Asymmetrical Information

Really difficult.

But me, I'd rather have my spouse decide something like this.

Given that in the event of incapacity, my spouse can decide pretty much everything for me, why wouldn't this be part and parcel?

If I don't trust my spouse to make this sort of decision for me, then why on earth would I have married her?

I'd rather have my spouse decide also--which is why I have a health-care proxy (and you should too)!

In the absence of such a document, or some other very clearly expressed wish, I'm inclined to agree that the presumption should be in favor of maintaining life.

Jim

I have a "living will", but the necessity of it has always struck me as idiotic. If you don't trust your spouse with your life (and when to end it), it's time for divorce...

As for Ms. Schiavo here and here is a pretty good summaries of why those who would claim that she's anything but an empty shell are wrong.

The interesting point is how far could this go? For example, if they could keep a heart beating outside of a body, do they have a moral duty do so? I don't think most people would answer yes. What if they could keep the rest of the body functioning, when the head was lost? How much of the brain must be gone before we're considered dead?

Grisly thoughts, but interesting questions about what makes a human being.

Supposedly the husband in fact will suffer significantly in a divorce as opposed to Terri's death because then the marriage's main asset -- an insurance lump-sum settlement of more than $1.5 million for her initial head injury -- will likely be left with Terri.

The money was awarded to take care of Terri. If she dies, the money gets inherited by the husband. If they divorce and she lives, the money trickles to the hospital for the next few decades.

This is how he's been able to afford a lawyer all this time, by the way ... using her insurance settlement.

I sould suggest that the issue of having the spouse and the spouse alone make such life or death choices should be viewed in the light of what Lacy Anne Peterson would ahve to say on the matter.

Aaron - on the other hand, if the parents had ever won their motion to force a divorce, then they would've gotten all the settlement money. It's not as if there was no financial interest on their side. Besides, Michael Schiavo has walked away from a $1 million offer that was based on his transfer of guardianship to the parents. If he were financially motivated, wouldn't he have taken the money?

In any case, only $50,000 of the original $1 million malpractice settlement is left. Both sides acknowledge that there isn't much money anymore.

Rivka, your statement seems logiocal until a question gets asked; Of the two which would you consider more likely to be motivated by the fnacial end of the deal?

I'd guess the parents are probably kidding themselves about any chance of her getting better; it just doesn't sound like that's going to happen, and if there ever was a chance, the window has probably disappeared. What does disturb me is the fact that her friends testified that she had been talking about divorcing Michael shortly before her collapse, and her complaining that he was doing very controlling things like checking her odometer every day to make sure she wasn't going anywhere without telling him...it sounds like the marriage was on the rocks, to say the least. I'm not sure I'd want a possibly-soon-to-be-ex given responsibility for my life, but then that's not really a recognized legal state until one of them actually files for separation or divorce.

In a way the question has been answered. Brain death is considered death. By that standard she is clearly alive. Desperately ill, but alive.

That marriage should mean unlimited proxy power over a spouse is a definition of marriage not shared by everybody. The state has no business forcing it on everybody by default.
The default setting has to be the safe setting, speaking in analogy.

Other than the fact that Noonan's usual output closely resembles that of someone in a PVS, Ross Douthat, as usual, makes an incorrect and misleading statement.

To wit: "But because I think the state shouldn't be in the business of ordering the killing -"

It is not the state "ordering the killing". It is the state, upholding the right(s) of the legal spouse.

Also. "I wouldn't be surprised if Mr. Schiavo's eagerness to put his wife to sleep once and for all has at least something to do, on a subconscious level, with his obvious desire to make a fresh romantic and marital start. Which is why he shouldn't be able to make the choice for her."

In a thinly veiled accusation that really says more about the speaker than the person spoken about, Ross wants to make certain Mr. Schiavo would not do something Ross himself fears that he would do.

What is so funny about the entire situation is that Mrs. Schiavo might have a new life had these same misguided fools playing political football with a chuck of meat, allowed stem-cell research.

The rights of the legal spouse are a creation of law themselves. This argument doesn't fly. It is at least the state allowing somebody to kill.

