by David Gibbs
He explained that American law was originally based upon English law and that English law had been established upon an absolute standard, written down by William Blackstone in a universally used legal textbook called ‘‘Blackstone’s Commentary.’’ Evidently, Mr. Blackstone quoted from the Bible 80–90 percent of the time in this legal textbook, the first one used in America. So in a pre-computer, pre-law book era, judges established a consistency in the English and early American courts by saying, ‘‘If you know the Bible, then you have an understanding of the law.’’
Even the phrase ‘‘One Nation Under God’’ stamped on our money was designed to demonstrate that this was a nation that recognized God as the ultimate authority. Our president is sworn into office by placing a hand on the Bible. Witnesses about to give testimony in court are sworn to tell the truth by placing their hand on the Bible. These and similar actions reveal our nation’s religious roots.
Fifteen years before Terri died, my professor said that the common law in America was dead, that the commitment to absolute truth and the notion of absolute right or wrong are gone. I imagine someone in the class might have wondered, What’s the big deal? Times change. The needs of a nation change. What could be so bad about living in a time in which courts base their decisions on statutory law?
What is statutory law anyway?
Statutory law is whatever legislators elected by the people decide is legal at any given moment—and that can change from year to year. It’s whatever 51 percent of the leaders, politicians, or courts approve, even if it’s inconsistent with what’s been done in the past. Which is why prostitution is illegal in forty-nine states, with Nevada permitting it in certain counties. The problem with this approach is that there is no longer any controlling moral authority for American law.
Back in law school the far-reaching implications of a shift from common law to statutory law never really sank in with me. I didn’t fully understand it until I began to work within the American justice system. There, I quickly saw that an attorney couldn’t walk into a courtroom and say to the judge, ‘‘Your Honor, killing a disabled person is not right.’’ Judges today will say, ‘‘I’m not going to let your personal opinions or my personal beliefs get in the way here. I will listen to the merits of the case, read the statute, and make my ruling.’’
But when there is no morality in the law, no absolute standard anchoring it, and with ‘‘the law’’ being decided literally year to year and case by case, it’s inevitable that personal opinions are going to be the controlling component because there is no other absolute dominant moral force to say ‘‘this is the right’’ or ‘‘this is the wrong.’’
In short, the court takes the place of God.
When America was anchored to the common law, we could have confidence that the Bible offered the restraining moral influence in our society and in our policies. Today, there is no restraining influence. What does all of this have to do with Terri Schiavo?
Plenty.
The Schindlers lost their fight for Terri’s life because they lacked money to wage a proper defense; they found themselves before a judge who saw no value in saving the life of their daughter; and the court was no longer constrained by the biblical notion of the absolute value of human life.
Make no mistake about it: When mortal man denies there is no supreme authority greater than his own mind, he exists in a state of supreme denial. There is a God. He has spoken. He has given us the tools and the basis for law. America once recognized this reality, but over the last fifty years or so, she has been duped into accepting a lower standard of right and wrong. As a result, we are now witnessing the cheapening of human life.
Indeed, as a young law school student, I never dreamed there would come a day when the academic discussion I barely understood then between common law and statutory law would have such profound implications in the fight for life in America. I never fathomed that a day would come when I’d walk into a hospice room and witness the grotesque starvation of a fellow American. In that regard, I was completely unprepared for the most difficult experience of my life: watching a woman dehydrate and starve to death with my own eyes, helpless to save her.
WHAT CAN BE DONE TO SAVE OTHERS?
Six Policy Suggestions
1. At the very least, no court should be permitted to order an innocent person to die by starvation and dehydration without first having a legally sufficient statement such as a written living will or health care surrogate in writing, with signatures and witnesses appropriate to those required for any other legal document.
2. The category of persistent vegetative state (PVS) is reportedly misdiagnosed approximately 43 percent of the time, condemning to death even those people who may have a hope of recovery. At a minimum, states should require an appropriate cognitive assessment review to be done immediately before a feeding tube is removed.
3. A spouse who has entered into another committed relationship and, therefore, has a conflict of interest with the ward, should not be permitted to continue to serve as a guardian for the disabled spouse. In this case, Terri’s husband, Michael, had set up a new home with another woman with whom he had two children over a ten-year period. Michael and Terri had been married for only five years before her collapse. When Michael moved on with his life, the better public policy would have been for his decision-making power over Terri to have legally ended.
4. Food and water should never be seen as extraordinary medical treatment but should be treated as ordinary care—something to which every American is entitled, no matter what their physical or mental condition.
5. Whether a person will ever ‘‘get better’’ should not be a valid reason to end their life under the law. It is dangerous to permit a judge to determine the quality of life a disabled person must attain in order to be permitted to live. Many with disabilities will never see their physical condition improve according to standards of the able-bodied. Nevertheless, for millions of disabled Americans, their ‘‘quality of life’’ in the eyes of others should not be a reason to deny them their basic right to life or any other liberty under our Constitution.
