Life and Death Matters
by Max Lapertosa, Kenneth M. Walden and Diane Coleman.
ATTORNEY MAX LAPERTOSA.
PHOTO BY TOM OLIN.
Terri Schindler-Schiavo sustained massive brain damage in 1990. Her husband, Michael Schiavo, has petitioned Florida courts in order to exercise her "right" to die, and has had her "placed" in a hospice although she is not ill. (She is awake and apparently aware although she does not speak.) Twice he has won permission to have her killed. She survived three days without food and water when a court ordered it discontinued. Her parents, Bob and Mary Schindler, appealed both decisions, and continue to fight for her life. See her brother Robert's website, http://www.terrisfight.org.
The brief quoted here made its appeal on three points of law: 1. That the lower court failed to determine whether Ms. Schiavo would have wanted to die given the new medical information on her condition; 2. That the lower court misapplied the legal standard for determining whether Ms. Schiavo is in a persistent vegetative state; 3. That the proposed starvation and dehydration would violate the ADA
Even if reasonable minds disagree on any of these issues, any doubt or uncertainty counsels against death. ...
Despite hearing evidence from doctors with [what the court called] "very impressive credentials" that Ms. Schiavo is not in a persistent vegetative state, and despite finding that she exhibited signs of cognition and thought, the court authorized her death. ...
If the legal standard of proof in cases involving termination of life support is watered down to the point where Ms. Schiavo's "quality of life" as determined by others justifies her death, then one cannot distinguish Ms. Schiavo from anyone else who is "incompetent," including thousands who cannot speak due to developmental or physical disabilities. It is naïve to believe such attitudes would not be used to justify the deaths of people with severe disabilities if the opportunity arose. ....
These attitudes, which have a long and ugly history as justification for the sterilization or elimination of people with disabilities, may be nothing more than privately held prejudices. Yet they don the cloak of public sanction every time a court lowers the constitutional bar on substituted judgments and consequently broadens the category of people with disabilities whose lives may be terminated. ...
Contrary to Florida law and established medical practice, the trial court imposed a new requirement that persons with severe disabilities demonstrate not just voluntary action "of any kind," as the state law's plain language specifies, but rather "consistent" and "reproducible" actions or responses to establish their own cognition. ... [This} new standard would ... potentially subject thousands of people with severe cognitive disabilities to third-party enforcement of their "right" to die. ...
While recognizing a general right to refuse treatment, including life-sustaining measures, the Court [the U.S. Supreme Court in Cruzan v. Missouri] ... rejected not only lesser standards of proof but also the objective "best interests" standard, finding that "We think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy..." ... The Cruzan Court recognized the far greater danger lay in deciding wrongly that the person would want to die: "...An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction." ... The Court recognized that in "some unfortunate situations... family members will not act to protect a patient."
There is no dispute Ms. Schiavo has neither a "terminal" nor an "end-stage" condition. The only dispute is whether she is in a "persistent vegetative state." If she is not, the trial court may not, under Florida law, authorize a surrogate to terminate her life under any circumstances. Florida law defines "persistent vegetative state" as follows: "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." .... The trial court found that "at first blush, the video of Terri Schiavo appearing to smile and look lovingly at her mother seemed to represent cognition. This was also true for how she followed the Mickey Mouse balloon held by her father." [Even so, that court ordered her death. ed.]
Absent proof that it is truly the person's decision, withholding medical care based on the belief that he or she would rationally want to die because of a disability is discriminatory. Because of bias against disability and ignorance about the support systems and successful coping strategies that preserve autonomy, meaning and pleasure in life, some physicians have decided that some deaths are more rational than others and that ill and disabled people do not deserve the same type of health care that "competent" people would receive.
Quoted in the brief, the K. Andrews study, "Misdiagnosis of the vegetative state" from the British Medical Journal: "Of 40 patients referred as being in the vegetative state, 17 (43%) were considered as having been misdiagnosed; seven of these had been presumed to be vegetative for longer than one year, including three for over four years. Most of the misdiagnosed patients were blind or severely visually impaired. All patients remained severely physically disabled, but nearly all were able to communicate their preference in quality of life issues some to a high level."
Also quoted, from Look Up for Yes, J. Tavalero, 1997: "Thirty years ago a stroke left me in a coma. When I awoke I found myself completely paralyzed and unable to speak. For six years I was considered brain dead. I was not."
The entire brief is on-line at www.notdeadyet.org.