Actually, Oliver, were we to exist in a fundamentalist state following the strictures of the Bible, the tube would have been yanked a long time ago.

and were that you would be consistent, arguing that our "state" sends young Americans to their death, not even counting the tens of thousand "brown people" we have killed in our quest to fill the tanks of our SUVs.

and Oliver, though the steak curls away from the flame, yet, no one raises an outcry that the slab of meat is responding in any way to the stimuli and, therefore, it holds the potential for life.

I fail to see the rationale in that unless you are implying that I advocate the establishment of a fundamentalist state. I do not.
Being an atheist the bible is of academic interest to me only. Civil rights however affect everyone.

Just to clarify, the law in Florida is not that if you are incapacitated, your spouse gets to direct whether you get medical treatment (and if so what kind) as he/she pleases.

The law in Florida, so far as I understand it, is this: If you are incapacitated, your spouse will in most cases become your guardian, and is supposed to direct that you get the care that you would ask for if you were capable of doing that for yourself. If there is a dispute about what care you would want, the guardian can go to court and get an order establishing what your wishes are. In that proceeding, other interested persons (here, Terri Schiavo's parents) can try to prove that your wishes would be something other than what your spouse says they would be.

That's what happened here. There was a hearing, witnesses gave testimony, the judge decided that Michael Schiavo was correct that his wife would have wanted a feeding tube removed if she had no chance of recovery. (You may disagree, of course, as to whether the judge was correct in his findings.)

One might ask why the judge reached that conclusion given that Terri Schiavo never expressed her wishes in writing. The answer is that Florida law makes it extremely clear that written proof of an incapacitated person's wishes is not required to establish that they might want to discontinue treatment and/or life support, and that there is no presumption in favor of continued treatment and/or life support. (Again, you may disagree that this is what Florida law should be, but there's no doubt that this is what Florida law is, right now.)

Correction, on further review:

The answer is that Florida law makes it extremely clear that written proof of an incapacitated person's wishes is not required to establish that they might want to discontinue treatment and/or life support, and that there is no presumption in favor of continued treatment and/or life support.

The first half of this is correct. The second half is not: absent evidence that an incapacitated person would have wanted treatment, life support, etc. to stop, Florida law will presume that the person would want it to continue.

One of the joys of the computer age and the coming of search engines to it is that it brings many resources, some useful and some not to the table. Do a search on the combined phrases "Terri Schiavo" and "cerebral cortex" and you will find some useful information including the full text of the court decisions that you can read for yourself. I would also suggest that some people do some reading on what the cerebral cortex is and what it does. Then realize that according to CAT tests in 1996 Terri Schiavo no longer has one.

OK, after trying to make my last post I have a question. How is mentioning a certain search engine named after a number "questionable content"?

In most jurisdictions a person may direct where his or her assets will go after death, but ONLY by executing a valid Will. Traditionally, courts have ignored testimony about who the deceased would have wanted to inherit had they had time to execute a Will. Absent a Will, the assets pass under the rules of intestacy. There are very good public policy reasons for strictly enforcing the requirements of having a valid Will -- the deceased cannot testify as to intent and it's all but impossible for the court to know, for sure, what was wanted. To prevent fraud, the state's require the Will be properly witnessed and in some cases notarized.

In recent years, virtually all states have adopted a living will statute whereby someone can make known his or her desires about medical care after all hope is gone. In all cases, the states adopted the same (or similar) requirements that apply to Wills to prevent fraud. After all, if we are going to require a certain formality in order to dispose of assets, shouldn't we require the same level of rigor to dispose of questions concerning life and death?

I don't know the particulars of Florida law. But if Alkali's correction is correct, Florida law seems to require proof of a person's desire before allowing the plug to be pulled. It appears that the court allowed hearsay testimony as proof of Ms. Schiavo's intent. Since such hearsay testimony would NOT be allowed as a substitute for a Will, it's more than a little odd that it's accepted as a substitute for a Living Will.

The moral of this story should be clear: if you want to control what happens, execute the required documents in a valid manner. Instead, by relying on the husband's assurances of what his wife would have wanted, the certainty the law should provide in this area has been diminished.

I don't know the particulars of Florida law. But if Alkali's correction is correct, Florida law seems to require proof of a person's desire before allowing the plug to be pulled. It appears that the court allowed hearsay testimony as proof of Ms. Schiavo's intent. Since such hearsay testimony would NOT be allowed as a substitute for a Will, it's more than a little odd that it's accepted as a substitute for a Living Will.

