. How do you feel about being married to Terry now?

14 A. I feel wonderful. She’s my life and I wouldn’t

15 trade her for the world. I believe in my — I believe in my

16 wedding vows.

17 Q. What do you mean? You want to take a minute?

18 A. Yeah.

19 MR. WOODWORTH: If the Court would let us take a

20 minute.

21 Q. (BY MR. WOODWORTH:) You okay?

22 A. Yeah. I’m sorry.

23 Q. Have — you said you believe in your wedding vows,

24 what do you mean by that?

25 A. I believe in the vows that I took with my wife,

___
28

1 through sickness, in health, for richer or poorer. I

2 married my wife because I love her and I want to spend the

3 rest of my life with her. I’m going to do that.

I don’t mean to mock the man by quoting this. This is testimony from 1992, and (to my knowledge) his first affair was five years after his wife collapsed, in 1995. I just think it makes interesting reading to see what he told a jury in 1992 about his hopes and plans for Terri Schiavo’s recovery.

If you’re still interested in the case, go poke around. I’ve only begun to read what’s there. I have written the site’s proprietor to ask where she got this information, and why it is incomplete.

101 Responses to “Schiavo Original Documents and Testimony”

  1. […] o; 18 on A Legal Argument Why the Federal Courts Should Have Granted the Schiavo InjunctionPaul Dei […]

    Patterico's Pontifications » 2005 » April » 18 (0c6a63)

  2. Why would you agree with this:

    The major issue in this case is what Terri’s intent was.

    ?

    So if I say, “Damn, I’d rather die than lose 30 IQ points.” Once I test 30pts lower, you’ll feel free to put me down?

    What if I change my mind? Why is it anyone’s business to put me down in the first place?

    Paul Deignan (85f319)

  3. Because, the major issue in the case was what Terri’s intent was.

    If the Schindlers had presented enough evidence to convince Greer that Terri would have preferred to live in her condition, they would have prevailed.

    There has been much discussion as to whether or not a feeding tube constitutes “artificial life support.” In the Nancy Cruzan case the Supreme Court established the precedent that a feeding tube is life support, no different from a ventilator.

    To answer your hypothetical question, if you lost 30 IQ points you would still be able to function without life support. You can’t withdraw life support if you are not on life support.

    Dennis Mosher (83211b)

  4. The major issue in this case is what Terri’s intent was.

    The kind of examples that are commonly touted are more like, even if she did say, she does not want to be on a machine, but, feeding tube is not a ventilator and thus not a machine. But Florida law says I think, feeding tube like hers is life support. Its a statutory definition.

    What puzzles me is the way Greer gleaned her intent as the “machine”. Primarily there were 5 witnesses and maybe some lesser ones, with 2 from Schindlers and 3 from Schiavos.

    The Schindlers evidence that of her mother Mary Schindler and Diane Meyer her good friend, were more or less considered unreliable because Greer seemed to think they were making up the testimony. Both witnesses referred to events of Karen’s father waging a court battle to remove Karen’s ventilator. The court allowed it but Karen surprisingly lived even without the ventilator for another 9 years, though Karen was also on feeding tube. Her father did not remove her feeding tube.

    Greer was taken in by the use of the present tense, when Diane Meyer referred to college day incidents of discussion on Karen with Terri. That would make Terri 19 , a good age to make her mind on such issues. Meyer evidence suggests Terri did not agree with Karen’s father to remove life support.

    Because Mary Schindler went first before Meyer [ I think its in that order] she also said at first Terri was 19 but when opposing counsel showed newpsapers that showed the date of the court battle, Mary Schindler admitted and agreed that Terri would be 12 then.

    Based on this, Greer also formed the idea that Meyer would also be referring to discussion with Terri when Meyer was having summer holiday with Schindlers family when Terri was 12.

    This error on date of death of Karen was realised 5 years after the order by Greer of 2000. Greer had chance to reverse his order by accepting testimony of Meyer, but he explained that it made no difference. The error was just the date of Karen’s death, there was in other words, no error as to his view that Meyer did not discuss this issue with Terri when they were 19 in college, but that they discussed it when they were in early teens , age 12, on summer holiday together when the Karen case was waged in court room.

    Some have said the error is fatal, but reading Greer’s explanation in his new order, it seems the error is not fatal.

    I back track to add, that Greer also deduced Meyer is not reliable witness because during her deposition her memory was bad but at trial it was too excellent. So if we keep this in mind, then, the error as to date of death itself is not fatal, if Greer still did not think that Meyer could have discussed this Karen case in present tense with Terri when they are 19, as discussion at age 19, would not allow the discussion to be discussed in present tense. It would be talking of the case in past tense.

    It also seems that Karen died 3 years after the purported Meyer’s 19 years old discussion, which means that it cannot also be a discussion in the present tense, on Karen’s death.

    But more importantly if the discussion and Terri’s dismay was Karen’s father wanting to remove Karen’s ventilator, that discussion in the present tense can only take place when Terri is 12, when the court room events were in the newspaper.

    Yi-Ling (b6bca8)

  5. #2,3

    Guys, your missing the absudity of the question as posed.

    Paul Deignan (85f319)

  6. # 4

    And you are missing the seriousness of the allegation that error as to date of death of Karen is fatal to Greer’s finding of Terri’s wish!

    I have put forth a reading, for critique that this error is not fatal. I would like to hear anyone challenging this and proving me wrong. :-)

    Yi-Ling (b6bca8)

  7. Yi-Ling,

    The absurdity is that it doesn’t matter. People are free to change their minds without penalty.

    Paul Deignan (85f319)

  8. #6

    The absurdity is that it doesn’t matter.

    I am not sure what that means :-)

    People are free to change their minds without penalty.

    If you are referring to Terri changing her mind, between 19 in community college[ assuming if Meyer evidence is credible and had been accepted by Greer] and after marriage to Michael, where her views had changed, then, a way to look at it is

    (1) last view prevails, given that we often think the last will and testament in time, prevails.
    (2) depends on the kind of examples given and discussed- which example discussed by Terri closes fits her case – (a) Karen with ventilator and feeding tube (b) Terri’s grandmother on ventilator for a week or so before she died, if memory does not fail me (c) Joan Schiavo’s baby who was taken off ventilator [ here comparing infant baby with adult Terri]

    Greer did not at all venture into comparing the different types of examples. Nor did Greer consider remarks made at a country club after Terri’s grandmother funeral at a table, where someone starts off saying, I wouldn’t like to be in her place [ her refers to Terri’s deceased grandmother] and others echo the same song. Terri’s echo of this, is not evaluated as polite table talk. Nor was Terri’s echo of the rightness of Joan Schiavo’s conduct of lifting off the ventilator off her infant baby, as expressing sympathy of an action already done. It would be unheard of anyone to say otherwise at that time after the life support had been removed from the baby, and the mother is in grief.

    Yi-Ling (b6bca8)

  9. Yi-Ling,

    It means that irregardless of how you feel about something today, tomorrow you might think differently. If tomorrow is now today and I want to do something for you that you would wish, I had better ask you today rather than rely on what you said yesterday, especially if there may be no more tomorrows for you after today.

    Paul Deignan (85f319)

  10. Paul Deignan,

    It means that irregardless of how you feel about something today, tomorrow you might think differently. If tomorrow is now today and I want to do something for you that you would wish, I had better ask you today rather than rely on what you said yesterday, especially if there may be no more tomorrows for you after today.

    Is this a light hearted non Terri case relevant pun or a relevant Terri case statement about her wish under Florida Statute Chapter 756 Advanced Health Care Directives?

    Yi-Ling (804ac8)

  11. Yi-Ling,

    It’s the same point I originally made.

    My next iteration will be in the form of a Limerick.

    Paul Deignan (da25f8)

  12. Paul Deignan

    My next iteration will be in the form of a Limerick.

    A light humorous, nonsensical, or bawdy verse of five anapestic lines usually with the rhyme scheme aabba.

    OK, waiting for this bawdy verse aabba:-)

    Yi-Ling (804ac8)

  13. There once was a hottie named Jude.
    Propositioned by all sorts of dudes
    Of a new beau she said, “I’d rather be dead”
    Which he recalled once it suited his mood.

    Paul Deignan (da25f8)

  14. You got aabb, but tis’ aabba, you missed out the last “a”

    Yi-Ling (9d70c9)

  15. You got aabb, but tis’ aabba, you missed out the last “a”

    Yi-Ling (9d70c9)

  16. Yi Ling,

    a
    a
    bb
    a

    Again:

    There once was a moron named Greer
    who issued an edict quite clear:
    “The tube ye shall pull, or your head it will roll”
    Past tense is present perfect, my dear.

    Paul Deignan (c368f6)

  17. There once was a hottie named Jude.
    Propositioned by all sorts of dudes
    Of a new beau she said, “I’d rather be dead
    Which he recalled once it suited his mood.

    Paul Deignan (c368f6)

  18. If one starts out with an IQ of 85 and drops to 55, they may not need a “machine” per se to continue their life, but they would probably need the assistance of another human, akin to one needing assistance to be spoon feed or have fluid in a tube a few times a day.
    What terri expressed as her desire is/was important, who a suitable guardian is /was another issue, clarification of opposing medical testimony is/was important, and while we are talking about court proceedings and the legal questions, talking about the ethical issues would be yet another area, as not all that is legal is ethical (and maybe sometimes the opposite).

    MD in Philly (b3202e)

  19. MD,

    Wishes in the past are not relevant to the present unless that person formalizes those wishes to the point of becoming a contract. The living will is essentially such a contract to protect the estate for the heirs for the consideration of whatever the would-be heirs might provide the person on the understanding that certain measures within public policy would not be pursued to sustain life.

    The fallacy is that a past prediction or wish can be a present intent. It is not. We only accept that fiction to a degree because it serves the above purpose and additionally, puts the signator on notice (thus they are called “living wills”).

    Pain and suffering can already be eased by drugs, so that is not the issue.

    Again, “wishes” are a fiction.

    What did you wish you were doing today? I bet events did not unfold precisely as you wished. Did you wish to read this?

    Paul Deignan (c368f6)

  20. I agree that past wishes are not a guarantee of present desire, and I find “living Wills” to be of little use, with much greater utility in a living durable power of attorney and a primary physician that knows the patient (in these days of HMO panels not an assumed thing). No, things did not unfold as I woshed today, and while reading this is a fine thing, the timing is a little to be desired, which leads me to the following direct question, “What are you getting at?” That even if there is agreement on what she said at some point in the past in an offhand moment it has little bearing?

