Michael Schiavo: Heartless Jerk
First Michael Schiavo prevented Terri Schiavo’s family from being at her bedside when she died. Now he is cremating her and burying her ashes — and he won’t tell her parents where.
UPDATE: Commenters are telling me that the story says Schiavo is required to tell the Schindlers where the ashes will be buried. I am blogging this from a Treo, and I don’t see that language anywhere. I have read the piece five times now, and the only language I see relevant to the issue is this:
The autopsy of Terri Schiavo has been completed, and the body is ready for release to her husband, who plans to cremate her remains and bury the ashes without telling his in-laws when or where.
Is the version available on a PDA different from the one available on a PC??
UPDATE x2: Mystery solved. I was looking at an earlier version of the story. I hit “refresh” and saw the version my commenters are seeing, which says:
Michael Schiavo is required to tell his wife’s parents of any memorial services he plans for Terri Schiavo and where her ashes are interred.
So. Schiavo intended to keep the location of the grave secret, but the court ordered him to disclose it.
The title of the post stands.
While I agree Michael is a heartless jerk, the article you link to here says he is required to tell the Schindlers where he buries Terri’s ashes. Would that be part of the court order? How sad.
[Where does it say that? — Patterico.]
Ann (53a60b) — 4/2/2005 @ 4:26 pmHeartless jetk, I agree.
Required to tell her parents in this section of the article: “Michael Schiavo is required to tell his wife’s parents of any memorial services he plans for Terri Schiavo and where her ashes are interred.”
That it may require a court order- disgusting.
EagleSpeak (0d84c2) — 4/2/2005 @ 5:28 pmPatterico:
So. Schiavo intended to keep the location of the grave secret, but the court ordered him to disclose it.
Okay, so this is an instance where the judge did the right thing?
Toby Petzold (cd28cf) — 4/2/2005 @ 6:44 pmPatterico, I’m glad the mystery was solved!
Toby, I guess I could agree with you that in this instance the judge did the right thing, but after so many wrong decisions it’s hardly a consolation. And if a judge actually had to order Schiavo to disclose this information to the Schindlers, Schiavo is truly worse than a heartless jerk.
Ann (fc56ae) — 4/2/2005 @ 7:10 pmI posted the message below on Orson Scott Card’s Ornery American website in response to several posts by people who were annoyed by an essay OSC wrote on this topic (http://www.ornery.org/essays/warwatch/2005-03-20-1.html).
—
Michael Schiavo was married to Terry Schiavo until her recent death by forced starvation and dehydration. In spite of that fact he has for many years been living with, having sex with, impregnating twice, and subsequently raising two children with another woman. Those actions prove beyond any doubt that he no longer loved his actual wife. He had, in fact, been fighting for many years to kill her by removing her only source of nourishment.
There is very little evidence aside from the opinions of a court-appointed doctors or doctors hired by Michael Schiavo, one of whom (Ron Cranford) has elsewhere advocated starving Alzheimer patients to death, that Terry Schiavo was in a persistent vegetative state. There have been no brain scans in the last 3 years, for instance and the best type of scans for determining brain function (PET & MRI) were never performed. That these scans were never performed and that there were no EEGs performed at all since 2002 is amazing. How a judge could rule in 2005 regarding the current vegetative state of a person based on medical evidence that was at least 3 years old is incomprehensible.
To the contrary there is substantial current evidence that she attempts to communicate and has some amount of remaining brain function (saying, in effect, “I want” when recently asked to articulate “I want to live” in order to get her feeding tube reinserted, smiling, following people in the room with her eyes, responding to spoken words, etc…) Several neurologists and other specialists have stated after a careful examination of all the evidence that Terry could possibly have regained some amount of function were she to have undergone the sort of therapy that stroke victims undergo. Sadly, since 1994 her husband has refused all requests by her parents to allow Terry to undergo any therapy at all. It was, in fact, a dispute between Michael Schiavo and Terry’s parents over whether to spend the $1,050,000 on therapy or not that led to their bitter divide.
Michael Schiavo says Terry once told him that she wouldn’t want to live like this. They were married just over 5 years before her brain injury. Having been married for over 18 years myself I can tell you that there is no way even after knowing my wife for as long as I have that I could say beyond any doubt that I know what my wife would want in any given situation. The only thing I can approach certainty with is what I would want. There’s no way Michael Schiavo could be certain that he remembers exactly what Terry may have said to him or that he actually understood it sufficiently to so vehemently fight to carry out what he says he is certain were her wishes. He never even mentioned his having heard those wishes expressed until after the $1,050,000 settlement and his becoming engaged to another woman.
Supposing, though, that she did say at least once prior to her collapse and subsequent severe brain injury that she didn’t want to be kept alive by artificial means. Her brain injury was a direct result of her starving herself due to her eating disorder (Bulimia). Would she truly have wanted to be starved to death because of the injury she received by starving herself?
The only way to side with Michael Schiavo in this case is to assume that every physician who disagrees with the opinions of the court-appointed doctors and the ones paid by Michael Schiavo are incompetent or unethical. If there is any possibility that Terry Schiavo was not completely brain dead then the only choice is to err on the side of caution.
But that is not the route Michael Schiavo chose. He chose to have an experimental procedure performed on his wife the year of her injury which may have made matters worse. He chose to stop all therapy once his malpractice lawsuit was settled for $1,050,000. He chose to engage in adulterous relationships with another woman, fathering two children by her in the process. He chose to sign a DNR for Terry in 1994. He filed a petition to discontinue life support for Terry very shortly after beginning his relationshop with Jodi Centonze. He chose to remember that Terry had expressed her wishes to him about not wanting to be kept alive in a vegetative state after he began his relationshop with another woman and had received over $1 million in a settlement. He chose to ignore all the signs Terry has shown of conscious thought and all her attempts to communicate.
His choices expose him plainly to be concerned only about what he thinks is in his own best interest. He chose to act like an arrogant, selfish, murderous, adulterer. If that’s the way he’s been acting for more than a decade then it is hard to see him as anything other than exactly that.