Hearsay is evidence of an out-of-court statement offered to prove the truth of a fact: "Mary told me that she saw the accident, and that the Volkswagen jumped the curb." Evidence of someone's out-of-court statements as to their desires or intentions ("Mary told me she wanted to go to the park") and evidence of out-of-court statments that don't communicate facts ("Mary said hello") are not hearsay.

The reason you can't offer oral testimony about how someone would want their property disposed of in lieu of a will is that not because that testimony is hearsay -- it isn't, for the reasons just stated. Rather, there is a "statute of wills" that specifically requires a certain form of written document to prove how someone would want their property disposed of after their death. Florida law specifically does not require written proof to show someone's desires with regard to health care treatment.

It is my general recollection that this law came about many years ago because of the Cruzan case in Missouri. Missouri required a very high standard of evidence to terminate treatment and the family (who in that case were all in agreement) couldn't meet that standard. Florida reacted by lowering the standard, I think because of pressure from seniors' groups. In any event it is not new.

hi meagan,
"But because I think the state shouldn't be in the business of ordering the killing -- and that's what withholding a feeding tube is; it's not the same as taking someone off life support"

following up sky-ho's comments above, i would like to know exactly why you think that there is a qualitative difference between taking a feeding tube out and taking someone off a heart-lung machine. time, comes to mind, but that isn't a qualitative difference, rather a quantitative one. so what is it exactly, that is different?

"...if the parents had ever won their motion to force a divorce, then they would've gotten all the settlement money. It's not as if there was no financial interest on their side."

Which was the judge's conclusion in his decision. However, it is odd reasoning.

If Terri dies, then the husband gets the money for himself. If the parents become her guardians, the money gets spent on Terri's care. The only conflict is the husband's.

"...i would like to know exactly why you think that there is a qualitative difference between taking a feeding tube out and taking someone off a heart-lung machine. time, comes to mind, but that isn't a qualitative difference, rather a quantitative one."

Death by starvation of weeks, isn't qualitatively different from your heart stopping immediately?

Hmmm....maybe I'm just being cynical. But anyone heard of the "Texas Futile Care Law" which was just used to take a baby (against its mothers wishes) off of life support? A bill that Bush signed. Now Bush signed this, one person only legislation (Mama, can I have my very own Law?), there seems to be a disconnect, how do Douthat and Noonan feel about that? Seems to me to be a contradiction. But what the heck do I know, I'm an independent. A Goldwater man, and a classical liberal.

Are all conservatives involved in expressing their opinion on this issue lazy? With relatively little work it is possible to find the full text of the court decisions, a picture of Ms. Schiavo's CT scan with a healthy scan for comparison and the full text of the opinion of the guardian ad litem that Jeb Bush appointed. For one thing the GAL's report mentions that the money Patrick and the other demonizers claim give Michael Schiavo a motive to want her dead was placed in a trust that he had no control over and is long gone. It was gone when he wrote his report and that was a couple of years ago. Here's the link to the GAL report:
http://www.miami.edu/ethics/schiavo/wolfson%27s%20report.pdf

Might I suggest some people try reading it instead of spouting off based on junk information from questionable sources?

"Might I suggest some people try reading it instead of spouting off based on junk information from questionable sources?"

My 'questonable source' is Judge Greer's decision. In which, he says money permeates the conflicts.

If Terri dies, then the husband gets the money for himself. If the parents become her guardians, the money gets spent on Terri's care. The only conflict is the husband's.

Not quite, if they are divorced and then Terri dies (even if the tube is put back in her lifespan is unlikely to be very long since being bed ridden leaves you open to all types of infections and other complications) any left over money would end up going to her heirs. Since she has no children that would be her parents and siblings.

On the flip side the husband has claimed to have turned down a $10M offer to step aside and we know a backer of stem cell research offered him $1M cash to step aside as well (plus her parents have offered him a deal where he could maintain his rights to her money even if he divorced her).

At this point I think Jane is correct when she guesses that her husband probably thinks he is doing the right thing although there is a danger his thinking may be influenced by his desire to have a 'final' break from his wife as well as the hostility towards her parents caused by years of feuding.