    MD in Philly (b3202e)

  21. In answer to the last question, yes.

    It must be this way. Otherwise we live our lives on a lease from those in authority until the day comes when some “witness” can substitute their wishes for ours.

    Paul Deignan (c368f6)

  22. The fallacy is that a past prediction or wish can be a present intent. It is not. We only accept that fiction to a degree because it serves the above purpose and additionally, puts the signator on notice (thus they are called “living wills”).

    I think this legal fiction, or best guess can be resolved by statutory provisions that the default provision is to remove life support, unless the patient pays wholly for the cost of life support.

    In addition to issues of ethics, is too, the issue of economics. The default statutory provision would resolve this, in fvaour of economics saving.

    Terri’s case [albeit at a great sacrifice of us not really knowing whether she is really in a PVS, thpough legal fiction aside, I think it is her wish not to be a machine and thus not life support] has created enough awareness for relevant wishes to be written down or conferred on someone else known to the patient, and if these two things are not done, then the default statutory provision should prevail.

    Yi-Ling (15340f)

  23. What terri expressed as her desire is/was important, who a suitable guardian is /was another issue, clarification of opposing medical testimony is/was important, and while we are talking about court proceedings and the legal questions, talking about the ethical issues would be yet another area, as not all that is legal is ethical (and maybe sometimes the opposite).

    To add to your list, is economics and cost of maintaining patient on life support to patient and family and state /federal funds. The number of such patients the total cost of maintenance, besides time cost of family visiting patient daily. These should be deliberated upon rationally and addressed in relevant state laws, as in Florida, the Fla. Browning case & Curzan SCOTUS case, probably spinned the Florida Statutes on Advanced Health Care Directives.

    I do not like to kill even insects and value all sentient life form, more so, humans being the pinacle, but there is a need to address economic issues nonetheless.

    What bothers me of Terri’s case, is the uncertainty surrounding the facts, with one set of facts in court room and another set of facts floating outside the court room – media, talk shows, talk radio, internet, newspapers, etc, which then sets up people against one another, yelling at each other, about either “you are cruel to see how live like a veg” or “you are cruel to kill her when she is alive and has moments of cognition”.

    Yi-Ling (15340f)

  24. Pain and suffering can already be eased by drugs, so that is not the issue.

    I do not know about that. IF I am not mistaken, the idea that she will not suffer pain with feeding tube removed was considered important. Underlying that maybe, she is cognitively aware if she can feel pain, and that she will not feel pain, is in line with she is not cognitively aware, and thus she is in a PVS.

    Later when tube was removed, there were provisions to give her some pain killer, was it morphin? This shows the idea she will not suffer pain was wrong and this was used by ant-tubists.

    Yi-Ling (15340f)

  25. I think this legal fiction, or best guess can be resolved by statutory provisions that the default provision is to remove life support, unless the patient pays wholly for the cost of life support.

    Fortunately for many babies, we live in a more humane society. BTW, the Schiavo example is counter undermines “living wills” as it was demonstrated that the court/judicial tryants in charge do not respect the presence or absence of living wills (as we saw directly in the MM case).

    Yi-ling, what ought to bother you is the complete disregard for facts shown by the court and the fact that this judge actually ordered her death. No MRI, no swallow test, no clear and convincing anything. This was an execution by judicial fiat.

    Paul Deignan (004dbd)

  26. Fortunately for many babies, we live in a more humane society.

    With advance of science, this issue will loom in the future even more. Life support was never an issue as it is now, 100-200 years ago. Science changes that.

    If you read the reports of the number of patients in a PVS, and if you extrapolate that to the future numbers and if you count the cost, and if you weigh against the economy, you might see a perspective. The degree to which this is assimilated, will depend on several factors, but there will be traces of this thought. Even if you do not, it will be a factor, said or unsaid with policy makers. Maybe its the legal fiction, that we can infer another’s intent or wish from passing statements made to others, without written evidence of such wish. Maybe its not setting the standard at beyond reasonable doubt, but at clear and convincing standard. Maybe that’s why two people even argue it should be just “good faith” standard and not even clear and convincing standard.

    Reading the links Patterico just provided on the facts, I gather the Schindlers went bankrupt. If it arose from costs of taking care of Terri, then this would be one example of cost to patient and family. It could happen to anyone, any family without sufficient insurance coverage or court award for medical practice of colossal sum.

    BTW, the Schiavo example is counter undermines “living wills” as it was demonstrated that the court/judicial tryants in charge do not respect the presence or absence of living wills (as we saw directly in the MM case).

    If you can say that you know how the case was argued in court and what were the facts before the court, I will bite. What I notice is that, there seems to be one set of facts in court room and another set of facts outside court room. Your facts could be the out of court room facts. One example of what I mean, is that I see it commonly touted that, Greer made the ruling based on hearsay evidence of Michael alone. That is wrong, because it assumes hearsay is wrong legally. It is not in such cases. It is also wrong because, there were two other witness, Michael’s brother Scott and his sister in law from another brother, Joan. It is also wrong, because it does not mention that court found the evidence of Schindlers side not reliable. It also does not explain why the Schindlers evidence was not considered reliable. On the issue of whether the Greer error on date of Karen’s death is fatal or not, I first accepted the views of those who think it is fatal, and echoed them on findlaw, and later revised them and admitted my revised view. I changed my mind after independently reading the explanatory order of Greer. The only question that is a bit open to me, is , the affidavits of the nurses, which I think was not heard as testimony in court, but dealt with on the surface, where Greer mentioned that, if true, it means there is a lot of people involved in the cover up. I think in the course of justice, which needs not only to be done but also seen to be done, there should have been a hearing on the nurses testimony and cross examine them, so that we know if they are credible witnesses or not. If I am wrong about there having been no hearing, please tell me.

    Yi-ling, what ought to bother you is the complete disregard for facts shown by the court and the fact that this judge actually ordered her death.

    While I take issue with some of the facts, on others I concede to the court process/legal process.

    No MRI, no swallow test, no clear and convincing anything. This was an execution by judicial fiat.

    I do not have a firm opinion of the MRI test. On the one hand, I gather that the MRI of 1990 shows some brain damage, and the CT scan 1996 shows big damage but CT scan is like old diagnostic tool and so is not as reliable as MRI or PET scan. The gripe is that the second MRI post 1996 was not allowed. I take this as a fact that should have tilted the balance and negated clear and convincing evidence or allowed a rehearing. What bothers me, is that, this fact was not raised in the hearing of the 3:2 doctors. This is a serious issue where best medical evidence is not provided in court by Schindlers. Say Dr Cheshire is excellent and Mayo clinic in Florida is of excellent repute, why were they not involved at the time of 3: 2 doctors. By 3:2 , I meant, Greer asked Schiavos and Schindlers to appoint two doctors to testify and agree on last appointment and in absence of appointment, court appoints and court did so appoint. If you read the court order on the findings of the testimony of the 3:2 doctors, I do think you will agree with me that, based on that court room facts, she is not in a PVS. If other facts appear outside the court room, what can the court do? Our hands are tied to the extent that we do not have X-Rays eyes where we can play God and see the truth beneath all the shadow play, and make the right verdict. We rely on court rooms.

    Yi-Ling (db55e7)

  27. Yi-Ling,

    I appreciate your point that the state cannot be compelled to pay endlessly for medical treatments. We ought to define openly what is and is not an obligation of the state in that respect.

    This case is something different as the state actually intervened to cause death. That is something that never should have happened. This breaches the sovereignty of the individual and turns our constitutional relationship between people and state on its head. I have a fundamental problem with that.

    Paul Deignan (004dbd)

  28. I appreciate your point that the state cannot be compelled to pay endlessly for medical treatments. We ought to define openly what is and is not an obligation of the state in that respect.

    I appreciate your giving me the opportunity to explain the economic concerns. I particalry wanted to draw Philly’s attention to that, given his deep interest with bioethics.

    This case is something different as the state actually intervened to cause death. That is something that never should have happened. This breaches the sovereignty of the individual and turns our constitutional relationship between people and state on its head. I have a fundamental problem with that.

    That statement assumes that Greer erred in law and/or in facts. I know there are high sounding constitutional arguments that fly over my head, but I think it boils down to, on the face of it, did Greer make such a goof over the findings of fact or the interpretation of the law.

    With that, what fact or law, do you think Greer goofed on, that it then, amounts to a higher abstraction of principles as “This case is something different as the state actually intervened to cause death. That is something that never should have happened. This breaches the sovereignty of the individual and turns our constitutional relationship between people and state on its head.”

    Yi-Ling (db55e7)

  29. Yi-Ling wrote: “If you read the court order on the findings of the testimony of the 3:2 doctors, I do think you will agree with me that, based on that court room facts, she is not in a PVS.”

    If you read the transcript of the 2002 trial, you will find that of the “2” doctors, 1 was a radiologist with little or no experience diagnosing PVS. The other, a neurologist, used physical stimuli to activate primitive reflexes that are well known to occur in patients with upper motor neuron syndrome, but he attributed the responses to Terri following spoken commands. Certain primitive reflexes like the Babinski are suppressed when the developing central nervous system acquires control over voluntary movement, and the re-emergence of these reflexes is actually used to demonstrate loss of voluntary control later on in life. So the exam could almost equally be used to demonstrate that she would respond to the physical stimuli whether she wanted to or not, and thus voluntarily following a spoken command would have been out of the question.

    So the 2002 trial was really more like 3:1, but even the 1 could almost be eliminated for said reasons. Additionally, he presented himself to the Schindler legal team having seen the story in the news, possibly so that he could gain prestige and direct monetary reward by by treating Terri in his cash-up-front clinic; a conflict of interest could be inferred.

    Dom Rodavre (a4242f)

  30. If you read the transcript of the 2002 trial, you will find that of the “2″ doctors, 1 was a radiologist with little or no experience diagnosing PVS.

    Until I came across this http://codeblueblog.blogs.com/codeblueblog/2005/03/codeblueblog_is.html from/via Xrlq/Patterico, I also wondered why a non neurologist was called.

    When I look at a CT of the brain every case is a new mystery about a patient Idon’t know. I must look at the images, come to a conclusion, dictate my findings and report a conclusion. This becomes a part of the official legal record for which I am liable. I bill Medicare for a CT interpretation and am paid for this service.

