Schiavo Debate Rekindled
By Hugo Kugiya
Staff Correspondent

October 26, 2003

St. Petersburg, Fla. -- The custody case of Terri Schiavo, the incapacitated woman who has lived on a feeding tube for 13 years, has turned out to be the 800-pound gorilla of right-to-die law in the country, a case whose circumstances are so extreme, it has undermined existing laws and procedures designed to resolve it.

Because of the Schiavo case, the Florida Legislature is considering revising the law regarding end-of-life decisions, said a spokeswoman for the Florida House. "There's a feeling the courts might have misinterpreted the original intent of the law," said Nicole de Lara.

The Schiavo case is unique because the family has been so starkly split for so long. Schiavo's husband, Michael Schiavo, and two members of his family testified in court that his wife would not want to be kept alive on a feeding tube. Terri Schiavo's parents, siblings and friends testified to the opposite.

"The idea for the law to work was that the family agreed," said Lois Shepherd, a law professor who researches bioethics and health law at Florida State University. " .. . The principle is that we're going to decide what you'd decide if you had the capacity, but you don't. It's a totally impossible thing to do. We have this admittedly imperfect statute."

Lawmakers have tentatively planned to discuss amendments to the law when the next session begins in March, de Lara said. It is not clear what changes would be proposed, if they are proposed at all. But if enacted, the changes could become a template for law in other states.

One question is whether oral testimony can substitute for a will, said Larry Crow, a Republican member of the House from 1994 to 2002, who served as the chairman of the judiciary committee.

Crow, a practicing attorney in Dunedin, sponsored a bill three years ago that would have given parents of a patient veto power in removing a feeding tube. The bill failed. Crow helped draft the bill specifically to help Terri's parents, Bob and Mary Schindler, with whom he has become good friends.

"There is not going to be anything that backpedals one's ability to leave advance written directives," Crow said of any future legislation.

Florida's Supreme Court ruled in September 1990 that every citizen had a right to refuse all medical treatment including food and water administered through a tube. The court also upheld a state law that gave a patient's loved ones the power to make medical decisions for them if the patient could not communicate and left no written instructions. A patient needed only to have told their relatives of their wishes.

Patricia Anderson, the attorney representing Terri Schiavo's parents, Bob and Mary Schindler, said she would like to see specific guidelines established for the types of testimony allowed in such cases. In the Schiavo case, the determination of her wishes relied on hearsay, recollections of casual conversation about life and death, some if it more than a decade old.

"The testimony was anecdotal and spontaneous," Anderson said. "Who among us hasn't made statements like that?"

Anderson would also like to see the standard of proof for a person's wishes be raised from clear and convincing to beyond a reasonable doubt, the same standard used for criminal cases.

That change is unlikely to be made, said Steven Gey, a professor constitutional law at Florida State.

"In Florida, the thumb on the scale is on the side of privacy rights," Gey said.

"Any statute is going to have some imprecision," said Mary Crossley, endowed professor of the Florida Bar Health Law Section. "You could pass a statute that, if there's any question, errs on the side of life, but I'm not sure that's what people want. We've been moving towards giving people greater freedoms and more autonomy."

The state could require all people of voting age to fill out an advance directive, or require court cases like Schiavo's to be decided by a jury instead of a single judge. But, experts said, such requirements would only make the process more cumbersome and do more harm than good.

Shepherd and other legal experts agree that the existing law, imperfect as it might be, is the best that can be done and should not be changed.

"The current statue is a pretty reasonable compromise," Crossley said.

Copyright (c) 2003, Newsday, Inc.


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