John Hansen
John Hansen (e725e7) — 4/2/2005 @ 8:35 pmI thought the ashes were going in his family plot.
actus (f9abe0) — 4/2/2005 @ 10:40 pmWith all this talk of what Terri would want – having her family argue over her corpse certainly isn’t it. I say let the husband decide because he is, well, the husband.
I suspect he’ll tell the parents at the last minute in an attempt to keep the crowds down. These yelling kooks you see in the background of cable news broadcasts, with their signs announcing the website where you go to give them money, are not desirable.
Ladainian (91b3b2) — 4/3/2005 @ 5:53 amMichael Schiavo; hero of the decent class. Who are these people who hate Michael because he wants a life in what remains of his youth? His “wife” has been brain dead (is it?) fourteen years. The doctors well understand PVS; it means the brain is useless except for the brain stem. There hasn’t been any Terri for fourteen years, so go ahead Michael and have a life.
RJN (02cd5b) — 4/3/2005 @ 1:56 pmHe is a monster of the worst kind he only wants the money and he should hang for first degree murder along with judge greer this is nothing more then legalized murder
night heron (4c4c3c) — 4/5/2005 @ 10:58 amJohn Hansen and RJN, consider …..
(1) Florida law http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC401.HTM , and
(2) Father Rob’s article on MCS contention, that, MD from Philly posted http://www.nationalreview.com/comment/johansen200503160848.asp
(3) other sources you may have
[ Section 765.101 (12) Chapter 765 Health Care Advance Directives of Florida Laws :
“Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:
(a) The absence of voluntary action or cognitive behavior of any kind.
(b) An inability to communicate or interact purposefully with the environment. ]
would you say that Terri is legally PVS, in that, Terri has all these five characteristics that I surmise are necessary for a beyond reasonable doubt proof of PVS of Terri:
(1) a permanent and irreversible condition of unconsciousness
(2) there is absence of voluntary action AND
(3) there is absence of cognitive behavior of any kind AND
(4) an inability to communicate purposefully with the environment AND LASTLY,
(5) an inability to interact purposefully with the environment.
The standard of proof of Terri’s wish is clear & convincing evidence BUT of her PVS is beyond reasonable doubt. See contrast between section 765.401 and 765.305 (b) Chapter 765 Health Care Advance Directives
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC401.HTM
If it is NOT proven beyond reasonable doubt that Terri is PVS, there is no need to even go into what is her wish.
What is it in the evidence before the courts that Terri is BEYOND REASONABLE DOUBT “pvs” ?
What is in the evidence before the courts that Terri is NOT beyond reasonable doubt, “PVS”?
Yi-Ling (f87a0d) — 4/10/2005 @ 11:05 pmBriefly Yi-Ling, (in my opinion)
MD in Philly (b3202e) — 4/11/2005 @ 6:56 amThe report By Dr. Cheshire from Mayo Jacksonville requested by the State of Fla. Child and Family Services would appear to be adequate testimony to at least cause a longer evaluation to be necessary, if not in itself being adequate to put the diagnosis into reasonable doubt.
I think it could be argued that since the diagnosis of PVS requires a prolonged evaluation over time that none of the Schiavo-hired or court appointed physicians spent enough time with her to make the diagnosis. (Logically it is always hard to prove a negative, to prove there is NO consciousness ever if much tougher de novo than demonstrating minimal consciousness).
But, “a man hears what he wants to hear and disregards the rest…” More later..
MD from Philly, can you look at http://www.terrisfight.org/ court documents- emergency motion to US Supreme Court at page 6 of 23, with this chart table of comparison of global disorders of consciousness with the locked in state, and give your medical analysis.
One of the key things that 2nd District Court of Appeal said at page 8 of 10, “His report [ Dr Wolfson the GAL] does not challenge the now well established medical diagnosis that Mrs Schiavo’s [ Terri’s ] movements are merely reflexive.” This label “merely reflexive” undermines ALL of Terri’s movement or utterances as merely reflexive even when Terri’s family thinks it is cognitive in response. The chart table is instructive and interesting because it lists “inconsistently present” which would catch “merely reflexive” or “minimally conscious” . Your views please.
Yi-Ling (fead17) — 4/11/2005 @ 7:56 amMy critique of the District Court of Appeal [ hereinafter referred to as “DCA”] , Second District decision of March 16th 2005.
DCA failed to draw a distinction between the standard of proof for Terri’s medical condition ruled as PVS by Greer , and Terri’s wish. Like my earlier mistaken assumption, the DCA also assumed that, BOTH Terri’s medical condition and Terri’s wish are governed by the same standard of proof which is clear and convincing evidence !!!! How do I gather that DCA made that mistake? DCA at page 2 of 10 said, “The trial court determined based on clear and convincing evidence, that, Theresa Schiavo was in persistent vegetative state and that she herself would elect to forego further use of a feeding tube.” Note that one standard of “standard of proof” being “clear and convincing evidence” for two findings of fact, first is “Theresa Schiavo was in persistent vegetative state” and second is “that she herself would elect to forego further use of a feeding tube.”
This mistake is repeated as elsewhere, at page 7 of 10, DCA said, “… based upon a heightened standard of proof” drawing no distinction between “clear and convincing evidence” for Terri’s wish and “beyond reasonable doubt” for Terri’s medical condition.
This mention of “a heightened standard of proof” is repeated at page 9 of 10.
I find it odd when a life is stake that DCA did not go into each of the five elements of PVS and the standard of proof of PVS.
Yi-Ling (d3e3a8) — 4/11/2005 @ 8:24 amYi-Ling, do you have a source for the “beyond reasonable doubt” standard applying to anything? Not saying it doesn’t, but this is the first I’ve heard of it.