    Neurologists do not do this. They don’t go on the record, alone, in written legal documents stating their impressions about CT’s of the brain. The neurologist doesn’t get sued for making a mistake on an opinion of a CT of the brain THE RADIOLOGIST DOES.

    Before, I thought too, why did the Schindlers call in a radiologist? Reading that link, made me realise that they are the experts at reading CT scan. That at least makes some sense, why a radiologist, and not a 2nd neurologist.

    The other, a neurologist, used physical stimuli to activate primitive reflexes that are well known to occur in patients with upper motor neuron syndrome, but he attributed the responses to Terri following spoken commands. Certain primitive reflexes like the Babinski are suppressed when the developing central nervous system acquires control over voluntary movement, and the re-emergence of these reflexes is actually used to demonstrate loss of voluntary control later on in life. So the exam could almost equally be used to demonstrate that she would respond to the physical stimuli whether she wanted to or not, and thus voluntarily following a spoken command would have been out of the question.

    A bit too deep for me, a non medical person. I am lost in the wood of medical words. :-)

    So the 2002 trial was really more like 3:1, but even the 1 could almost be eliminated for said reasons.

    Explain please.

    Additionally, he presented himself to the Schindler legal team having seen the story in the news, possibly so that he could gain prestige and direct monetary reward by by treating Terri in his cash-up-front clinic; a conflict of interest could be inferred.

    Yes, he is the guy who is this Nobel Prize Nominee, nominated by some politician than by fellow scientists. Greer dealt with that, but that is irrelevant if his medical opinion is up the mark.

    Good people step forward later. Dr Cheshire. Was it too late?

    Yi-Ling (37f289)

  31. Good people step forward later. Dr Cheshire. Was it too late?

    The link of Dr Cheshire affidavit http://www.floridabaptistwitness.com/chesireaffidavit.pdf

    3:2 decision link
    http://www.geocities.com/purple_kangaroo_angela/schiavo2002trial/trialctorder11-02greerverdict.html

    Yi-Ling (37f289)

  32. Yi-Ling,

    I’m going further than saying that Greer goofed. I think he (the state) had absolutely no business intervening with the presumption that the state has the constitutional power to decide if a person should live or die (minus an indictment by peers for a capital offense).

    The state should only be there as a protector of the weak in this case. It does not have the authority to judge worthiness to live or to put itself as a better judge of a person’s wishes than the person themself.

    Schiavo should never have been allowed to use the apparatus of the state to murder his wife. That includes the court.

    If you are interested, there are a couple posts at my blog discussing this view in more detail.

    Paul Deignan (b56a14)

  33. I’m going further than saying that Greer goofed. I think he (the state) had absolutely no business intervening with the presumption that the state has the constitutional power to decide if a person should live or die (minus an indictment by peers for a capital offense).

    I am afraid I do not understand this at all. I do not understand because I see it as
    (1) people of Florida chose their legislature
    (2) Florida legislature pass a law Chapter 756 Advanced Health Directives to deal with this type of cases
    (3) Greer’s probate court, hears cases under this Florida statute
    (4) people who disagree, as did Schindlers and Schiavos turn to the Florida probate court to resolve the matter for them . They do not use force to settle the dispute.
    (5) Greer settled the matter for them in 2002 but Schindlers not happy with the outcome
    (6) Schindlers eventually turned to organisaitions and this eventually escalated into a big public issue
    (7) Florida legislature got involved . Congress got involved. Courts worried about intrusion into separation of powers. etcetra….

    Based on the above, I do not understand , what’s wrong with following state law and using state courts, unless it is grossly obvious error of finding of fact or law.

    I would have thought clemency would have been the best way out. Thats my personal view.

    Yi-Ling (482494)

  34. Yi-Ling,

    I should have provided a reference link to the background post. Here it is: Terri Schiavo: The Source of Our Sovereignty.

    The gist of the argument is that if this is a nation of the people (where the sovereignty of the nation is derived from the natural sovereignty of the people), then a construct of the people cannot by its own discretion terminate its creator.

    Paul Deignan (b56a14)

  35. Schiavo should never have been allowed to use the apparatus of the state to murder his wife. That includes the court.

    While a doubt exists in my mind as to whether she is in a PVS, and I lean towards thinking there is no clear and convincing evidence that she is in a PVS, I cannot say for certain that she is not in a PVS.

    Because I cannot say for certain she is not in a PVS, her death cannot for certain be murder. I would not say she is murdered, but that, if we had the opportunity for a rehearing we might have found that she is not in a PVS, but then, again with the rehearing, we might also have found that she is in a PVS.

    If we had found on rehearing she is in a PVS, that cannot be murder.

    This report by Father Rob http://www.nationalreview.com/comment/johansen200503160848.asp appeals to me, though I am told not to take it as a point by point technical rebuttal. There is 1 error there brought to my attention and that is, Fr Rob says there has been no MRI at all, but it seems there was one in 1990, except that, then the brain damage was partial and question of deterioration of the brain as shown by less superior technique of CT scan, would have been better resolved by more superior technique of MRI . Then again as Dr Cheshire in his affidavit posted above, says, even an MRI need not be conclusive of whether in a PVS or not.

    So all these IFs and IFs , I would not say it is murder :-)

    Yi-Ling (482494)

  36. Your link: Clearly it is not possible for Judge Greer to know Terri’s wishes under the present circumstances

    If Shiavos and Schindlers had not disagreed, and pretend that both sides agreed that Terri would not want to live like that, is that okay with you?

    If yes, then, pretend they disagree and ask a third party to decide for them, is that okay with you?

    To give greater force of legitimacy to this third party, the people of Florida decided through their representatives to make a law that the probate judge shall be the third party, is that okay with you?

    Where did I lose you? or where did we part company?

    Yi-Ling (482494)

  37. Yi-Ling,

    You realize, I hope, that you have just said that killing a person is not murder unless one can prove that a person is not PVS.

    That is not the American way of looking at people. By our Constitution, the 5th Amendment states that a person must be indicted of a capital offense and rendered due process before his life can be taken by the state.

    Paul Deignan (b56a14)

  38. If Shiavos and Schindlers had not disagreed, and pretend that both sides agreed that Terri would not want to live like that, is that okay with you?

    No, for the reason that a person is sovereign. My life does not belong to anyone else. The only one that can state their wishes is that person at that given instant in time. Even bridge jumpers often have a change of heart once they are peering into the abyss. Free will allows us to change our minds, thereby allowing us to be sovereign.

    Even if an unindicted person was to plead to the state, “Kill me now!”, I would object as it cannot be the function of the state to eradicate its creators minus the aforementioned provision which was ratified by “the people”. Under due process, it is actually the people executing a fellow IAW an agreement that that individual has voluntarily consented (which is in part the rationale for not executing the mentally disabled of juveniles).

    Paul Deignan (b56a14)

  39. You realize, I hope, that you have just said that killing a person is not murder unless one can prove that a person is not PVS.

    sigh :-)

    That is not the American way of looking at people. By our Constitution, the 5th Amendment states that a person must be indicted of a capital offense and rendered due process before his life can be taken by the state.

    Maybe this is the missing link, or overlapping layer – where the federal review comes in with federal standards. BUT, that aside, Due Process is obtained when Florida legislature passes the law Chapter 756 on dealing with such cases. Probate court heard the case and it was in accordance with law, save the big question whether there was such gross error of fact or law, that there should have been a de novo hearing.

    Hypothetically if we had today, 80,000 Terri type of cases before the probate courts of each of the states, are we saying state laws on this cannot be applied?

    I thought Curzan which went up on appeal from Missouri dealt with this in SCOTUS, 1990, that, the standard of proof is clear and convincing evidence. Patterico mentioned some refinement to that, let’s see what he said

    Cruzan explicitly provides clear guidance as to which of these standards of proof is required under the Due Process Clause: the “clear and convincing standard.” Cruzan dealt with the issue of whether the State of Missouri could constitutionally require clear and convincing evidence that a person in a persistent vegetative state would want to die by having nutrition and hydration withdrawn. Cruzan does not hold that the “clear and convincing evidence” standard is required, because that issue had not been placed squarely before the Court

    Are we now on the same page with Curzan? :-)

    Yi-Ling (482494)

  40. Yi-Ling,

    As I said, an indictment by a Grand Jury is also required. Due process also requires that one be able to confront their accusers, to testify in their own defense, and to have a trial by peers among other things.

    These basics of due process were denied Terri. Her murder was judicial homicide–an unlawful execution by the state.

    Paul Deignan (b56a14)

  41. Me: If Shiavos and Schindlers had not disagreed, and pretend that both sides agreed that Terri would not want to live like that, is that okay with you?

    You: No, for the reason that a person is sovereign. My life does not belong to anyone else. The only one that can state their wishes is that person at that given instant in time. Even bridge jumpers often have a change of heart once they are peering into the abyss. Free will allows us to change our minds, thereby allowing us to be sovereign.

    OK I now get it. You have very high standards :-) I do not set such high standards, primarily because I think that there has to be a degree of pragmaticism and cost saving. I also think legislatures are here to make such decisions for the people, to make lawful that which otherwise might be litigated as it was in Curzan on the constitutionality of Missouri statute on setting the standard for evidence of patient’s wish.

    You do not think legislatures have the right to do so. We part company there.

    I now get it you are saying that the concept of proxy deciding for any person in a PVS is just not on, whether its the family or the court. You are saying, no one can ever make that decision except the patient and if the patient did not leave a living will, then the patient means he /she wants to life with life support. PAUSE.

    What if patient left a power of attorney asking Jack or Jill to decide what’s best for the patient, is that okay with you?

    Yi-Ling (482494)

  42. As I said, an indictment by a Grand Jury is also required. Due process also requires that one be able to confront their accusers, to testify in their own defense, and to have a trial by peers among other things.

    You want Terri to testify for herself and only then there is Due Process? But she is not able to communicate her wishes. Shouldn’t there be some adjustments in such situation?

    Nothing is absolute. Abssolute standards cannot apply absolutely all the time :-)

    On the issue of jury, maybe, the legislatures should decide whether to leave it with the probate judge or the jury to decide on patient’s wish and medical condition. That is something the people can take up with their legislature in their own state. I concede to that point.

    Yi-Ling (482494)

  43. Yi-Ling,

    I agree with you that there are pragmatic constraints. These are in part addressed by the state and in part (the greater part) addressed by private individuals.