Another way in which it's different in this case to pull a feeding tube (that isn't in place at all times, but only at "mealtimes") than to pull "the plug," i.e. a respirator: Terri Schiavo does not drool. She swallows her own saliva - all day, every day. Nurses who have cared for her in the past have spoon-fed her and she has not choked; the court then ordered that she not be spoon-fed because she might choke. Therefore, depriving her of sustenance by pulling her feeding tube but not providing her sustenance in any other way is an active way of causing her death, versus the passive withdrawal of breathing support (whereby no amount of CPR, for instance, would cause that person to start reflexively breathing on her own). Unless you consider having someone feed you a form of medical life support (which I suppose some may, but I've spoon-fed my kids with only the most basic Red Cross course in first aid to my credit), a feeding tube in place for convenience rather than necessity is not of the same order as a respirator.

Dr. William Hammesfahr, Nobel-nominated in medicine in 1999 for his work in successful treatment of brain-damaged persons even years after their traumas, examined her for about 10 hours over 3 exams and determined that she is not unresponsive, which means she's not in a permanent vegetative state, which means Greer's "finding of fact" that she is in a PVS is - or at any rate ought to be, given Dr. Hammesfahr's standing in the field (as opposed, incidentally, to Dr. Cranford's, whose testimony led to Greer's "finding of fact" after a 45-minute examination), in question.

Jamie, are you claiming that she has a "right to be fed"?

If someone is willing to do it and pay for it, as indeed her parents are, yes.

I'm also here to acknowledge that I've been misrepresenting Cranford. In my prior comment, I didn't explicitly say he wasn't a neurologist, although that's where I was going based on something I read earlier and didn't check sufficiently. He is a neurologist. He is a neurologist who is outspoken on the subject of denying sustenance (not just removing feeding tubes but actually denying sustenance) to people he believes are in a PVS, which includes people who are patently not in a PVS (see http://www.nationalreview.com/comment/johansen200503160848.asp for examples). From a comment he made to a study that appeared in the British Medical Journal concerning misdiagnosis of PVS (http://bmj.bmjjournals.com/cgi/content/full/313/7048/5): "It is also important to distinguish late recovery from late discovery of consciousness. Patients who start regaining consciousness several months after the injury (late recoveries) should not be confused with patients who may have been conscious for some time before the discovery (late discoveries). The authors state that none of the misdiagnosed patients were vegetative at the time of admission, but it is not clear how such a conclusion can be reached with certainty, especially when 10 of the 17 misdiagnosed patients were admitted to the unit less then 12 months after injury." First, I've read that what constitutes a *persistent* vegetative state is that it continues for more than 3 months, and that the condition is considered "permanent" after 12 months (though I've recently read anecdotal reports of several people who recovered from their PVS after up to 7 1/2 years - I haven't really looked hard for these examples, so I don't know what the longest period is). What Cranford appears to me to be saying, taking his comments as a whole (not just this excerpt), is that if a person is indeed vegetative when s/he is admitted, and the condition is deemed to be permanent based on meeting an arbitrary time criterion, it's permissible to pull the feeding tube even if there's a possibility of their improvement and/or recovery later. More from his comment: " it is interesting to note that all 17 patients who were found to be conscious were severely disabled; all were severely paralysed and anarthric, most were either blind or severely visually impaired, some were substantially cognitively impaired, and all were presumably dependent on feeding tubes. Reasonable people may differ in their views of the quality of life of these conscious individuals, but I would speculate that most people would find this condition far more horrifying than the vegetative state itself, and some might think it an even stronger reason for stopping treatment than complete unconsciousness." The authors of the study differ from him, pointing out with *absolute* moral authority that one has quality of life because one believes that one has it, not because someone outside oneself determines it (and I'd suggest that "speculating" as to what "most people" would feel about being disabled is mighty close to the line for a doctor).

On the flip side the husband has claimed to have turned down a $10M offer to step aside and we know a backer of stem cell research offered him $1M cash to step aside as well (plus her parents have offered him a deal where he could maintain his rights to her money even if he divorced her).

Accepting the money would certainly be an "appearance of impropriety" issue, which perhaps he wishes to avoid for some reason. Qui bono if Shiavo dies and her corpse is cremated (or just rots away in a grave)? Well, if there was anything yet undiscovered as to how her current condition was achieved, that would be a good way to ensure that it never surfaces, and even ten million might not be enough money to completely start life over in a secluded country.