Xrlq (6c76c4) — 4/11/2005 @ 11:14 amTo: Xrlq
I came up with it after breakfast one day when I had these two sections in my mind & in that mental comparison of section 765.401 and 765.305 (b) Chapter 765 Health Care Advance Directives of Florida Laws as posted by me at http://boards.lp.findlaw.com/cgi-bin/WebX.fcgi?14@199.Z0o8bRRlZHu^1@.ef272cd/15500 detailed how I derived at that point.
I have not heard anyone raise this point of beyond reasonable doubt. Instead reading Matt Conigliaro’s Abstract Appeal blog, first led me to think that the standard of proof was clear and convincing and that it applies to both. Re-reading it after this insight, I realised Matt was silent on PVS std of proof and he was explicit on Terri’s wish std of proof as clear and convincing. Just as DCA made that mistake, so did I.
I then re-read Greer’s judgment and found it there, too. Greer’s judgment of 02-11-2000 at page 6 of 10, 2nd para, Greer said, “Turning to the medical issues of the case, the court finds beyond all doubt that Theresa Marie Schiavo is in a persistent vegetative state or the same is defined by Florida Statutes Section 765.101(2) per the specific testimony of Dr. James Barnhill and corroborated by Dr. Vincent Gambone.”
If you paste http://boards.lp.findlaw.com/cgi-bin/WebX.fcgi?14@199.Z0o8bRRlZHu^1@.ef272cd/15500 on the address section at the top of the web page, you should be able to read the page. If not please let me know, Xrlq.
Yi-Ling (04f332) — 4/11/2005 @ 4:13 pmSorry, Yi-Ling, but you’re wrong. There is absolutely no basis for concluding that either of the statutes you cite requires proof beyond a reasonable doubt. As you’ve already noted, F.S. § 765.401(3) requires clear and convincing evidence, the highest standard applicable to any civil proceedings, to determine the patient’s intent (or, more eerily, for determining that death would be “in the patient’s best interest” if such intent cannot be determined). The other statute, F.S. § 765.305(2)(b), doesn’t even require that. By its terms, all it does require, in this case, is that the surrogate be “satisfied” that the patient is PVS.
Xrlq (5ffe06) — 4/11/2005 @ 4:56 pmTo: Xrlq,
They are sections of the same statute of Florida. The statute is Chapter 765 Advanced Health Care Directives. They are not different statutes, but different sections of the same statute. A misapprehension at that level, suggests a lack of legal grasp of fundamental statutory readings. One with basic legal grasp would never refer to a section as a statute. I will stand corrected if you reply otherwise.
I have to disagree with your opinion that I am wrong. While it is noted, the word used is “satisfied” there is an obvious lacuna as to what is the std of proof. Is anyone contending it should be sufficient we apply the lowest std of proof of preponderance of evidence? Even lower than clear and convincing?
Where life is at stake, to suggest, a “satisfaction” legal determination is less than beyond reasonable doubt, I think , a misapprehension of due process and a misapprehension of the legal process. If you re-read Greer’s judgment, you will note where he deals with Terri’s wish, he is explicit about refering to clear and convincing evidence. And when Greer deals with PVS, he is explicitly silent about clear and convincing evidence. I think you missed the subtlety there.
Yi-Ling (40a190) — 4/11/2005 @ 5:35 pmThe PVS hearing was a civil case, dude, and the law’s the law.
Back to the subject, if Mike were really a jerk he’d fill the urn with some doggie poop and hide the ashes in the basement. Then tubers would be shedding tears over the doggie poop for decades to come and he’d get a good laugh.
But I don’t think he’ll do that – it would be mean.
Richard Bennett (869893) — 4/11/2005 @ 5:53 pmTo Richard Bennett,
If you knew your criminal law, you would know that a civil standard of proof has been applied in a criminal case. If you are one of those who think that only criminal standard of proof of beyond reasonable doubt can be applied in criminal cases, then you are DEAD WRONG, Richard Bennett.
So Richard Bennett, if you REMOVE your self constructed limitation and self created barrier that (1) this civil standard of proof is for civil cases ONLY and (2) this criminal standard of proof is for criminal cases ONLY, you might begin to catch up and wise up to why Greer was careful enough to realize the requisite standard of proof in Terri’s case and craft his judgment the way he did.
A peep at criminal law – defence of insanity & burden and standard of proof of insanity!
* In some jurisdictions, the burden is on the prosecution to prove the accused is sane beyond a reasonable doubt.
* In other jurisdictions, the accused must prove his insanity, generally by a preponderance of evidence.
Does this not dispel your outdated notion that criminal standard of proof is ONLY for criminal cases? How else can you get a “preponderance of evidence” for the defendant to prove his insanity? If we follow your self constructed barrier, then the defendant must always prove his insanity beyond reasonable doubt!
If your self own barrier is removed, you will grasp that is why Greer further at page 8 of 10, of his 2000 judgment, said, “… the patient does not have a reasonable probability of recovering competency, is without doubt satisfied by the evidence”.
Why do you think Greer when he deals with PVS, keeps on referring to “beyond all doubt” and “without doubt”? Wake up!!! Read criminal law on defence of insanity and read Greer’s 2000 judgment again. I will stand corrected if you have re-read your criminal law and Greer’s 2000 judgment and reply otherwise.
Yi-Ling (2508bb) — 4/11/2005 @ 6:25 pmYi-Ling, I’m not going to bother arguing with you over your made-up definition of the word “statute,” because even if it were correct, it frankly wouldn’t matter. There is no substantive legal difference between a “statute,” a “section” and a “chapter,” all of which refer to how statutes are organized, not to what they do. Florida Statutes are Florida Statutes, but if it makes you feel better calling them “Florida Sections,” be my guest.
I am, however, going to argue with your made-up rule that proof beyond a reasonable doubt is the applicable legal standard in any non-criminal settings. This not something to agree or disagree on. It’s something for you to either back up or withdraw. Show us the Florida Statute/Section/whatever that supposedly says proof beyond a reasonable doubt is required under these circumstances. Or admit you have no idea what you are talking about.