    I also believe that the state cannot decide all issues. My practicality it decides only some, but by necessity under our form of government, there are some issues that is cannot decide. The intentional taking of an innocent human life is one such example. Not only is this generically beyond the scope of our government, in this case it is explicitly prohibited by the Constitution (Amendments 5 and 14).

    So I agree with your assessment that we are in disagreement of this point.

    What if patient left a power of attorney asking Jack or Jill to decide what’s best for the patient, is that okay with you?

    Yes, as long as it is within public policy (i.e. a patient cannot have us comply with a request such as: “Chop my head off and eat my brains for dinner.”

    Paul Deignan (b56a14)

  44. Here is the text of the 5th Amendment:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    It requires the commission of a capital offense as agreed by an indictment of a grand jury.

    Paul Deignan (b56a14)

  45. These basics of due process were denied Terri. Her murder was judicial homicide–an unlawful execution by the state.

    There would be many other cases where the families and spouses decide to remove life support of their loved ones. You draw no distinction between family decision and court decision, and so, you would also have to say, these families, each one of them who partook in the mutual decision to ask doctor to remove life support are also as guilty as the court when it does take it upon itself to make that decision, as requested by the legislature :-)

    Gee that would be an awful number of murders then, by the application of your principles :-) I think it is an erroneous principle abstracting principles to absolutism and rendering it awkward for normal societal living where people delegate certain functions to different organs of government, legislature to make law, court to hear cases, etc …

    Yi-Ling (482494)

  46. The fifth amendment specifies the conditions under which a person may be executed, the ninth (together with the preamble) ensures that these are the only conditions under which the US government (to include the States) may execute a citizen.

    So, since there was no indictment, the state is not permitted to execute Terri.

    That is my logic.

    Paul Deignan (b56a14)

  47. There would be many other cases where the families and spouses decide to remove life support of their loved ones. You draw no distinction between family decision and court decision, and so, you would also have to say, these families, each one of them who partook in the mutual decision to ask doctor to remove life support are also as guilty as the court when it does take it upon itself to make that decision, as requested by the legislature :-)

    Actually, I am drawing quite a distinction between state and private distinctions (see above). The state protections of the individual in case of private actions rely on our criminal statutes, civil procedure, and public policy. The protections against state action are more stringent.

    Paul Deignan (b56a14)

  48. I agree with you that there are pragmatic constraints. These are in part addressed by the state and in part (the greater part) addressed by private individuals.

    If you agree with me limitations inherent in absolute principles, then we agree tather than disagree. Yet you say we disagree – that I cannot follow :

    So I agree with your assessment that we are in disagreement of this point.

    I also believe that the state cannot decide all issues.

    Can the state decide that it has 3 hands, one the legislature, another the court and third the executive?
    Can the legislature make laws taking into account science and development and PVS patients and Cruzan?
    Can the court hear cases that are supposed to be heard by them because the state laws says probate judge hears them when there is a conflict in the family whether to remove feeding tube?

    My practicality it decides only some, but by necessity under our form of government, there are some issues that is cannot decide. The intentional taking of an innocent human life is one such example.

    PVS patient is governed by state laws, if the state has passed it. After Cruzan, 1990, it is likely that each state would have passed theirs. Florida could have passed it earlier but the relevant section noted by the District Court of Appeal, 2nd District, on March 16, 2005 order, took note that the section was passed in 1997. Seven years after Cruzan.

    Not only is this generically beyond the scope of our government, in this case it is explicitly prohibited by the Constitution (Amendments 5 and 14).

    Constitution provides for the separation of powers and each with its own power. The state legislature was doing what was allowed under the state constitution. Under the federal constitution, Cruzan has addressed this point and gave it green light. So where is the missing link ? :-)

    So I agree with your assessment that we are in disagreement of this point.

    Yi-Ling (482494)

  49. BTW, as per Greer’s order. The murder of Terri was a state action.

    Paul Deignan (b56a14)

  50. Post No. 49 should have last line struck out as it is an oversight.

    So I agree with your assessment that we are in disagreement of this point.

    I hope we are in agreement now :-) Please…

    Yi-Ling (482494)

  51. Yi-Ling,

    The state is not all-powerful.

    As an absolute limit on its powers, it may not execute citizens outside of the Constitutional provisions of the 5th Amendment.

    It may not either conspire with private actors to execute its citizens outside of even greater restrictions. For example, it may allow someone to deny extraordinary life support (not feeding). That is different from ordering the denial of feeding as was done here.

    Paul Deignan (b56a14)

  52. So the PVS status is not relevant to this discussion as the execution was a state action. It would be relevant to the denial of extraordinary life-support by private actors with legal authority (consistent of course with statue, procedure, and public policy).

    Paul Deignan (b56a14)

  53. deny extraordinary life support (not feeding)= ordering the denial of feeding as was done here

    I see them as same effect or same . Tell me why and how they are different.

    As an absolute limit on its powers, it may not execute citizens outside of the Constitutional provisions of the 5th Amendment.

    We would have to read Cruzan to see how US Supreme Court decided on the constitutionality [ vis a vis federal constitution] of removing life support in that case. Maybe you can tell me how :-)

    Yi-Ling (482494)

  54. So the PVS status is not relevant to this discussion as the execution was a state action

    ?????????????????????????????????????????????????

    Last reading of the emergency application of Schindlers to SCOTUS did not seem to show up the non relevancy of this issue :-)

    Yi-Ling (482494)

  55. deny extraordinary life support (not feeding)= ordering the denial of feeding as was done here

    OK, I see where we missed each other. The Florida statute defines it such that remove feeding tube in such situation is withholding treatment.

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC401.HTM

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC101.HTM&Title=->2004->Ch0765->Section%20101#0765.101

    Section 765.101 (10) Definitions- “Life-prolonging procedure” means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

    Yi-Ling (482494)

  56. Yi-Ling,

    There was a discussion on this very cite in which I participated on the issue of state action in the Schiavo case.

    I think that is possibly the source of the confusion here.

    Terri Schiavo was executed explicitly under a direct and unambiguous court order (not decision) and enforced by the state.

    You may find the order at my site under the background information post.

    Paul Deignan (b56a14)

  57. You may find the order at my site under the background information post.

    Search mission returned empty handed. :-)

    Whats the crux of the issue of this state action?
    Was it raised by Schindlers in their SCOTUS appeal?

    Yi-Ling (482494)

  58. BTW, in my opinion that Florida statute is unconstitutional as eating/hydration is a necessary for all citizens (we were all infants once) irregardless of mental capacity.

    Thus, it is a generic violation of the right to life guaranteed by the preamble and 9th Amendment.

    Paul Deignan (b56a14)

  59. Here is the order. Please refer to the second to last paragraph.

    ORDERED AND ADJUDGED that absent a stay from the appellate court. 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.

    That is an execution order.

    Paul Deignan (b56a14)

  60. Yi-Ling wrote: “Until I came across this [codeblueblog link] I also wondered why a non neurologist was called. … Before, I thought too, why did the Schindlers call in a radiologist? Reading that link, made me realise that they are the experts at reading CT scan. That at least makes some sense, why a radiologist, and not a 2nd neurologist.”

    You were somewhat taken in by the radiologist who runs codeblueblog. A radiologist reads a CT scan, but so do neurologists. But PVS is not diagnosed from CT scans; it is diagnosed from a multitude of clinical observations and tests that can include CT, MRI, PET, SPECT, EEG, SSEP and other acronyms. 😉 So a radiologist who might in fact never see the patient or see the results of non-radiological tests might have little experience in diagnosing PVS.

    By the 2002 trial, the radiologist in question (Maxfield) had not diagnosed a case of PVS. In fact he was shown on cross to have an unclear understanding of the (then current) definition of PVS and coma. Therefore the score was reduced to 3:1 (to answer your subsequent query).

    I stayed clear of Hammesfahr’s “Nobel nomination” because I agree that it is to a certain degree irrelevant. To impeach his medical opinion on that basis would require demonstrating a pattern of deception or sloppiness in his advertising on the basis of putative Nobel status, then bootstrapping it to deception or sloppiness in all his pursuits.

    Felos subpoena’d Hammesfahr to bring to the trial the acceptance letter he claimed to have from the Nobel committee, but he did not do so because he said he lost it. There was some back-and-forth about who said (or wrote) what to whom about whom the Nobel committee notified about accepting the nomination (yikes!), ultimately coming down that congressman Bilrakis and/or his aide would have to testify or else too much of the impeachment would rely on inadmissible hearsay. So the issue did not get fully resolved.

    His medical testimony did get substantially refuted, though, by the 3 other neuroliginsts. I opine that if Felos had also been a neurologist, he could have ripped Hammesfahr a new one on the basis that he was either incompetent or deceptive. I saw many missed opportunities.

    Dom Rodavre (a4242f)

  61. Yi-Ling,

    Patterico and Xlrq have done a great analysis of the appellate court actions. I will defer to their analysis in answer to your question on whether this order was appealled or not.

    Paul Deignan (b56a14)

  62. Paul wrote: “BTW, in my opinion that Florida statute is unconstitutional as eating/hydration is a necessary for all citizens (we were all infants once) irregardless of mental capacity.”

    But Fla. statute 765.107 “(2) Procedures provided in this chapter permitting the withholding or withdrawal of life-prolonging procedures do not apply to a person who never had capacity to designate a health care surrogate or execute a living will.”

    So once you gain capacity to decide your medical treatment, you get to specify what that treatment shall be during subsequent incapacity. Therefore we may remove the children from the dabate.

    A “right to life” does not equate to a requirement to be medically force-fed against your expressed wishes.

    765.102 Legislative findings and intent.–
    (1) The Legislature finds that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. This right is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession [the due processes of which are described elsewhere in this statute].

    [paranthesis added]

    Has anyone heard of any constitutional challenge to Fla. statute 765?

    Dom Rodavre (a4242f)

  63. Dom,

    I still disagree with the constitutionality of that statute as it implies a positive duty on the citizen to secure an intrinsic (natural) right that is already theirs by the construction of the Constitution itself.

    In other words, I view this as a natural rights issue outside the scope of governmental authority.

    Paul Deignan (b56a14)

  64. BTW Dom, note that the state effectively decides capacity through the appointment of doctors.

    That’s a smoking gun.

    Paul Deignan (b56a14)

  65. But PVS is not diagnosed from CT scans; it is diagnosed from a multitude of clinical observations and tests that can include CT, MRI, PET, SPECT, EEG, SSEP and other acronyms. So a radiologist who might in fact never see the patient or see the results of non-radiological tests might have little experience in diagnosing PVS.

