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« A Test of Patience | Main | On Doctrine and Joy »

Comments

Catez

Great idea Dory - there are some excellent posts and I'm glad to see some of those here. God bless you.

kim voss

Life is Life. Just like marriage is marriage. When we say I do, it's suppose to be until death do we part. Perhaps Terries husband recollects back on that moment and this is his way of the "PART" regardless of what happens to Terri, it's consoling to know he'll have to answer to GOD why he murdered his own wife, when he promised through sickness and health until death do we part. Our prayers our with you Terri,LOVE KIM

Jane

I understand the gist of the legal arguments below have been made before on appeal, and been rejected -- however, it is important for the record to reflect that Judge Greer has NOT followed Florida statute. Furthermore, it may be possible to raise a fresh claim, as described below.

A study of Florida Statutes Ch. 765 and the court record indicates Judge Greer has NOT followed the clear language of the Florida statutes. His description of Ms. Schiavo in his 2003 court order, in his own words, proves Terri does not meet the statutory definition of PVS. The statutory definition says that ANY kind of cognitive behavior means a person is NOT PVS. However, he judicially determined that Terri was in PVS because her responsiveness was "inconsistent" -- he recognized some cognitive behavior in Ms. Schiavo, but not enough to elevate Ms. Schiavo above HIS OWN defintion of PVS.

Here is the statutory definition of PVS that the court SHOULD read and apply:

765.101 Definitions.--As used in this chapter:
(12) "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.

Prior to withdrawing life prolonging measures, Ch. 765.305(2)(b)-- Procedure in absence of a living will-- requires a finding of either PVS (as statutorily defined), or a scenario of "end-stage" or terminal condition. Ms. Schiavo is not terminal or end-stage -- therefore, if this section applies, a finding of PVS would be required by the clear language of the statute, prior to the withdrawal of the feeding tube.

Ch. 765.401 -- Absence of Advance Directive, The Proxy -- which I believe is the authority used by Judge Greer as Ms. Schiavo's proxy, in clause (3)states: "Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest." I would argue that the requirement related to the patient's choice should be IN ADDITION to the Ch.765.305 requirement of a PVS/end-stage condition, not a substitution.

The new medical affidavit of Dr. Cheshire, and Judge Greer's own 2003 opinion, indicate Ms. Schiavo does not meet the statutory definition of PVS. Therefore:

1. Withdrawal of nutrition/hydration would constitute an "affirmative or deliberate act or omission to end life other than to permit the natural process of dying" in contravention of Ch. 765.309 -- i.e., it would constitute prohibited euthanasia or "mercy killing".

2. Relatives or DCF, as an interested party, may have a new claim under Ch. 765.105 - Review of surrogate or proxy's decision. Even though this may have been appealed before, I would argue the March 18th action comprises a new "decision" that would be appealable under Ch. 765.105, which gives "the patient's family, the health care facility, or the attending physician, or any other interested person who may reasonably be expected to be directly affected by the surrogate or proxy's decision concerning any health care decision ... expedited judicial intervention pursuant to rule 5.900 of the Florida Probate Rules, if that person believes:

(1) The surrogate or proxy's decision is not in accord with the patient's known desires or the provisions of this chapter; ...

(5) The surrogate or proxy has abused powers;...."

FACT: The Proxy's (i.e., Judge Greer's) decision on March 18th to remove the feeding tube is "not in accord with [Ch. 765]" because Ms. Schiavo does not meet the STATUTORY definition of PVS, based on the language in Judge Greer's 2003 Order related to the PVS finding, and based on the new affidavit of Dr. Cheshire.
IF the court argues that a Ch. 765.401 proxy decision to withdraw life prolonging measures only requires a determination of Ms. Schiavo's wishes, and not a finding of PVS/end-stage, there is still a Ch. 765.105 claim (challenge to Proxy decision) based on the Proxy's abuse of power, including failure of the Proxy (Judge Greer) to visit his Principal (Ms. Schiavo) to be in a position to determine her wishes. However, I strongly argue that Ch. 765.401 wouldn't make sense if the standard related to the patient's wishes were not an EXTRA level of protection, rather than an alternative standard of protection. However, I understand there is already Florida case law stating PVS is not a prerequisite - I have not had time to research and distinguish it. In my view, the better argument is that a finding of PVS/end-stage must be a prerequisite in any "substituted judgement" (proxy) case, such as Ms. Schiavo's. Only after that prerequisite is met does the proxy advance to the question of what the patient would have wanted.

It appears Judge Greer is provoking a constitutional crisis through his failure to read and follow the clear language of the Florida statutes. Where are the checks and balances of our three-branch government?

Gene

I wonder why Judge Greer is so determand to end Terri's life? Maybe I'm Wrong, but I wonder if there is a under the payoff to the judge?

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