Look, I’m not one to argue that life or death matters shouldn’t require proof beyond a reasonable doubt. I’m merely pointing out that they don’t. Only criminal matters do.
Xrlq (816c74) — 4/11/2005 @ 6:40 pmDammit, Yi-Ling, you’re forcing me to agree with Dick Bennett … again. Please get your facts right before arguing legal concepts you clearly don’t understand. You’re not helping the cause – at all.
Xrlq (816c74) — 4/11/2005 @ 6:42 pmTo Xrlq,
I think the only thing that requires looking into, is your assertion, “You’re not helping the cause – at all.” Please explain.
In this Terri instance, I think, is there a miscarriage of justice? I think there is or possibly is, on the issue of finding of fact of PVS whether on lower standard of clear and convincing evidence or on higher standard of beyond reasonable doubt.
I also realised that Greer should have started his judgment with issue of PVS or otherwise, and instead he started with Terri’s wish. I think that belies a lack of grasp that if she is not PVS, then one need not even go into the second issue of what is her wish. On this, tell me, is it true that if she is MCS and not PVS, that, even if it were her wish to be off feeding tube, Florida law forbids it as it would be assisted suicide which is forbidden, except in Oregon [ as yet] under limited circumstances. I would be interested to hear from you on these above points, Xrlq.
Yi-Ling (2508bb) — 4/11/2005 @ 6:53 pmIt means that sometimes, arguing incompetently for the right side is worse than not arguing at all. Analogizing civil cases to criminal ones is fine, but pretending that one is the other is not, and accusing the guy who called B.S. on you of not being able to read a statute really is not.
That’s not what the statute says. As noted above, F.S. § 765.305(2)(b) does not require that the patient actually be PVS, only that the surrogate be “satisfied” that he/she is. If you ask me, that’s a pretty crappy law, but nevertheless, it is the law.
The greater injustice by far, IMO, was a finding of “clear and convincing” with respect to Terri’s wishes, which in reality were neither clear nor convincing. Standing alone, three affidavits from three guys named Schiavo are only marginally more persuasive as three affidavits from three guys named Peterson all asserting Scott Peterson’s innocence in Laci and Connor’s deaths. When rebutted by her entire family, her best friend and at least three treating nurses or nursing assistants, I don’t even think they even amount to a preponderance of evidence. Unfortunately, the federal courts were too busy/lazy/stupid discussing what the 14th Amendment does not require under the inapplicable Cruzan case to even entertain the question of what the 14th Amendment does require. It could be clear and convincing evidence, or it could be less than that, but not more; that’s the one thing that Cruzan really did make clear.
Xrlq (e2795d) — 4/11/2005 @ 7:35 pmXrlq: That’s not what the statute says. As noted above, F.S. § 765.305(2)(b) does not require that the patient actually be PVS, only that the surrogate be “satisfied” that he/she is. If you ask me, that’s a pretty crappy law, but nevertheless, it is the law.
Taking PVS issue further, why does Greer refer back to the Florida statute on definition of PVS? but not expressly refer to § 765.401(3) and § 765.305(2)(b), in the same statute. Would be keen to hear from you this discrepancy or discordance.
I am beginning to wonder, whether Greer applied the right test!! or what is the right test? I say this because –
A) Greer at page 7 and page 8 of 10, goes into great length to cite the three pronged test which the surrogate (in this case the Petitioner/Guardian) must pursue in exercising the patient’s right of privacy, In re: Guardianship of Estelle M. Browning, supra. The surrogate must satisfy the following conditions:
(1) The surrogate ….
(2) The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
(3) ….
B) Greer at page 6 of 10, said, “Turning to the medical issues of the case, the court finds beyond all doubt that Theresa Marie Schiavo is in a persistent vegetative state or the same is defined by Florida Statutes Section 765.101(2) per the specific testimony of Dr. James Barnhill and corroborated by Dr. Vincent Gambone.”
Either one says there is an overlap, OR, there is confusion whether it’s the statute or case law that applies. Maybe you can shed light there, why there is switch back and forth, from case law test to statutory definition. More so, why did Greer not expressly refer to the sections I cited based on another poster using his handle “B. Proud”, drawing those sections to attention of findlaw posters on March 31st 2005 at the site I last referred you to.
I would have thought that any appeals or any critique would first be clear as to what is the test used, issues of what is the standard of proof applicable. What year was In re: Guardianship of Estelle M. Browning decided and what year was it when § 765.401(3) and § 765.305(2)(b), came into force?
So Xrlq, when you say “satisfied” are you talking of “satisfied” under the three pronged, second prong thereof in In re: Guardianship of Estelle M. Browning [ see page 7 & 8 of 10 of Greer’s 2000 judgment] OR the “satisfied” with respect to § 765.401(3) and § 765.305(2)(b), Chapter 765 Advanced Health Directives, Florida Statutes ?
I will take this [ below] in next post
Xrlq: When rebutted by her entire family, her best friend and at least three treating nurses or nursing assistants, I don’t even think they even amount to a preponderance of evidence.
Yi-Ling (984fbb) — 4/11/2005 @ 8:06 pmXrlq: The greater injustice by far, IMO, was a finding of “clear and convincing” with respect to Terri’s wishes, which in reality were neither clear nor convincing.
I think there is no clear and convincing evidence of Terri’s wish to be off feeding tube. Before I explain why I deduce so, I would try to tell you what I think Greer thought when he held that Terri would have wanted the feeding tube removed.
I am referring to Greer’s judgment of 2000, where, there are 6 witnesses. (1) Mother of Terri, Mary Schindler (2) Good friend of Terri, Diane Christine Meyer (3) Father Murphy (4) Michael Schiavo (5) Michael’s brother Scott Schiavo (6) Michael’s sister in law of another brother , Joan Schiavo.
Mary Schindler and Diane Meyer refer to Karen’s case. Both refer to when Terri was 17 . On cross examination, presumably of Mary Schindler first, when shown newspapers of Karen’s story, she agreed that Terri must have been 11 or 12 only. Greer seems to treat this witness as not reliable, without calling her a liar or biased.