    Well assuming you did read the blog he says he has done 10,000 & he offers a bet that if from CT scans one can derive diagnosis of PVS, 6/10 correct, you win a fortune.

    This issue of CT scan has to be seen in context of answering anti-tubists who say, what do you need a second MRI for as there is 1 MRI in 1990 and a CT scan in 1996. That’s enough to show she is in a PVS. What we say is, CT scan is inferior to MRI.

    Clinical diagnosis I understand should also be longer period than 1 or few hours observation.

    That’s the point, because anti-tubists say that, why do you need a second MRI, since there is 1 MRI in 1990 and a CT scan in 1996?

    Yi-Ling (482494)

  66. In other words, I view this as a natural rights issue outside the scope of governmental authority

    Oh dear :-) Pretend we have 80,000 PVS patients and families cannot afford to maintain them on feeding tube, pay nursing care, pay hospices, and on verge of bankruptcy. They want to remove feeding tube, but Paul says, that’s murder. They are worried and run to probate court and ask for court order, and they get it. Now Paul says that court ordered execution.

    It just does not make sense.

    Yi-Ling (482494)

  67. I opine that if Felos had also been a neurologist, he could have ripped Hammesfahr a new one on the basis that he was either incompetent or deceptive. I saw many missed opportunities.

    Sounds like you are a neurologist? Care to evaluate Dr Cheshire’s affidavit linked at Post No. 31 and here again http://www.floridabaptistwitness.com/chesireaffidavit.pdf

    Yi-Ling (482494)

  68. BTW, in my opinion that Florida statute is unconstitutional as eating/hydration is a necessary for all citizens (we were all infants once) irregardless of mental capacity

    Cost of nursing care, who to pay? State, family?
    Turning over to prevent bed sores? Time to visit patient in hospices, taking away productivity time. We must be reasonable in having laws that strikes a median, a sensible pragmatic range and take into account other aspects of life that requires our individual and societal attention. :-)

    Yi-Ling (482494)

  69. Yi-Ling,

    The government in the US does not guarantee that everyone’s needs will be met. It cannot. It provides some support by mutual agreement and that is it. The ultimate person that is responsible for a person’s sustenance is that person (or their parent in the case of a child). This fact does not imply that the government can deny others from providing services that it cannot provide.

    Remember, I am speaking here to a specific case of judicial homicide (please read the order carefully). You are now discussing government policy.

    Paul Deignan (b56a14)

  70. Patterico and Xlrq have done a great analysis of the appellate court actions. I will defer to their analysis in answer to your question on whether this order was appealled or not.

    The Schindlers took the case on appeal. If you say it is wrong because it is state ordered exectution, I see it as not relevant, as it is within the power of one organ of the state, legislature to pass Florida Statute 1997 then touching on this issue, and it is also within the power of another organ of the state, the judiciary, to hear cases like this… and if this adds up to state ordered execution, what’s wrong with that?

    If we go by your understanding all state ordered execution is wrong, unless, there is a living will.
    To you, it would be wrong if there is NO living will but the family agreed to remove the feeding tube.
    To you, it would be wrong if there is NO living will and the family cannot agree to remove the feeding tube and go to court, and the court makes the order, and there is no public outrage like this case.

    You go further than most people because you see it as wrong in principle once there is no living will. Most people who see it as wrong see it as wrong because they are not satisfied with the quality of the evidence, but they accept that in other cases, without living will, where there is clear and convincing evidence, albeit oral evidence, it is okay.

    Is it so?

    Yi-Ling (482494)

  71. Please read this carefully:

    ORDERED AND ADJUDGED that absent a stay from the appellate court. 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.

    Paul Deignan (b56a14)

  72. The government in the US does not guarantee that everyone’s needs will be met. It cannot. It provides some support by mutual agreement and that is it. The ultimate person that is responsible for a person’s sustenance is that person (or their parent in the case of a child). This fact does not imply that the government can deny others from providing services that it cannot provide.

    May have lost you in your explanation, but do I get it that, you say now that money matters. So if they run out of money they are allowed to remove her feeding tube?

    Supposing there was no financial award from medical malpractice suit and the Schindlers and Schiavos went bankrupt from first few years of maintaining Terri? So money comes to play and does it make it right for them to remove her feeding tube?

    Or if they are worried, and they get court order, does it make it state ordered execution that is wrong?

    So if they are out of money and cannot afford nursing care, they can remove feeding tube? Honestly how many people have the funds to maintain a patient for 15 years ?

    Yi-Ling (482494)

  73. ORDERED AND ADJUDGED that absent a stay from the appellate court. 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.

    So that’s an order that was made pursuant to a law passed by Florida called Chapter 756 Advanced Health Care Directives, and further pursuant to a probate court case, which heard the petition brought under the said Florida Statute.

    Looks like a good order to me, excepting that I take issue with the finding of fact on PVS. If in another case, where there was greater medical consensus on the finding of fact of PVS, I would think its a jolly good order :-)

    What’s wrong with the wording of the order?
    I do not get it !

    Yi-Ling (482494)

  74. November 1992 – Opening Statements [ by Michael Shiavo’s lawyer], Medical Malpractice Trial

    You’ll find from the evidence past medical bills and lost earnings are in the neighborhood of $500,000, and to care for her in the future and compensate her for lost earnings, obviously, she cannot work. And if she lives a normal life expectancy, fifty-one years, and the cost of that, depending on whether or not in an institution or Mike takes her home is between 12 and 16 million dollars. They say, well, she doesn’t have a normal life expectancy. You’ll hear if she receives proper treatment, there’s no reason why she shouldn’t. And she is not just a head on a pillow. She can’t respond much but she can respond, and she does respond a little bit, not much. But enough to give him hope. http://www.geocities.com/purple_kangaroo_angela/Malpractice/malpracticenov1992opening.html

    How many peope can afford to pay anywhere near $ 1 million for cost of care of a patient like this? Honestly :-)

    So Big Brother will have to watch over all those who cannot afford to pay to make sure they do not remove the feeding tube accidentally????? Honestly :-)

    Yi-Ling (482494)

  75. Now, notice that it is an order. Please note also that it is an execution order.

    Does it comply with the 5th Amendment? No.

    Are their other exceptions that allow an execution other than the 5th Amendment? No, by the ninth amendment and infered from the preamble.

    Does it matter that this is a civil procedure? No, it is equivalent to a capital offense in action. There were no other allowances for denial of life under the Constitution so it is irrelevant that the state chooses to call this a civil procedure.

    Does it matter that the State of Florida is executing Schiavo and not the Federal government? No, please refer again to the fifth, preamble, and ninth amendments.

    Is anything else relevant in determining the lawfulness of this action? No, the sources cited are sufficient. Anything else would be either redundant or unconstitutional and therefore unlawful as the US Constitution is the supreme law of the land.

    What if Terri was brain dead? Then she would be dead already.

    What is brain death? The entirety of the brain is dead.

    Can she be dead without being brain dead? No.

    What if no one in the US likes this law? Then they need to reform the government as a dictatorship.

    Would everything be OK then? No, I would be in revolt.

    What if Paul was dead and everyone else was OK with the dictatorship? I would curse you from the grave.

    What if I change the subject to an intellectual discussion of the benefits of the welfare society? What? I wasn’t listening. Let me refer you to my friend ALICE to answer that one.

    Paul Deignan (b56a14)

  76. the cost of that, depending on whether or not in an institution or Mike takes her home is between 12 and 16 million dollars

    I rest my case. If there had been no medical malpractice award, would we even be talking of this case or it would have faded into oblivion?

    Nursing care costs $$$ and nurses / families are needed to help turn such patients over so that they do not develop bed sores, which can then become a source of infection and can get worse and worse… and even lead to death before any feeding tube is removed. These are real world realities and practicalities.

    Yi-Ling (482494)

  77. What if Paul was dead and everyone else was OK with the dictatorship? I would curse you from the grave.

    No, you will be blessing us all for being wise and judicious about state funds so that it can be well spent on infant care, children education, birthing mothers, disability benefits , etcetra… all for a wholesome society, productive and with a future with resources well spread out over critical growth areas.

    What if I change the subject to an intellectual discussion of the benefits of the welfare society? What? I wasn’t listening. Let me refer you to my friend ALICE to answer that one.

    No, you won’t because you will get real and know that we have to pay for medical-dental insurance coverage. You will not live in dreamland but in the real world :-)
    You will face the issue head on realistically pragmatically and find agreement with reasonable state laws that makes wise and judicious use of limited not unlimited resources of state and of individuals and of families. :-)

    Take care, rebel without a cause :-)

    Yi-Ling (482494)

  78. I still disagree with the constitutionality of that statute as it implies a positive duty on the citizen to secure an intrinsic (natural) right that is already theirs by the construction of the Constitution itself.

    I think the spirit and letter of st. 765 reflects that the right to life trumps the right to refuse treatment absent clear and convincing evidence of a the person opting for the latter. So in that way natural rights are secured and it doesn’t run afoul of the constitution.

    Dom Rodavre (2c7a47)

  79. But PVS is not diagnosed from CT scans; it is diagnosed from a multitude of clinical observations and tests that can include CT, MRI, PET, SPECT, EEG, SSEP and other acronyms. …

    Well assuming you did read the blog he says he has done 10,000 & he offers a bet that if from CT scans one can derive diagnosis of PVS, 6/10 correct, you win a fortune.

    Yes, I have followed his blog. I don’t think he claimed to have diagnosed 10,000 PVS cases on the basis of CT scans. His point of issuing the challenge (which he doesn’t expect anyone to win) is the same as mine: neither radiologist nor neurologist nor neuroradiologist makes a diagnosis of PVS from a single CT scan, and he feels the “miss rate” would be 50% or worse if they tried. A CT image does provide a good visualization in explaining it to someone else: “see, the brain material is missing.”

    This issue of CT scan has to be seen in context of answering anti-tubists who say, what do you need a second MRI for as there is 1 MRI in 1990 and a CT scan in 1996. That’s enough to show she is in a PVS. What we say is, CT scan is inferior to MRI.

    I think the anti-tubers who say that are wrong. MRI is indeed better, but after 1992, it would have required surgical removal of the thalamic stimulator electrodes that remained implanted after a therapy she received. Before going to that length, the question would be, what would MRI tell us that we can’t already get by inference from other sources (CT, SPECT, EEG, observation etc.)? I suspect the answer is that an MRI would not be able to rule out PVS. It would also be unlikely that there’s been improvement since the first few months after the injury.

