In California, Terri Schiavo Might Have Lived

Dr. Jay Wolfson, who served for a brief time in late 2003 as Terris Schiavo’s court-appointed legal guardian, was interviewed this week on MSNBC. Dr. Wolfson believes that the evidence adduced at trial about Terri’s wishes was sufficient to support pulling her feeding tube.

Dr. Wolfson got it almost right. But not quite. And, unfortunately, because Dr. Wolfson and so many other people have missed the mark, Terri Schiavo is now close to death.

I do not believe that the available evidence about Terri’s pre-disability wishes justifies bringing about her death. And it is quite possible that the California Supreme Court would not, either.
I successfully litigated the case of Robert Wendland here in California, a case remarkably similar to Terri’s in which Robert’s wife squared off against his mother. However, the California courts did not sanction removing Robert’s feeding tube.

Why? Because the evidence presented by his wife of Robert’s comments about his pre-injury wishes, made in part during arguments over Robert’s drinking problem, was insufficient to support a finding, by clear and convincing evidence, that Robert would have wanted to die by dehydration and starvation.

And that is the point that Dr. Wolfson, along with virtually all of the other commentators I have been listening to for the past week, have totally missed.

It is one thing to say “Oh, I wouldn’t want to be disabled.” It is one thing to say, “I would not want to just lie in a bed all day, unable to [insert the activity you look forward to most each day].” And it is one thing to say, after observing someone on a respirator, asTerri allegedly did, to say, “I don’t want to be like that.”

It is quite something else to say “I wouldn’t want to live ‘like that,'” knowing full well that in order to escape life as a cognitively disabled individual, you might have to die via dehydration and starvation over a period of up to two full weeks.

Robert Wendland allegedly made statements to his wife about not wanting to be left “like that,” meaning in a compromised, disabled condition. He also supposedly said that if he couldn’t be “a husband, father, and provider,” he wouldn’t want to continue living. (In his disabled state, Robert continued, of course, to be all of those things; he “provde[d]” for his family via Workers’ Compensation benefits, among other ways.)

Unfortunately, however, Rose Wendland presented no evidence on the question of whether Robert ever expressed an understanding that not leaving him in a disabled state for an extended period of time might possibly involve death by dehydration and starvation. (And you can ignore those experts who say that it is not painful or grueling because they are, simply, wrong. Even Ronald Cranford, M.D., the real “Dr. Death” in this country — a title he wears proudly — testified in the Wendland trial that Robert’s death by dehydration would be painful. And note news reports from Florida that Terri is receiving morphine.)

In this country, we have laws governing the medical profession. ou cannot undergo the simplest medical procedure unless you give the physicians, hospital, et. al. “informed consent.” Your doctor is obliged to spell out the benefits and risks of surgery to you and provide you an opportunity to ask questions about potential side effects, recovery time, etc.

Why should we require anything less when we contemplate deliberately bringing out the death of a cognitively disabled individual?

The deceptively clear answer is: “We shouldn’t.”

Before a feeding tube is removed and a disabled individual sentenced to die a grueling, prolonged death such as the one that Terri is experiencing even as I write this, there must be evidence presented that the patient in question knew and appreciated that the only way to release them from living in their disabled state might involve such a — as George Felos insists on referring to it – “death process,” and found such an exit from this world acceptable.

Comments that Terri made about removing patients from respirators do not meet the evidentiary hurdle I am describing. Death following the removal of a respirator comes in mere minutes. Terris is in her eleventh day of suffering from dehydration.

Moreover, it can now be told that I had the “smoking gun” in the Wendland case but never got to fire it. My client prevailed in that matter by demonstrating that Rose Wendland and Robert’s court-appointed attorney (who, ironically, advocated for his death) bore the legal burden of producing clear and convincing evidence to support their claims. The courts agreed that they did not sustain that burden and the trial ended without the need for me to make an opening statement, call witnesses or introduce any evidence of any kind.

The evidence I would have presented involved conversations Robert had with his family about feeding tube cases. In particular, he discussed the 1986 California case of Elizabeth Bouvia, a profoundly disabled woman who successfully fought for the right to have her own feeding tube removed. Robert believed that death via removal of a feeding tube was a terrible way to die — and made clear that he would never want to die in that fashion.

In my estimation, those statements would have legally trumped any vague, nondescript comments such as “I wouldn’t want to live ‘like that'” attributed to Robert by his wife and brother.

And that is why Terri Schiavo should not be, at this very moment, dying a cruel and torturous death. The trial court in Florida heard absolutely no evidence that Terri knew, understood, appreciated or consented to the kind of “death process” that has been foisted upon her.

For that reason, I believe that Terri’s father, Bob Schindler, is absolutely correct when he calls her death “judicial homicide.”