Next, Diane Meyer, had this fault of having a poor memory on her deposition and regaining her memory on Karen’s incident in such detail at the trial. So Greer also seemed to treat this witness as not reliable, without calling her a liar or biased.
Then we have Father Murphy, whose trial transcripts on his part only, I chanced, shows a Catholic priest who took his own view and own counsel what is best for his mother, who wanted to die earlier. Looking at US Conference of Catholic Bishops position, I do not think, they would agree with him. I do not know who called him, but if his evidence is as to what Terri might have thought as a Catholic and assuming she has some contact with him, in Church, then it could have been Michael’s witness.
Now we have Michael Schiavo himself. We have many people outside court, critiquing Michael for having suspect motives when he raises issue of requiring $$$ lots of it to keep Terri alive for natural life with high medical expenses. So Terri got $ 750,000 while Michael got $ 250,000 for loss of consortium. Having got that, he is no longer interested in rehabilitating her, treating her infection,… and so, these people think that since Michael is behaving suspiciously and with his fiancée and children form his fiancée, his evidence is not reliable. Greer however does not think some of those things are relevant, and says so expressly. Greer craftily keeps quiet about how much weight he attaches to Michael’s evidence. Greer only says he is relieved that he does not need to rule, whether Michael’s evidence alone rises to clear and convincing evidence. If you are for “death” you would read, he did not give much weight to Michael’s evidence. If you are for “life” you would implicitly read, Greer meant Michael’s evidence is reliable.
Then we have Michael’s family, and if you are already heckled by Michael’s statements to jury on the medical malpractice suits, of his wanting to take care of Terri for life, and his new woman in his love life, then, you would sort of discount the evidence of Michael’s family, whatever they might have said in court. Your mind would be closed up already. But if you look at Greer’s 2000 judgment, Greer finds they are reliable. If you have to agree they are reliable witnesses, Scott Schiavo and Joan Schiavo, then you have to twist and turn and argue that, those incidents are passing comments or that they are not precisely the situation that Terri is in now.
So with that potpourri of evidence, Greer finds that Terri would have wished to her feeding tube off. There is a kind of legal immunization of finding of facts by trial judge.
So my opinion as to the weight to be attached to each witness, & whether Michael’s suspect actions would make him an unreliable witness, is a harder hill to climb than calling on and relying on medical community evidence of what is PVS. While you & I & others would say that, at the trial court, if we were sitting, we would have found there is no clear and convincing evidence to remove her feeding tube, but…
Xrlq: When rebutted by her entire family, her best friend and at least three treating nurses or nursing assistants, I don’t even think they even amount to a preponderance of evidence.
So, coming to my question to you, Xrlq; you mention “at least three treating nurses or nursing assistants” who do not appear as witnesses in the trial court when the finding of fact was made. When and where do these evidence of “at least three treating nurses or nursing assistants” appear in the legal process? How did Greer treat those evidence? Was there a trial, and if not, why not? Was it Greer who heard or read the evidence of “at least three treating nurses or nursing assistants”?
And last but not least, Xrlq, if you look at Father Rob’s report, which is his personal report, not that of the Roman Catholic Church, you might agree that the better bet is still the MCS issue, and the standard of proof of what is PVS and that MCS is not PVS. [ Father Rob’s report was drawn to findlaw posters attention by MD from Philly: see the report of MCS: http://www.nationalreview.com/comment/johansen200503160848.asp If this link does not work, please let me know.
Yi-Ling (984fbb) — 4/11/2005 @ 8:46 pmThe latter.
Xrlq (c51d0d) — 4/11/2005 @ 9:41 pmTo Xrlq:
You say, “The latter.”
What’s your basis for it? You have some legal concepts tucked under your arms, to explain this one?
Also answer, why Greer should say, “The court is called upon the apply the law as set forth In re: Guardianship of Estelle M. Browning, supra, to the facts of the case” if it is “the latter”, as you say.
Also answer why Greer did not refer to your cited, Cruzan case, on standard of proof. I wonder why too, now that you brought it up at your prior post.
I would have thought that if “the latter”
[that is, § 765.401(3) and § 765.305(2)(b), Chapter 765 Advanced Health Directives, Florida Statutes ]applies as you, B. Proud and I think so, Greer would have specifically referred to the sections in question & stated that this is the law applicable instead of cloaking just In re: Guardianship of Estelle M. Browning with “the controlling legal authority” etc.
I would also have thought Greer would have identified each element in 765.401(3) and § 765.305(2)(b), which Michael needed to prove. This absence or silence is chilling!
By the way, just checking, if you agree that there are 5 elements to be proven, per Section 765.101 (12) Chapter 765 Health Care Advance Directives of Florida Laws as listed below, to show it is PVS:-
(1) a permanent and irreversible condition of unconsciousness
(2) there is absence of voluntary action AND
(3) there is absence of cognitive behavior of any kind AND
(4) an inability to communicate purposefully with the environment AND LASTLY,
(5) an inability to interact purposefully with the environment.
Do you agree it is ALL five or only some of the five elements?
Your conceptual explanation, please of Greer’s omission of the Florida statutory provisions, intentional or unintentional.
Yi-Ling (c285b7) — 4/11/2005 @ 11:19 pmTo: Xrlq,
Xrlq: It could be clear and convincing evidence, or it could be less than that, but not more; that’s the one thing that Cruzan really did make clear.
You mention Cruzan for Terri’s wish and also the standard of proof for PVS ?
I am looking at Cruzan v. Director, MDH, U.S. Supreme Court 497 U.S. 261 (1990) and am looking for that needle in the hay stack that says that, Cruzan set the standard of proof for “finding PVA diagnosis” also on clear and convincing evidence. I cannot find it. Can you direct me to it?
Cruzan v. Director, MDH : # “The State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan’s desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan’s observations that she did not want to live life as a “vegetable” did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.” and # “However, for the same reasons that Missouri may require clear and convincing evidence of a patient’s wishes, it may also choose to defer only to those wishes, rather than confide the decision to close family members. Pp. 285-287.”