    Clinical diagnosis I understand should also be longer period than 1 or few hours observation.

    Indeed. That’s why docs in the 2002 trial were given acccess to 12 years of records comprising probably hundreds of hours of clinical observation, test results etc. One gestured to indicate the stack of paper he read was about 2.5 to 3 feet high. You look at what’s been done, think about what else you might try to rule or rule in something. If you feel the history has been pretty thorough, your personal direct observation might be relatively short. If you want to put on a good show, you could go on for hours. The accuracy of the testimony didn’t hinge solely on the length of each witness’ direct observation.

    I first read Cheshire’s affidavit several days ago. My impression was that he was sincere and thorough in his reasoning but lacked some key information that would have differentiated his assertions from what had already been said. Commenting further will have to wait a bit.

    Dom Rodavre (585f0d)

  80. I first read Cheshire’s affidavit several days ago. My impression was that he was sincere and thorough in his reasoning but lacked some key information that would have differentiated his assertions from what had already been said.

    ???????????????????????

    Yi-Ling (010ca0)

  81. Has anyone heard of any constitutional challenge to Fla. statute 765?

    I have not, but then again, it is a broad question as there are many sections in Fla. statute 765. A challenge can come on any one section. For example, when the proxy makes a decision to withhold life prolonging measures, and he is being sued for it, and let’s say this proxy is the spouse [ not court judge, because no one went to court for court order] , his defence to such law suit, in one section of the Fla. stat. would be he acted in good faith in making that decision. A question could arise whether such standard of good faith, is as high as clear and convincing standard that is stated in another section of the same Fla. stat. Cruzan is said not have to set the standard but to have said, it is permissible to use that standard. Much issue has been made about that

    Thus, Judge Whittemore dodged the issue of whether the evidence in the Schiavo case was truly clear and convincing, by ruling that this evidentiary standard is not mandated by federal law. But the fact that Cruzan said that the clear and convincing standard is sufficient doesn’t rule out the argument that the clear and convincing standard is constitutionally required. In his unrelenting haste to issue an opinion within a few hours, Judge Whittemore didn’t even bother to address the latter issue.

    Just as after Fla. Browning case 1990, Cruzan case 1990, the Fla. stat 1997 was passed or amended as the case may be, maybe Fla. legislature should take into account all the issues arising in the court room and public domain and make the necessary adjustments to reduce constitutional challenges :-)

    The same would go for other states, too.

    Yi-Ling (010ca0)

  82. I think the spirit and letter of st. 765 reflects that the right to life trumps the right to refuse treatment absent clear and convincing evidence of a the person opting for the latter. So in that way natural rights are secured and it doesn’t run afoul of the constitution.

    Dom,

    Under no condition can the state put itself in the position of superiority over the individual in respect to that individual’s right to life outside of the grant of the 5th Amendment. Any corruption of this relation is unconstitutional.

    That means that for no reason, not presuming wishes, not if the person is incapacitated, not for mercy killing, nothing. The person in his or her life is sovereign.

    So, no, the state cannot pretend to be judging intent of the individual, leveraging its decision on the testimony of doctors, other experts, astrologers, soothe-sayers, not even forensic experts testifying as to the accuracy of a signature on a document that says, “Kill me, please.”

    The state may not be able to provide life saving services, but it cannot deny a basic level of these services if rendered by anyone else. The one sticky point in all of this is how far can those services go?

    A feeding tube, IMO, can be too far as it requires surgery. Feeding by mouth never is. If we are hanging around in a room full of respirators, a respirator would be required, but if respirators are scarce, then a respirator would be extraordinary. Band-aids are made of “space age” polymers, but we would not consider applying bandages to a wound extraordinary. What is the general rule for extraordinary care/invasive care?

    Let me offer this one:

    Each individual should strive to apply that care which they would want fro themselves in a similar situation.

    Naturally, this means that we will never be settled on the matter. Democracies rely on constant civil debate and conflict. This is how it should be.

    Paul Deignan (9f34d8)

  83. I suppose this is as good a place as any to ask this question.

    I just found the DCF documents of the Schiavo complaint investigation and it turns out not only to be badly misrepresented in the press, but also to be pretty much a whitewash.

    Who is interested in a detailed run down of the actual documents describing the complaint and the rationale offered to justify a “No indication” finding?

    (It is stunning.)

    Paul Deignan (ccc08c)

  84. Who is interested in a detailed run down of the actual documents describing the complaint and the rationale offered to justify a “No indication” finding?

    Me, please :-)

    Yi-Ling (001a6e)

  85. MRI is indeed better, but after 1992, it would have required surgical removal of the thalamic stimulator electrodes that remained implanted after a therapy she received.

    Is it true that the doctor who put the thalamic stimulator electrodes there in the first place had also asked for them to be removed as stated in this report by Reverend Robert Johansen [ Father/ Fr Rob] http://www.nationalreview.com/comment/johansen200503160848.asp

    So why hasn’t an MRI been done for Terri? That question has never been satisfactorily answered. George Felos has argued that an MRI can’t be done because of thalamic implants that were placed in Terri’s skull during the last attempt at therapy, dating back to 1992. But Felos’s contention ignores the fact that these implants could be removed. Indeed, the doctor who put them in instructed Michael to have them removed. Michael has never done so.

    While on this Fr Rob report, being religiously inclined, [Buddhist] I would lean towards the integrity of the reporting by a religious {Roman Catholic]. Though Fr Rob is not a medical man, but holder of some MA before he started his seminary studies to be a priest later in life, I would assume that he has the ability to conduct interviews with medical men and report them sufficiently accuratetely.

    Can you also comment on the factual correctness of Fr Rob reporting. There is however 1 error pointed out that, Fr Rob says there is no MRI but others say there has been 1 MRI in 1990 but it only showed brain damage then and the question looms whether it is brain damage or brain dead, which a fMRI would have resolved to some extent. In those circumstances, the 1990 MRI is thus seen to be irrelevant to the issue of in a PVS or not, as in 1990, the PVS was not the issue. Presumably the 1990 MRI was used for the medical malpractice law suit as well to gain $ 750,000 for care of her for her natural life of a further 50 years. Apparently there was another award, of a smaller sum for her too, but I am not sure of those details.

    Also is there a difference between fMRI and MRI? If yes, which would show a better result?

    Yi-Ling (f2fefe)

  86. Fr. Rob’s article seews to be an attempt at a “comprehensive but short overview for the lay person”. His article appears to be generally correct, but there are things that are for a matter of opinion. PVS is a “clinical diagnosis”, meaning there is no specific test that can diagnose it completely or rule it out completely. So, in one way, PVS can be diagnosed without any MRI. In another way, the neurologists Fr. Rob spoke with conveyed the opinion that in a life and death decision medicine usually errs on doing more, not less, testing, which is also true, hence surprise and the sense that “They already had the answer that they wanted”.
    The MRI is much better than a CT in showing the structure of the brain, but a “regular” MRI only shows structure. The fMRI and SPECT scans can give information about actual function. In one study with patients very disabled, although it was hard to discern by observation alone, the fMRI would light up when hearing the voice of a family member just like a normal person. My understanding of current law, one could be diagnosed with PVS and this kind of info would not be sufficient to say “no it’s not”. For those who are looking at what is moral as not neccesarily the same as legal, perhaps a fMRI or SPECT that showed no activity might go into the consideration when you would find it appropriate to withdraw nutrition.
    (For what it is worth, Hugh Hewitt gave great credit to the article. He is a lawyer, not a doctor, and one person, not the final arbiter of truth, but I find him to be intellectually honest and slow to fall to a fraud. And besides, he linked to patterico just the other day…)

    MD in Philly (b3202e)

  87. “The fMRI and SPECT scans can give information about actual function. In one study with patients very disabled, although it was hard to discern by observation alone, the fMRI would light up when hearing the voice of a family member just like a normal person. My understanding of current law, one could be diagnosed with PVS and this kind of info would not be sufficient to say “no it’s not” ”

    I am still not sure of the medical standard for determining PVS, whether the patient who utters words from time to time and feels pain is in a PVS. Granted that there will be no consistent cognitive awareness or capacity, what of infrequent cognitive capacity and awareness? Here goes…

    (1) District Court of Appeal, 2nd District, March 16, 2005 Opinion, page 8 reads “Dr. Wolfson , the guardian who was appointed at the request of the Governor, visited Mrs Schiavo many times in 2003. He was unable to independently observe any “consistent, repetitive, intentional, reproducible interactive and aware activities.” His report does not challenge the now well-established medical diagnosis that Mrs. Schiavo’s movement are merely reflexive. As he explained: “This is the confusing thing for the lay person about persistent vegetative state.”

    (2) (a) Affidavit of Heidi Law, registered nurse, para 15: “I have hard her say “mommy” from time to time, and “momma” and she also said “help me” a number of times. Dated 30 August 2003.

    (b) They were some other affidavits, where they mentioned she said “pain” during her menstrual flow time.

    (3)(a) From what I gather, these affidavits were read out in court by the attorney, there was no actual hearing to hear what the deponents of the affidavits would have said, if called as witnesses or whether they would have stood up to cross examination.

    (b) The affidavits were read in court on Schindlers application for immediate therapy. Greer decide this was back door method to rehear the evidence on whether she is in a PVS. Greer said, “The Petition is an attempt by Mr and Mrs Schindler to relitigate the entire case. It is not even a veiled or disguised attempt.”

    (c) So Greer ruled that it is res judicata, that once heard and decided, it cannot be re-opened. Yet Greer went on to read and consider the 9 affidavits, where there were reference to hearing Terri say “yeah” as a new sound, “yeah”.

    (d)Unfortunately, Greer was influenced by medical testimony given earlier, that patients in a PVS can utter words from time to time.

    (4)(a) The medical question is, “Do words uttered from time to time, “momma”, “yeah” mean a patient is not in a PVS?

    (b) The other medical question is, “Do patients in a PVS feel pain, like menstrual period pain?” especially accompanied by infrequent utter of “pain”.

    (5)These two scenarios of utterances of words, and feeling of pain, to a lay person, suggest that the patient is not in a PVS. By established standard of medical science, can these two indicia mean that a patient is not in a PVS?

