for the sake of accuracy
Phoenix32890 wrote:
This is a tragic case. But emotion should not be a part of it. Law should!
Basically, it is very simple. A woman is in a vegetative state. Her husband is the legal next of kin, and legally has the right to determine whether a feeding tube should be removed. He wants it removed. The law is satisfied. Period.
Phoenix, you have misstated the law.
Michael Schiavo does NOT have the right to remove his wife's feeding tube as a matter of law simply because he's her legal husband.
That's not the law in Florida.
The law provides that every individual has the right to accept or refuse medical treatment after being informed of all medically relevant information including the possible risks and benefits of the treatment. This is called "informed consent."
The law also provides that every individual has the right to life.
In the absence of an individual's clear expression of a contrary intent, there is a presumption in favor of an individual's right to life.
Accordingly, the common law recognizes that any medical procedure performed upon you without your informed consent is a tortious battery. But, what if you are unable to give your consent for some reason? The law presumes that you would want to live and would want life-saving procedures taken to save your life.
If you were in a restaurant and started choking to death on a piece of meat -- and if a doctor (or a good samaritan) was sitting at the next table -- would you want him to perform the heimlich manever on you and dislodge the piece of meat so you could breathe or would you want him to allow you to die from choking?
If you were swimming in a lake and began to drown, would you want a good samaritan to initiate a rescue and save your life or would you want him to allow you to die from drowning?
There is a presumption in favor of life. We can presume that you would want to live and would welcome attempts to save your life. Most states have laws that protect good samaritans from any civil liability for their attempts to save your life.
The same applies if you collapse in your home and an ambulance is summoned. The law presumes that you would want emergency medical personnel to do everything in their power to save your life.
Yet, the law also recognizes that there may be situations wherein you would choose to refuse life-saving procedures. If you had full use of your cognitive and communication skills and were told that your medical situation is dire, there is no hope of recovery, and that the only way you can be kept alive is through the use of machines, you would have the right to refuse treatment. Based upon all the information provided to you, you could make the decision to refuse treatment and to stop any herioc or extraordinary means, including the use of artificial life support, to keep you alive.
But, what about the times when you cannot speak for yourself? The law allows you to execute an advance directive that will speak on your behalf when you cannot speak for yourself. Advance directives are often called living wills. In the event that you are suffering from a terminal illness or a condition with no hope of recovery and you are unable to speak for yourself, you can place instructions in your medical records concerning the use of herioc or extraordinary measures, artificial life support, and nuitrition and hydration. If you do so, your wishes as evidenced by your clear and unambiguous, written advance directive will be honored.
In some states, even if you have not left an advance directive, your wishes that you be "allowed to die" can still be honored if there is clear and convincing evidence of what your wishes are with respect to the specific circumstances that you find yourself in.
THUS, the law does not give Michael the right to terminate his wife's food and water simply because he is "next of kin." The law requires Michael to provide clear and convincing evidence that Terri HERSELF would make the decision to remove her feeding tube given the circumstances she now faces. The clear and convincing evidence has to be sufficient to rebut the presumption in favor of life.
In every court in the land, HEARSAY evidence (out-of-court statements offered into evidence to prove the truth of the matter asserted) is inadmissible as untrustworthy and unreliable. There are very few exceptions to the hearsay rule, and those exceptions are based upon independent indicia of reliability.
In the Cruzan case, the state's highest court refused to accept hearsay evidence that Nancy Cruzan wouldn't want to live hooked to machines as clear and convincing evidence that she would wish to have her feeding tube removed.
The law doesn't give a damn what Michael wishes are as Terri's next of kin. The law only cares about what Terri herself would wish -- IF, and ONLY IF, we can clearly and convincingly KNOW her wishes.
Unfortunately, the trial court judge accepted Michael's hearsay evidence (bolstered by Michael's brother and the wife of Michael's brother) as "clear and convincing" evidence of Terri's wishes and rejected all other evidence to contrary and dismissed all evidence that challenged the
credibility of Michael's hearsay evidence as "NOT RELEVANT." What?
The contradictory hearsay evidence in Terri Schiavo's case does not amount to clear and convincing evidence of her wishes as a MATTER OF LAW. Yet, every appellate court has treated the trial court's finding that Terri herself would wish for the removal of the feeding tube as a FINDING OF FACT that cannot be reviewed on appeal.
In my opinion, the lawyers for Terri's parents have dropped the ball. They failed to raise Terri's substantive due process claim and have instead focused on alleged procedural due process errors in their fight to save Terri's life. In doing so, they have compounded the errors in this case to the point of contributing to Terri's death.
Terri has a substantive due process right to life -- Terri has NEVER clearly and convincingly waived that right to life -- and the state cannot take that right away from her (regardless of the fairness of the procedures used) unless it has a compelling interest in doing so.
When applying the presumption in favor of life; quality of life does not even enter the picture. Neither the state nor any other person in this world can make any judgments about the quality of another person's life.
BUT . . . the fact remains that you are spreading misinformation on the law. Michael Schiavo does NOT have the right, as Terri's next of kin, to remove Terri's feeding tube.