How do you derive that Cruzan is the legal authority for standard of proof of clear and convincing evidence for a patient’s medical condition. I accept it is THE authority for determining the patient’s wish. But then again, why do we have to resort to Cruzan, when there is an express statutory provision at section 765.401 (3) HEALTH CARE ADVANCE DIRECTIVES of the standard of proof that is required under Florida Statutes that says “a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence.”
Is this a state matter or federal matter?
If it is a state matter, then, why can’t we just look at 765.401 (3) HEALTH CARE ADVANCE DIRECTIVES without relying on Cruzan, and from there, why can’t we take it a step further and ASK what standard of proof should we apply for 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES ? Why can’t we take this bold courageous step?
Granted that section 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES does not explicitly mention the requisite standard of proof that is to be imposed on the surrogate’s satisfaction that the patient is in a PVS, how can I read it liberally in advance of the highest standard of proof? Is there any legal obstruction to reading it for the highest standard of proof, than for the intermediate standard of proof? I would like to be enlightened what this legal barrier or obstruction is, that legally bars forbids prevents a reading that section 765.305 (2) should apply the highest standard of proof.
I do not know what is the basis for US Supreme Court in Cruzan to use “clear and convincing evidence” in the Missouri case of Cruzan. Maybe you do, and you could enlighten me. Is it the Missouri statute in question that spells out “clear and convincing evidence” for the PVS patient’s wishes? Does the Missouri statute have a provision similar to Florida’s 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES which deals with the surrogate’s satisfaction of the patient being in a PVS? If not, what is there to stop us from being adventurous? I would like to be enlightened, Xrlq !
With such enlightenment as you can give me, I can then reconstruct a conceptual basis for “beyond reasonable doubt” for Florida’s 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES , if the prior conceptualization fails to meet jurisprudential standards.
While I grip with Greer on other issues, on this issue of standard of proof, he seems to have taken a more conservative stand of citing “beyond all doubt” and “without a doubt” , not without cause or reason, in his judgment in so far as it relates to Terri’s medical condition. The DCA did not even realize that, and just swept it aside .
DCA at page 2 of 10 said, “The trial court determined based on clear and convincing evidence, that, Theresa Schiavo was in persistent vegetative state and that she herself would elect to forego further use of a feeding tube.” No where in Greer’s judgment can you find Greer holding that “The trial court determined based on clear and convincing evidence, that, Theresa Schiavo was in persistent vegetative state. ”
Alternatively, if you think that silence or vacuum or lacuna in 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES will obtain the legal default position that civil cases must only use civil standard of proof, then you are saying that it can either be preponderance of evidence or clear and convincing evidence but because of Cruzan setting the standard of proof for wishes to be on “clear and convincing evidence” it must then logically follow or the rule must be extended to its limit and also create a rule of finding whether patient is in a PVS on “clear and convincing evidence”. If this is your stretch, why not consider my stretch that I outlined above? If you insist your stretch is the right stretch , give me the authority that says, the legal default in civil cases, probate court cases, is and must be and can only be, civil standard of proof, whether the lowest standard of proof or the intermediate standard of proof.
Yi-Ling (0b1335) — 4/12/2005 @ 1:48 amTo: MD from Philly,
(1) While waiting for Xrlq to revert on the issue of standard of proof of PVS condition under section 765.401 with section 765.305 (2) (a) (b) Florida Statutes, may I suggest you proceed on the 5 elements of Section 765.101 (12) Florida Statutes, on the basis of clear and convincing evidence for each of the 5 elements. I have provided the definition of “clear and convincing evidence” from US Supreme Court Curzan’s case and a general guide from another state below.
From footnote to Cruzan, US Supreme Court decision, 1990, the definition of “clear and convincing evidence”
At the footnote 11 of Cruzan, I noted that “ The clear and convincing standard of proof has been variously defined in this context as “proof sufficient to persuade the trier of fact that the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented,” In re Westchester County Medical Center on behalf of O’Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 892, 531 N.E.2d 607, 613 (1988) (O’Connor), and as evidence which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” ….
From another http://www.judiciary.state.nj.us/civil/charges/119.htm for your reference:-
“Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.
The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.”
Please proceed with standard of proof as “clear and convincing evidence” for the moment based on the above definitions, in particular the one footnoted at Cruzan’s.
Thus please proceed with your determination of the medical facts to
section 765.305 (2) (a) Florida Statutes as well as section 765.305 (2) (b) Florida Statutes, requiring the surrogate must be satisfied “on clear and convincing evidence” that
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient’s physical condition is terminal.
(2) MD from Philly, also from Curzan, I draw some useful references to PVS for your reference.
At the footnote 1 of Cruzan, I noted that one Dr. Fred Plum, the creator of the term “persistent vegetative state” and a renowned expert on the subject, has described the “vegetative state” in the following terms:
“`Vegetative state describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heart beat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner.'” In re Jobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (1987).
Further at [ Footnote 9 ] to JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
The American Academy of Neurology offers three independent bases on which the medical profession rests these neurological conclusions:
“First, direct clinical experience with these patients demonstrates that there is no behavioral indication of any awareness of pain or suffering.
“Second, in all persistent vegetative state patients studied to date, post-mortem examination reveals overwhelming bilateral damage to the cerebral hemispheres to a degree incompatible with consciousness . . . .
“Third, recent data utilizing positron emission tomography indicates that the metabolic rate for glucose in the cerebral cortex is greatly reduced in persistent vegetative state patients, to a degree incompatible with consciousness.” Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan. 1989).