    (6)The court room battle was waged and lost on 9 affidavits read in court [ issues of appeals aside] , than tried as 9 witnesses in court room, on a technicality that the case has been tried and is settled and not to be re-opened. The public opinion is forged on “pain” “momma” uttered by Terri and on her feeling menstrual period pain.

    (7)How do I answer those who ask me, isn’t she not in a PVS, when she can say “momma” “yeah” “pain” and feel pain? Isn’t she obviously not PVS and she obviously was wanting to live (per nurse statements).

    (8)Whatever understanding I can gather, I would pass on, so that, if medically she is not in a PVS, by accepted established standards of medical science, at least I can say, Greer was right about that and so too the appeal courts, and what’s left is a moral issue, of if she has unseen cognitive awareness as may have been shown with the fMRI, it is an issue for the legislature and people who voted in the legislature to decide, if that, which is on the statute books is sufficient or if they want to move the finishing line. And if they want to ask their legislature to move the finishing line, I will ask them, what happens, when the cost to family and state goes up, and families become bankrupt trying to maintain the patient who cannot show any “consistent, repetitive, intentional, reproducible interactive and aware activities.” but whose “fMRI would light up when hearing the voice of a family member just like a normal person.”

    (9)When the law is set too high, on moral grounds, then, people who do not subscribe to these high moral grounds, would fall short and break the law. While the financial and other cost of committing to high moral grounds, is balanced against the person’s sense of meaning of life, and thus preparedness for such great sacrifice, others will not be prepared for such commitment & sacrifice, and thus law cannot follow morality of those who seek to live very morally.

    (10)If objective medical science would similarly discount the non consistent “momma” “yeah “pain”, as did Greer influenced by the prior medical testimony “patients in a PVS like Terri Schiavo could utter words from time to time”, then I will accept that, Greer did not err on the issue of finding she is in a PVS, even though he should have held a hearing than gone by read affidavits.

    Yi-Ling (03f365)

  88. (7)How do I answer those who ask me, isn’t she not in a PVS, when she can say “momma” “yeah” “pain” and feel pain? Isn’t she obviously not PVS and she obviously was wanting to live (per nurse statements).

    I think this is about Terri uttering “wanna” when asked if she wanted to live.
    To many lay people, this is clear and convincing evidence she wanted to live.
    How does objective medical science view this utterance of “wanna”?

    Yi-Ling (97d35d)

  89. Thanks for posting that. As traditional media and uninformed bloggers begin to disseminate wierd and misconstrued chatter regarding Schiavo, I have sent responses using direct quotations from the DOCUMENTATION. Documentations is lacking in much of the quasi journalism abounding everywhere.

    kadamson (59cb0a)

  90. Quickly,

    My ADD is acting up too much to completely digest all that you have asked. I think Cheshire explains a lot in his report.

    The human body can do some things reflexively that look like purposeful movement. The obvious problem is knowing when and how to tell the difference. For example, the eyes can track movement to some degree at times purely on reflex. While much of “Pain” is perceived in the cortex, there are aspects of a bodily response which may exist only at the level of the spinal cord. Likewise, vocalization is not necessarily the result of purposeful cognition.

    The issue on diagnosing PVS concerns observing the various behaviors over time and looking for a pattern that suggests cognitive interraction vs. random (Or even predictable based on environmental ques, but not purposeful).

    Dr. Cheshire discusses some behaviors, including one in a film that was not previously noted, which he thinks are purposeful, or at the very least hard to say they are not.

    I do not know what to do about many of the affidavits. Statements that come years after the fact that seem undeniable, but only from a few people, compared to all of the dozens who have cared for her over the years. Are there many witnesses who were intimidated or who “just didn’t want to get involved”? Or have there been people who for unknown reasons came to the limelight to give testimony that is dramatic but not reliable? People can do strange things. We have seen healthy people claim that they have HIV and come to the office for care. On the other hand, looking back at the case in California (Wedland, or something like that) that Cranford was involved in, he was obviously not in PVS, but significantly disabled compared to his pre-trauma self.

    Below is all conjencture and not directly part of the Schiavo case:
    Certainly, we do not make laws against all immoral behavior, such as saying something mean. (Unless it is in a context where it is turned into a claim of harrassment or intimidation, etc.) But if we all agreed to refrain from the illegal but feel free to do the immoral there would be much suffering. (I believe there is no law against getting drunk in your own home, but much grief can come of it, especially if repetitive.)
    Some feel that giving food and water is not a medically burdensome treatment (even if it is through a tube into the stomach). Such a position would make it difficult to consider the clearly legal action of allowing someone truely in PVS to go without nutritional support. For such a person, if a fMRI or SPECT scan in the patient was completely void of responsiveness it could be evidence for such a person to have more justification of a course of action.

    MD in Philly (1b0bc5)

  91. Dr. Cheshire discusses some behaviors, including one in a film that was not previously noted, which he thinks are purposeful, or at the very least hard to say they are not.

    http://www.floridabaptistwitness.com/chesireaffidavit.pdf

    Reading Dr Cheshire, issues of when /how it was introduced into court, aside, it would , to my non medical mind, tell me, that, the nurses had something to say that was worth listening, and for which doctors should have been called to evaluate those nurses statements of “wanna” “pain” “stop”….

    Even though Greer thought he was right that he need not evaluate those nurses affidavits, but he did, and he told us, that, he rejects them because, earlier medical testimony says a patient in a PVS can utter words from time to time as a reflex action.

    So the common man is right to think there is no clear and convincing evidence that she is in a PVS because she can utter “pain” momma” “yeah” “stop” and to quote Dr. Cheshire

    Her behaviour is frequently context -specific. For example her facial expression brightens and she smiles in response to the voice of familiar persons such as her parents or her nurse. Her agitation subsides and her facial demeanors softens when quiet music is played. When jubilant piano music is played, her face brightens, she lifts her eye brows, smiles and even laughs. …. Several times I witnessed Terri briefly, albeit inconsistently, laugh in response to a humorous comment someone in the room had made. I did not see her laugh in the absence of someone’s else’s laughter.

    Greer was influenced by medical testimony given earlier, that patients in a PVS can utter words from time to time. Greer said

    Although the affidavits of the family members deal largely with events which preceded the January 2000 evidentiary hearing, Mrs. Carr, Mr. Schindler, Sr. and Mrs. Schindler reference hearing Terri say “yeah” as a new sound, although Ms. Mele’s affidavits referred to them as “sounds which approximate the word ‘yeah’ “. Testimony at prior evidentiary hearings did establish that patients in a persistent vegetative state like Terri Schiavo could utter words from time to time.”

    So Greer a probate judge has the scientific ability to evaluate medically the Mrs. Carr, Mr. Schindler, Sr. and Mrs. Schindler reference hearing Terri say “yeah” as a new sound, although Ms. Mele’s affidavits referred to them as “sounds which approximate the word ‘yeah’ without calling expert witnesses to testify on these sound issues raised, and this bothers me, because I do not seem to have such ability and a non doctor , a non neurologist has that ability. I honestly question that ability and that inference, without seeking guidance from neurologists, experts in this field.

    It is this dismissal of this evidence in court because a probate judge assumes or wrongly assumes
    (a) he has understood the full meaning of prior medical testimony
    (b) he assumes there have been no strides in medicine in this field. [ Dr Cheshire at footnote 3 and 4 of his affidavit, indicates that there are medical journals of 2002 and 2004 that shows new diagnosis of MCS. ] Greer no where mentions MCS. Could it be that he was not apprised of latest developments and thus made a mistake in deciding that she is in a PVS?

    Dr Cheshire says

    Furthermore the diagnosis of minimally conscious state had not yet become standard parlance in the field of neurology at the time of Terri’s initial diagnosis. The minimally conscious state has emerged as a distinct entity only within the last few years.”

    Yi-Ling (9d70c9)

  92. Greer: Order of 17 September 2003 at pg. 4 & 5:

    “Testimony at prior evidentiary hearings did establish that patients in a persistent vegetative state like Terri Schiavo could utter words from time to time.

    “from time to time” should mean non context specific utterance of words from time to time

    Greer wrongly took “from time to time” to mean also context specific utterance

    Most lay people would think that “from time to time” cannot mean context specific utterances for that would be her context specific response to their questions to her or joke with her.

    Greer is wrong, to cast the doctors’ prior testimony, to cover also context specific utterances. It is more likely than not, the doctors’ testimony did not mean to include context specific utterances from time to time.

    Yi-Ling (42d745)

  93. “from time to time” should mean non context specific utterance of words from time to time

    That means out of the blue, she utters “yeah” “stop”. There is no context when a “yeah” or a “stop” would carry a special meaning.

    Dr Cheshire says in his affidavit

    The July 25, 2004 affidavit of speech pathologists Sara Green Mele, MS, on page 6, reads, “The records of Mediplex reflect the fact that she has said “stop” in apparent response to a medical procedure being done to her.”

    The utterance of “stop” was in the context of something being done to her which she did not like and she uttered the word “stop”. This is a context specific utterance of word from time to time.

    Yi-Ling (36be8b)

  94. District Court of Appeal, 2nd District, March 16, 2005 Opinion, page 8 reads “Dr. Wolfson , the guardian who was appointed at the request of the Governor, visited Mrs Schiavo many times in 2003. He was unable to independently observe any “consistent, repetitive, intentional, reproducible interactive and aware activities.” His report does not challenge the now well-established medical diagnosis that Mrs. Schiavo’s movement are merely reflexive. As he explained: “This is the confusing thing for the lay person about persistent vegetative state.”

    The key word in the DCA opinion is “reflexive” in describing her movements. Against this, the utterances of words from time to time, would also mean reflexive utterances from time to time.

    How can Greer or anyone deduce that utterances of words from time to time, means context specific utterances too?

    Now it’s not Greer, but Grrrrr……

    Yi-Ling (36be8b)

  95. As promised, I now comment on Dr. Cheshire’s affidavit. I’ll address the biggest points in order.

    1. PVS has been found to be misdiagnosed in some studies.
    These studies focused on early diagnosis. One showed that in many patients diagnosed as vegetative, communication could be established within 6 weeks of instituting an interdisciplinary program of physical, occupational and speech therapy. This group was considered to have been misdiagnosed and comprised 43% of the patients in the study, underscoring the danger of using an early diagnosis of PVS to “write off” treatment on a patient who could have improved if given therapy. Other patients took longer than 6 weeks and others never improved. Another way of analyzing the data is that if therapy was undertaken within 6 months of injury, at 2 years post-injury patients could be diagnosed with 100% accuracy as either non-PVS or PVS by simply looking at the outcome.