Or, if Terri Shiavo really did suffer brain damage of purely natural causes, perhaps Michael Schiavo has a guilty conscience on account of moral issues related to sharing the past ten years and fatherhood experiences with another woman while his wife yet lived, and Terri's death allows him to break away from those qualms. Which is a reprehensible reason for allowing Terri Shiavo to die from dehydration-starvation, since her "right to die" wishes are not written in ink (pity).

One way or another, no good comes of this -- either Shiavo dies in a way that most people would consider cruel if deliberately applied to any other mammalian species, or the federal government asserts further dominance over state's rights.

why not choose life? Who's hurt by it?

As I said on the other blog, I'm genuinely shocked that Peggy Noonan can even pretend to be puzzled by this. Suppose Terri Schiavo's preferences are as her husband says-- a not-entirely-implausible claim. Then the harm is quite dramatic. Against her will, without her consent, someone has cut a hole in her and forced food into her stomach. This is a clear violation of her right to refuse treatment and her broader right to make decisions about her life.

Sure, I'm worried about the finding of fact. But we should be honest: this isnot a case where there's no down side to keeping the feeding tube in. Either course of action risks a very serious moral wrong.

Jaime,

Dr. Hammasfahr's views are suspect on this matter. For staters don't be too impressed by this "Nobel Nominated" line. It's really not that impressive. George W. Bush has been nominated for a Nobel peace prize, for example. Being nominated is really not that big of a deal. Winning is. Himmlefar's nomination came from his congressman, Michasel Billirakis, hardly an expert on the line of work that the Dr. is in. His testimony has already been received by the trial court and found not to be credible. I don't his opinion is grounds for re-opening this case.

A note on "Dr." Hammasfahr.

This guy is a complete QUACK, and has long been known as one by real neurologists and other medical professionals. He has in the past made up incredible claims, purporting to be able to "cure" all sorts of devastating neurologic diseases, using odd, dubious techniques. He has actually been disciplined by a neurological governing body for this quackery.

His fantastic, shameless claim that he is a Nobel prize "nominee" is also absolutely repugnant: it holds exactly the same weight you'd accord to someone who's mum wrote a little note to the Nobel Committee, saying she thought her bright son was just too clever for words and really, really should get the prize.

Nominee my foot.

This is a tough one. I looked up a few cases and Florda law will not allow the harvesting of organs while the Brainstem is functioning. Terri Schiavo's brainstem IS functioning. She has no higher function but meets the legal definition of being alive.
1. Terri has no higher functions and will never regain them. Her Cerebral Cortex has liquified and I have found no case where someone recovered from that level of damage. She is well beyond any cerebral palsey or profound retardation state.
2. She cannot be fed by normal means
3. She does not meet the Florida definition of Brain Death. she has a functioning Brainstem.
4. Her husband or legal guardian states that she would not want to be kept alive in this state.

Now I am as liberal as they come but calling this one is tough. I would not call her alive but that is my personal view. we must have regard for the law here.

If you want to have your organic remains lie around for a couple of decades with all the life value of a 'pet rock' so be it.

I for one believe that with this particular case there is more than meets the eye. Her parents and brother wanted part of the cash settlement and when they didn't get any of it they went to war.

If I was in this state I would hope my wife would tell you, the media and the politicians to take a hike and let me go.

i never hear anyone talk who ras been in a coma.i have for 2 mos.it was like 10 years of hell,you dream terrible deams over and over.you can siill hear in a way that your brain uses for dreams.i have a health care directive you should too.the drs satd plan my funeral.15 years in a coma ?i hope she is brain dead or it is 15 yrs of hell

Um . . . mo, so you'd rather not be alive now? Or what exactly are you saying?

Terri Schiavo is in PVS, not a coma, and a large part of the argument in favor of dehydrating her is that she can't possibly feel anything because her cerebral cortex isn't there. She isn't brain dead," because part of her brain is obviously operating, but she doesn't seem to be conscious.

But I'm amazed that anyone who spent two months in a coma and then came out of it well enough to write blog comments would write as you do. If the woman is really brain-dead, she's beyond suffering anything; but if she isn't, she's about where you were. Would you rather be dead? Now?

Please explain the remark about Schiavo's partents accepting the burden of paying for her care. This would imply an inexhaustible ton of money--isn't the state paying now?

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