(3) Incidentally, since we speak of Curzan,
[ Footnote 1 ]to Curzan:
The State Supreme Court, adopting much of the trial court’s findings, described Nancy Cruzan’s medical condition as follows:
“. . . (1) [H]er respiration and circulation are not artificially maintained and are within the normal limits of a thirty-year-old female; (2) she is oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli; (3) she suffered anoxia of the brain, resulting in a massive enlargement of the ventricles filling with cerebrospinal fluid in the area where the brain has degenerated and [her] cerebral cortical atrophy is irreversible, permanent, progressive and ongoing; (4) her highest cognitive brain function is exhibited by her grimacing perhaps in recognition of ordinarily painful stimuli, indicating the experience of pain and apparent response to sound; (5) she is a spastic quadriplegic; (6) her four extremities are contracted with irreversible muscular and tendon damage to all extremities; [497 U.S. 261, 267] (7) she has no cognitive or reflexive ability to swallow food or water to maintain her daily essential needs and . . . she will never recover her ability to swallow sufficient [sic] to satisfy her needs. In sum, Nancy is diagnosed as in a persistent vegetative state. She is not dead. She is not terminally ill. Medical experts testified that she could live another thirty years.” Cruzan v. Harmon, 760 S.W.2d 408, 411 (Mo. 1988) (en banc)
[ this was not disputed by the parties the Curzan case]
(4) I wish I could have done more to explain the law, but I apologise for my limitations, and my delay in coming to a firm view, that then adds more work to your determination.
I trust the above suffices for you to parse the documents you deem necessary for you to determine whether Terri is PVS or MCS, and how the court erred in holding Terri is PVS, if you determine Terri is MCS.
Over to you, Philly.
Yi-Ling (e224d2) — 4/12/2005 @ 6:38 amNo, the word came right out of the statute itself.
I never claimed it was. The standard of proof is what the statute says it is. Which in this case is merely that the surrogate be “satisfied” that the criteria are met.
Even as to intent, Cruzan does not say a state must require clear and convincing evidence to avoid unconstitutionally depriving a citizen of life without due process of law. All it does say is that a state may require that level of evidence without depriving a citizen of liberty without due process of law. The Cruzan court did not rule on how much evidence a state actually had to require, as that question was not before it. That was the question the federal courts should have decided in Schiavo’s case, but again, as to her intent, not as to whether she was PVS. It seems pretty clear that Florida’s crappy little standard on that count was met, i.e., Michael Schiavo was surely “satisfied” that all the above criteria were met. Whether they actually were or not is another question altogether.
Xrlq (c51d0d) — 4/12/2005 @ 7:15 amXrlq: That was the question the federal courts should have decided in Schiavo’s case, but again, as to her intent, not as to whether she was PVS.
I do not know what is your basis for saying that. From what I gather of the emergency application for stay of enforcement before the US Supreme Court dated March 17, 2005, one of the many grounds where the Schindlers contend Terri has been denied federal due process and equal protection rights by the Florida court, are:
#(G) Petitioners assert that the finding of the trial court that their daughter, Theresa Marie Schiavo, is in PVS, if ever true, is no longer accurate and that she currently demonstrates a much higher level of cognition.
# (J) Petitioners, Robert and Mary Schindler have observed their daughter nearly every day for over fifteen years and they are convinced that she meets at least the criteria for a minimally conscious state (“MCS”), and that she had she been given any rehabilitation over the last twelve years her condition might have been significantly better than it is today. Nonetheless, on March 9, 2005, the trial court rejected their application- supported by the declarations of thirty-three physicians and speech therapists- to conduct further medical testing with the state of art diagnostic procedures of the type described in the article quoted below: (App. , p. 78)
Xrlq, maybe you are aware of the issues before the federal court that did not take the above stance? Please explain.
Xrlq: It seems pretty clear that Florida’s crappy little standard on that count was met, i.e., Michael Schiavo was surely “satisfied” that all the above criteria were met. Whether they actually were or not is another question altogether.
The proxy is the court. Michael is not the proxy for purpose of Florida statutes we are dealing with. In fact this is one of the issues that Schindlers kept on raising as to how the court could function in dual capacity as [health care] proxy and judge at the same time.
The “satisfied” party would have to be Greer as proxy and judge.
Surely, “satisfied” cannot be without reference to standard of proof? Satisfied to what extent?
Satisfied on preponderance standard?
Satisfied on clear and convincing standard? Satisfied on beyond reasonable doubt?
Xrlq, are you suggesting now that “satisfied” has no standard of proof at all? That it is purely subjective “satisfaction”?
Yi-Ling (15a590) — 4/12/2005 @ 7:39 amTo: Xrlq,
So Xrlq, when you say “satisfied” are you talking of “satisfied” under the three pronged, second prong thereof in In re: Guardianship of Estelle M. Browning [ see page 7 & 8 of 10 of Greer’s 2000 judgment] OR the “satisfied” with respect to § 765.401(3) and § 765.305(2)(b), Chapter 765 Advanced Health Directives, Florida Statutes ?
Xrlq: The latter.
I still do not know where you see the “latter” and what you mean. Cryptic! Please explain again.
But since then I have found the DCA leaning forward to gloss over Greer’s oversight. Refer Order March 16, 2005 of District Court of Appeal of Florida, 2nd District, at page 9 of 10, at footnote [3] where Chief Judge Altenbernd footnoted :
[3] …..In this case the trial court made the decision that “would have been the one the patient would have chosen had the patient been competent” See Section 765.401(3) Fla. Stat. (1997).
Note that the Section 765.401(3) Fla. Stat. (1997) was passed /came into force in 1997, that is seven (7) years after the Browning case that Greer relied on wholly except for statutory definition of PVS in Fla. Stat.
In the body of the judgment which refers to footnote [3], it reads:
“The trial judge followed and obeyed the law as set out by the precedent of the Supreme Court of Florida and by the general laws adopted by the Legislature”.
I ask, how did Greer follow “the general laws adopted by the Legislature”, when Greer did not realise they are the applicable laws adopted by the Legislature, three (3) years ago in 1997, at time of his judgment of 2000?
The DCA was bending over backwards to gloss over this legal oversight of Greer in his 2000 judgment.