    These studies were already mentioned in the 2002 trial, and they don’t really apply to Terri because she did have several years of treatment by an interdisciplinary therapy team early on. If meaningful communication could have been established, it almost certainly would have happened during that timeframe. The chance of her having been mislabeled as PVS is thus small. Once patients are in PVS for 6 months, the probability of recovery after 1 year is listed as 0%.
    http://www.aan.com/professionals/practice/pdfs/pdf_1995_thru_1998/1995.45.1015.pdf

    2. Tests have not been performed recently.
    According to above quoted statistics, for Terri to have shown meaningful improvement between 1996 and 2002 would have been a statistical near-impossibility, and in fact she didn’t meaningfully improve. For there to have been subsequent improvement between 2002 and 2005 would be that much less possible. A claim that recent tests would reveal something that had defied such odds would be helped by citing cases wherein that had occurred.

    3. New tests may be more accurate.
    The use of functional imaging techniques to discern PVS from minimally conscious state (MCS) is still in the experimental stages (especially in the case of fMRI). The approach at this point is to find patients in PVS and MCS and see what the imaging reveals. Diagnostic use seems like it may be just around the corner, with certain caveats.

    “Functional neuroimaging comparisons of MCS and PVS patients have not been reported. As evidence for conscious awareness is always indirectly inferred from behaviour, further investigations of brain function in patients rising above a vegetative level will be an important next step. … Future additional diagnostic imaging will not alter the potential for functional recovery in chronic vegetative patients. However, identification of less severely brain-injured patients (as measured by outcome), with relatively high degrees of preserved metabolic activity and focal injury patterns, may allow risk stratification for rational interventions.” (Schiff et al., Brain 2002)

    “It was found that the coupling between neuronal electrical activity and regional glucose metabolism was preserved in all the minimally conscious patients but was absent in all the vegetative state patients.” (Coleman et al., J Neurol Neurosurg Psychiatry. 2005).

    4. The “minimally conscious state” (MCS) is a new diagnosis that may apply here.
    MCS has been in the literature since the mid 1990s, the current name replacing “minimally responsive.” (Arch Phys Med Rehabil. 1995, 76:205-209) Prior to the coining of that term, a patient we would call MCS nowadays would have been called non-PVS or emerging from PVS. By focusing on the dividing line between PVS and non-PVS with a definition of MCS, a false diagnosis of PVS is hopefully reduced. However, a PVS patient does not qualify as MCS just because the term came into being.

    MCS was discussed in the 2002 trial by the same 3 neurologists who classified Terri as PVS. One of them in fact had authored or coauthored two papers on MCS, in 1998 and earlier 2002. So not only was MCS not a new entry into evidence for this case, it had previously been ruled out. Cheshire did not identify any specific behaviors that would support a diagnosis of MCS over PVS to controvert the earlier diagnosis.

    5. She demonstrates context-specific responses.
    During Cheshire’s own 90 minute visit, “Terri did not demonstrate … compelling evidence of verbalization, conscious awareness, or volitional behavior.” His personal findings of such responses therefore come solely from review of videotapes already considered by the court, which he relates anecdotally in numbers that can be counted on one hand. He gets credit for reviewing several hours of videotape instead of just clips. However, he appears not to have read the judge’s 2002 ruling, which would have made clear that statistical analysis does not support that these events could be distinguishable from coincidence, thus cognition is an unlikely explanation. Had he provided his own statistical analysis to support his contentions, he would have made a stronger case.

    6. She has awareness of pain.
    A variety of literature demonstrates that PVS patients do respond to pain with bodily movements and/or facial expressions. Unsurprisingly, this apparent discomfort can be relieved by analgesics. This does not make the responses “context-specific” in the sense of having a conscious awareness of the situation. The one example of apparent awareness of pain is when Hammesfahr said “so we’re going to have to roll her over” and she grimaced and vocalized an apparent cry. For this to reflect awareness of pain, we would have to believe that a person who has not been able to process and follow the simplest commands voluntarily is now somehow able to comprehend and anticipate the scenario that rolling her over might create risk of pain, and to voluntarily express disapproval. The simpler explanation is that this one-time occurrence was a coincidence.

    Recent literature suggests that some pain-processing activity is retained in PVS patients. However, “functional connectivity assessment showed that the observed activation of primary sensory cortex seems to subsist as an island, dissociated from higher-order cortices that would be necessary to produce awareness” (Laureys et al., Neuroimage 2002). This finding was confirmed by another group who also found no evidence that the brain had “relearned” how to consciously process pain. “In summary, a residual cortical pain-processing matrix could be detected in the PVS patients, in which some parts of the medial and lateral pain system were activated, whereas many other parts of the complex pain-related network were missing. There were no signs of abnormal activation in the sense of re-mapping phenomena, probably due to the general structural and functional brain damage. What do the results of this study imply for our understanding of pain-processing in patients in the PVS? Obviously, it has to remain hypothetical if the residual cortical activity can demonstrate that PVS patients consciously suffer painful sensations.” (Kassubek et al., Journal of the Neurological Sciences 2003).

    So at present, these findings seem to contradict Cheshire’s implication that pain processing or response to pain necessarily represents awareness. Assuming awareness of pain can be demonstrated in the absence of any other awareness, we might consider the implications of a prolonged existence wherein the only environmental input that can be meaningfully processed is pain.

    In summary, Cheshire made a sincere attempt to voice his opinions, to question and to bring together the issues of current scientific thought. However, his assertions were often contradicted by closer inspection of material he used in his support, and he did not provide specific data or analysis that would controvert the findings already made.

    Dom Rodavre (872af5)

  96. Dr Cheshire says in his affidavit

    The July 25, 2004 affidavit of speech pathologists Sara Green Mele, MS, on page 6, reads, “The records of Mediplex reflect the fact that she has said “stop” in apparent response to a medical procedure being done to her.”

    The utterance of “stop” was in the context of something being done to her which she did not like and she uttered the word “stop”. This is a context specific utterance of word from time to time.

    This is Cheshire relating Mele relating the charts relating Terri saying “stop.” Several degrees of separation. Wolfson reported “There is evidence early in her records of care that she said ‘no’ during physical therapy session. That behavior did not recur and was not further referenced.” Which is it? Did she say “uuuhhh” or “aaahhh” or “ohhh” and the humans with her, in an attempt to understand the utterance, assumed a context-appropriate word because being uncomfortable with the procedure might be an appropriate response?

    Dom Rodavre (872af5)

  97. Yi-Ling, it occurs to me that we’re not discussing C&C evidence of Terri’s wishes anymore. We’re discussing legal definition ov PVS. Is that not better done on the “Schiavo Original Documents” page?

    Is it that you wish to respond to this [below] on this board? If yes, please respond.

    No evidence of awareness of self or environment and an inability to interact with others;
    • No evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli;
    • No evidence of language comprehension or expression;

    “No evidence” rule of AAN for item #1 is different for that of item #2 , in that, in # 2, “sustained” is employed. So is this the basis that infrequent and random utterances are not indicia of PVS for # 2. Is # 1 independent from # 2? Is “sustained” in # 2 applicable to “voluntary behavioral responses”, too or not applicable to it?

    By the way, did she have “bowel and bladder incontinence” and if yes, what kind of nursing and home care is required to attend to that?

    Sufficiently preserved hypothalamic and brainstem autonomic functions to permit survival with medical and nursing care

    Perchance would you know what would be the average cost of such medical and nursing care per week, per month, per year, and the number of such PVS patients, and who really picks up the tab on this “medical and nursing care” You would know that Schindlers became bankrupt.

    What is the underlying medical ethics behind the AAN rule vis a vis the Hippocratic Oath or modern versions of it?

    Is this “Now I’ll just stipulate that when the AAN guideline calls for “no evidence of X,” but we see some evidence of X at a rate that is statistically indistinguishable from happening by chance, that’s as good as having “no evidence of X.” When we observe statistically significant, non-random evidence, that’s a deal breaker.”
    a further refinement of the medical definition of PVS, by borrowing from mathematics some concepts and then applying them to medicine? Please draw no adverse inference from the questions, they are an attempt to get to the bottom of the PVS medical diagnosis and PVS legislation and judicial PVS fact finding, for future delibrations.

    Comment by Yi-Ling — 4/27/2005 @ 10:55 pm

    Yi-Ling (04a418)

  98. For instance suppose during a physical therapy session she says “hey, will you please stop that, it hurts,” and it takes another year before she says “look, I told you last time, stop it.” (We would hope these events were reliably witnessed.) We’d say that the chances of even one of those event having happened at random is virtually nil, even if neither one is ever repeated identically.

    On the other hand, suppose she says “ahhh” during the occasional PT session. The therapist sees many patients who react to sometimes-painful PT by saying “stop”, and so the therapist thinks she has effectively and appropriately said “stop” as well. But she also says “ahhh” a few times in different settings when no apparent stimulus is present, thus the probability of “ahhh” being an actual command to “stop” in a context of pain is likely to be low.

    This is the DISTINCTION you draw, but would you relook at the Fla. Stat. on the statutory definition of PVS and reply IF the legislature did intend to draw the distinction you draw above?

    I was wondering IF they did NOT intend to draw the distinction you draw above and thus, they passed Terri’s Law I.

    There is really a difference in the definition of PVS to AAN and to state legislature, but the operative definition has to be that of the state legislature, unless they cite all the criteria given by AAN. is AAN American Association of Neurologists?

    Yi-Ling (04a418)

  99. Hi! Thanks for linking to my site.

    I’m hoping you received my e-mail a while back explaining the sources I’ve found the documents at, and that the timeline and collection of documents are still under construction. If not, please drop me a note and I’ll re-send the information.

    I have a number of documents that aren’t up yet, but there are many I’m missing.

    Right now the document I’d most like to get my hands on is the full transcript of the entire 2000 court proceedings. If anyone has that, please let me know.

    I’ve also written a number of articles discussing the Terri Schiavo case, PVS and other related issues on my blog.

    Thanks,

    purple_kangaroo

    purple_kangaroo (1858dd)

  100. hello this is not a comment as such, i was just wondering if you could h elp me with a few questions i hav e about the terri shiav o issue.

    what issue was raised, why is it so contoversial, who are the two sides of this argument and whats their arguments

    the churches view on this issue

    is this teching dentological or teleological

    Jason (af62bd)


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