6. If ever a court sentences to death an innocent, disabled person who cannot speak for him or herself, the law should provide at least the same judicial review a convicted death row prisoner would be entitled to receive. Such laws do not exist currently in America. Terri was never provided with an independent legal counsel, nor a trial by jury. Yet by order of a court her life was ended.
There is no rational basis for this fundamental unfairness to continue. Terri’s struggle has exposed the problem. Now, our duty as a nation is to work toward the solution.
CHAPTER EIGHTEEN
EXAMINING THE
MEDICAL EXAMINER’S
REPORT
Um, I think I took her engagement ring and her—what do they call it?—diamond wedding band and made a ring for myself.
—MICHAEL SCHIAVO1
On June 15, 2005, Pinellas-Pasaco County’s chief independent medical examiner (IME), Dr. Jon Thogmartin, filed his findings from Terri Schiavo’s autopsy. Both sides in the hotly contested fight over the fate of Terri’s life sought answers to a host of questions: Why did she collapse back in 1990? Had she been abused, drugged, or strangled? Did she have a heart attack? Why did Terri have so many bone fractures? Was she terminal? Could she have improved? How extensive was her brain damage?
Was she in a persistent vegetative state?
Dr. Thogmartin took his seat before a vast array of cameras and microphones. The world would be hanging on his every word. Working from a set of prepared comments, he patiently spoke for about an hour, spelling out his thirty-nine pages of findings in both scientific and laymen’s terms. Unfortunately, as we soon discovered, many of the nuances in his remarks were lost on impatient analysts, pundits, and those of the public who prefer to view things in black and white. I know some were led to conclude the IME report cleared everything up.
Guess what?
I read the entire medical examiner’s report. In fact, I was briefed on it a number of hours before it was released. To be candid, I’m dismayed at how the media portrayed the findings. Keep in mind that Dr. Thogmartin never saw Terri alive. He didn’t have the benefit of witnessing what the Schindler family and I saw in her room. He was working on a severely emaciated corpse—in fact, he told me Terri represented the most severe case of dehydration he’d ever seen. One neurologist who read the report told me the autopsy showed unbelievably high levels of dehydration.
While I believe Dr. Thogmartin is a skilled professional, there are some issues raised by the autopsy that an IME cannot resolve. For instance, Dr. Thogmartin noted in his report that Terri’s ‘‘brain weight was approximately half of the expected weight.’’ When I pressed him about what role the dehydration might have played in the shrinkage of her brain tissue, he conceded he didn’t know exactly. I’ve been told by one neurologist that the brain is highly susceptible to serious medical complications from dehydration. Since 77 to 78 percent of the brain is normally composed of water, shrinkage from such severe dehydration should be expected.
Dr. Thogmartin noted that Terri had ‘‘damage and neuronal loss in her occipital lobes, which indicates cortical blindness.’’ In other words, at the time of her death Terri was blind. But when did the blindness set in? Bob and Mary had known Terri needed glasses due to her poor eyesight even before her injury. We knew she was visually impaired. Yet Terri could follow the pathway of a balloon as evidenced in videotapes recorded in 2002. A neurologist explained to me that some patients who are cortically blind can retain the ability to track objects—a phenomenon known as ‘‘blind sight.’’
This could explain why none of the five doctors who diagnosed Terri for the court in 2002 ever observed that Terri was blind. None of her rehab doctors during the first two years—back before the malpractice trial when Michael actually permitted rehab doctors to attend to her—reported that she was blind. In fact, in the early 1990s, prior to Michael’s winning the malpractice award, he is pictured pointing out ducks to Terri at a pond.
So when did the blindness develop?
The medical examiner said, ‘‘David, she may have had very finely tuned hearing and sense of smell. She might even have had some poor vision and it’s possible that the dehydration did finish it off. I don’t know. I’m looking at a corpse. I can only tell you what I’m looking at. I wasn’t in the room with you, and I wish I was, because then I’d have a whole different perspective on what I’m looking at.’’
All that the autopsy can state for certain is that Terri was cortically blind at the moment of her death.
Regarding the damage to Terri’s brain, Dr. Thogmartin said she was brain-injured, not brain-dead. Many fail to understand that absolutely critical distinction. He described the damage as ‘‘irreversible’’ and concluded ‘‘no amount of therapy or treatment would have regenerated the massive loss of neurons.’’ That is not, however, the same thing as saying Terri didn’t have any ability to think, hear, or communicate. Or that her capacity to function could not have been maximized by therapy, particularly if she was in a minimally conscious rather than a vegetative state. According to one neurologist I consulted, patients with strokes who also have irreversible brain damage and irreplaceable loss of neurons may still make great strides in functional improvement. Functional assessment is not possible on the basis of pathological specimens, as Dr. Thogmartin himself pointed out in the autopsy report.
Consider this.
The autopsy revealed most of the damage occurred in the area toward the back of Terri’s brain where the body’s motor skills are controlled. The front of the brain is where higher-level thinking is processed. One neurologist told me this disconnection of higher processing centers from motor expression might make it possible that Terri could not express her thoughts and feelings consistently. At the very least that dynamic should give us pause before racing to conclusions about Terri’s mental capacity.