Yi-Ling (15a590) — 4/12/2005 @ 7:55 amSatisfaction is, by and large, a subjective standard. If you buy a product that says “satisfaction guaranteed,” and you’re not satisfied, you get to return it, no questions asked. I doubt the Florida courts are quite that cavalier about “satisfaction” here, but they’d be within the plain meaning of the statute if they were. I suppose you can argue that if Judge Greer actually thought the odds were only 51%-49% that Terri was PVS, he could not be reasonably said to be “satisfied” she was in that condition, but it’s quite a stretch to say that clear and convincing evidence would not be enough to accomplish that. Have you ever been “clearly convinced” that something was true, yet not “satisfied” of the same?
Xrlq (6c76c4) — 4/12/2005 @ 8:54 amXrlq: …. I suppose you can argue that if Judge Greer actually thought the odds were only 51%-49% that Terri was PVS, he could not be reasonably said to be “satisfied” she was in that condition, but it’s quite a stretch to say that clear and convincing evidence would not be enough to accomplish that.
That means you say, Greer could have addressed his mind to the meaning and import of the word “satisfied” found at § 765.305(2)(a)(b) Florida Statutes, when his entire judgment of 2000 did not refer to § 765.305(2)(a)(b) Florida Statutes at all. Greer only had Browning case before him.
The counsel were sleeping and failed to alert to him the applicable law in Florida Statutes, as to what he should be satisfied with.
Greer also failed to realize that § 765.305(2)(a)(b) Florida Statutes is applicable to Terri’s case.
The DCA picked it up for Greer and asserted that Greer had considered the precedent of the Supreme Court of Florida [ Browning case & others] and by the general laws adopted by the Legislature [§ 765.305(2)(a)(b) Florida Statutes] when in fact Greer had only considered Section 765.101 (12) Florida Statutes, but NOT § 765.305(2)(a)(b) Florida Statutes NOR Section 765.401(3) Florida Statutes either.
So Xrlq, when you say that “but it’s quite a stretch to say that clear and convincing evidence would not be enough to accomplish that.” you assume Greer had read § 765.305(2)(a)(b) Florida Statutes and then decided “Aha!” I shall also use “clear and convincing standard”.
I shall round this up for Philly, by saying that, pending further research in future as to use of highest standard of proof in civil cases, like Terri’s genre’ where life – liberty are at stake, and analogizing with the legal grounding of right to refuse treatment in both the common law and a constitutional right of privacy. I could still end up at where Xrlq said, that criminal standard of proof of beyond reasonable doubt cannot at all be used in civil cases, save where there is express provision in the actual wording of the statute.
While I think the standard of proof can be set out explicitly in the statute, it can ALSO be be carved out in case law. If Greer’s indication of “beyond all doubt” , “without a doubt” had been picked up and followed by the DCA, then case law in Florida would have carved out the niche of “beyond reasonable doubt” for § 765.305(2)(a)(b) Florida Statutes.
However DCA clearly killed any hopes for that as they stated explicitly that “The trial court determined, based on clear and convincing evidence, that Theresa Schiavo was in a persistent vegetative state and that she herself would elect to forego further use of a feeding tube.”
In other words, even when Greer himself said “beyond all doubt” , “without a doubt” vis a vis “PVS finding of fact”, the legal standard of proof, as legal fiction, is that, Greer applied the “clear and convincing standard”, but found the evidence so overwhelming that Greer had to say, Gee whiz !!! Its also “beyond all doubt” , “without a doubt”.
In short it means, that, for the moment, I hereby ask Philly to proceed with clear and convincing evidence for determining PVS.
Xrlq: Have you ever been “clearly convinced” that something was true, yet not “satisfied” of the same?
Gee what a quiz? You betcha tell me what you mean.
c.c. MD from Philly : Please proceed on the basis that the standard of proof is clear and convincing evidence/standard, and please ignore my rumblings about beyond reasonable doubt. I will also correct myself on findlaw as well. Thanks. Look forward to your medical views, Philly.
Yi-Ling (dd885e) — 4/12/2005 @ 9:30 amThat’s basically right. Saying “there is no doubt” is not the same thing as saying “the legal standard requires there to be no doubt.”
Xrlq (6c76c4) — 4/12/2005 @ 10:17 amXrlq: That’s basically right. Saying “there is no doubt” is not the same thing as saying “the legal standard requires there to be no doubt.”
I genuinely think, Greer intended and decided that the standard of proof was beyond all doubt. Just that DCA ruled otherwise and interpreted it as clear and convincing standard. There is much in Greer’s judgment that is open to interpretation, like the example I gave earlier, where, 3 people reading his judgment can come with different view as to what weight he attached to Michael’s evidence. One can say, no weight, another can some weight, and another “reliable”.
If you have the time, read his judgment line by line and you will grasp his style of writing. I am still astonished at the fact that Greer omitted reliance to Florida statutes save for definition of PVS and instead relied on older law of Browning, as the three pronged test.
Yi-Ling (dd885e) — 4/12/2005 @ 11:06 amTo: MD from Philly, this is it
http://boards.lp.findlaw.com/cgi-bin/WebX.fcgi?14@232.4dlkbf8b0XR^0@.ef272cd/15543 . The change-addition is this:-
“FOR AVOIDANCE OF DOUBT, the operative and controlling definition of a PVS is Florida Statute, that is then, the 5 elements of Section 765.101 (12) Florida Statutes, in prior post part 1 of 2, Philly. The above in Curzan case is to show the Missouri case which went to US Supreme Court in 1990.”
Many thanks to Xrlq and Dick Bennett.
Yi-Ling (09d77d) — 4/12/2005 @ 10:23 pm[…] e his wife’s remains from her parents, he has done the next best thing. Despite the existence of a court order that he inform the Schindlers of any memorial serv […]
Patterico’s Pontifications » Michael Schiavo’s Latest: Using Terri Schiavo’s Gravestoneto Take a Dig at Her Parents (0c6a63) — 6/21/2005 @ 6:53 amIt’s so interesting:,
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