Several other key aspects in the autopsy report were largely overlooked by the press: Dr. Thogmartin could not confirm the notion that Terri had an eating disorder (the basis of Michael’s multimillion dollar malpractice lawsuit against Terri’s doctors). He ruled out as well the suggestion that a heart attack was the cause for her initial injury in 1990.
In short, he had no medical evidence pointing to what deprived Terri’s brain of oxygen for several minutes. In that sense, the IME’s report created as many questions as it may have answered. The Schindlers still do not have an answer to what led to the collapse of their otherwise healthy twenty-six-year-old daughter.
Elsewhere, the report stated that Terri was unable to swallow sufficient amounts of food and water without aspiration. Remember, Terri had been denied therapy by Michael for twelve years; muscles will atrophy when they’re not used. We’ll never know whether or not she could have improved her ability to swallow with therapy. Many therapists would have liked the opportunity to try. The autopsy further confirmed that Terri wasn’t terminal and wasn’t dying. Terri had a very strong heart. Indeed, Dr. Thogmartin estimated that she could have lived for at least another ten years.
Now, was Terri severely brain-injured?
Absolutely.
While the IME focused on Terri’s disability and physical condition, let me remind you that we never argued Terri wasn’t disabled. Bob and Mary were under no delusions about Terri’s potential. They didn’t expect that she would one day jump around or sing in the Sunday choir. Throughout the ordeal, the family’s position was that the degree of a disability is NOT grounds to end life—especially in the absence of a written advance directive.
Whether you agree or disagree with the issues I’ve raised about the IME report, there’s a basic moral question before us:
Will Americans now accept as routine the practice of starvation and dehydration for the disabled, the blind, and any others whom a court might decide shouldn’t be allowed to live?
Let’s be careful here.
While the nation’s editorial pages may have led us to the tempting conclusion that Judge Greer actually did Terri a favor when he ordered her to die, there’s much more to the story. When the courts consign innocent lives to death by dehydration and starvation against the wishes of loved ones without objective and current medical investigations documenting the absence of consciousness, there will be far-reaching negative consequences for the weak, helpless, voiceless members of society.
TRIAL BY MEDIA
Terri’s court case had been decided in two arenas: inside the courthouse, and before the court of public opinion. Clearly, the public’s opinion was frequently shaped by a media that either got the story wrong or didn’t push hard enough to get the story right. In other words, the press allowed misinformation to be presented as fact. This pattern was especially evident in the wake of the autopsy findings.
Almost universally, the media’s reaction had been to vindicate Michael and vilify the Schindlers. For instance, on June 16, 2005, the New York Post headline proclaimed, ‘‘Terri had no hope—Autopsy supports her husband.’’ On the same day and in a scathing editorial, the editors of the New York Times blasted those who fought for Terri’s life and opined that the autopsy results ‘‘should embarrass all the opportunistic politicians and agenda-driven agitators who meddled in Terri Schiavo’s right-to-die case.’’2 Bob and Mary Schindler were ‘‘agenda-driven agitators’’?
The New York Times editors reported that ‘‘the medical investigation disproved paranoid theories that Michael Schiavo had injured his wife.’’ They claimed that the report ‘‘found no evidence of neglect, abuse, strangulation or other trauma.’’
No surprise there.
An autopsy is incapable of demonstrating whether Terri experienced ‘‘neglect’’ during her lifetime. But it is a matter of record, as I’ve said elsewhere, that Terri was isolated and warehoused at a hospice, cut off from human companionship. Unlike the open-door policy that other hospice p
atients enjoy, she wasn’t permitted out of her room. All therapy had been denied since the early 1990s. She couldn’t attend her own birthday party.
I’d say that qualifies as neglect.
As for some of the media’s haste to absolve Michael from any possible responsibility for Terri’s collapse—specifically the so-called ‘‘paranoid’’ theory of strangulation—again, the editors of this prominent newspaper overlooked what the medical examiner actually said in his report:
Autopsy examination of her neck structures 15 years after her initial collapse did not detect any signs of remote trauma, but, with such a delay, the exam was unlikely to show any residual neck findings. (emphasis added)
Put another way, Dr. Thogmartin could not conclusively resolve the issue of strangulation. Too much time had passed. If anything, the autopsy opened the door to more questions about what happened that night now that we know Terri didn’t have a heart attack nor did she suffer from bulimia, as was repeatedly asserted.
The inability of the autopsy to answer other key questions points to its limitations. Autopsies can only reveal structural features at the time of death. An autopsy could certainly not make a fine distinction between a minimally conscious and a persistent vegetative state—and Dr. Thogmartin did not claim to have done so. That determination could only have been made on a living human being.
TALKING HEADS
Television coverage of the IME report was equally marred by bias.
Case in point: With a touch of his signature smugness, Keith Olbermann proclaimed that Michael Schiavo was ‘‘vindicated today by the medical examiner in Pinellas County, Florida, and a neuropathologist brought in to consult on that autopsy. And if you do not believe those doctors, you have to be willing to believe that they would be willing to lose their licenses and jobs if they were proved to be incorrect.’’