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Welcome. The following is a compilation of Abstract Appeal's posts from 2003 regarding the Terri Schiavo saga.

The left column contains links to other Abstract Appeal pages, including the blog's main page and Schiavo post compilation pages for 2004 and 2005.

For those looking for "highlights" of a sort, I've also created this page, which contains links to some of my more popular Schiavo posts.



Note that the Abstract Appeal web log began in July 2003.


Saturday, August 23, 2003

 
Schiavo case. The Supreme Court of Florida has dismissed an appeal by Terri Schiavo's parents. This story today from the St. Pete Times explains that Schiavo has reportedly been in a "persistent vegetative state" for 13 years and that her parents have been fighting to prevent her husband from removing her feeding tube.


Wednesday, August 27, 2003

 
Terri Schiavo News. Yesterday, Governor Bush sent a letter to the judge presiding over the Schiavo case, Judge Greer, asking the court to delay setting a date to remove Terri Schiavo's feeding tube, appoint a new guardian for her, and consider any new evidence of her wishes. In response, Judge Greer has commented that he believes he's operating under a mandate from the Second District -- specifically, this decision -- and that he's not likely to delay the tube's removal. You can read about the letter and Judge Greer's response in today's St. Pete Times, the Orlando Sentinel, the Miami Herald, the Sun-Sentinel, and the Tallahassee Democrat.




Wednesday, September 03, 2003

 
Schiavo News. Today's St. Pete Times has this story on how Terri Schiavo's parents have now turned to a federal court for assistance in their battle against Terri's husband, and how Judge Lazzara yesterday questioned whether federal courts have any jurisdiction in the matter. The story quotes Judge Lazzara as stating that the complaint in the parents' new federal lawsuit is "a 'quintessential shotgun pleading' designed to delay proceedings." The court apparently gave the parents leave to amend their complaint.




Wednesday, September 10, 2003

 
Schiavo Update. This story from the Tampa Tribune has the latest news on the Terri Shiavo situation -- which apparently includes a pending motion for the trial judge to recuse himself, more harsh words exchanged by the attorneys in the case about each other, and what appears to be a motion filed by the husband with the Second District asking the court to enforce its mandate that his wife's feeding tube be removed.


Thursday, September 11, 2003

 
Schiavo Case. The latest update, available here from the Tampa Tribune, is that Terri Shiavo's parents' motion asking Judge Greer to recuse himself has been denied. The motion alleged that the judge was biased in favor of Terri's husband.


Tuesday, September 16, 2003

 
Schiavo News. No substantive changes in the Terri Schiavo saga, but this story from today's St. Pete Times provides an update on the situation and some indications on when various rulings may be made.


Thursday, September 18, 2003

 
Schiavo News. The trial court in the Terri Schiavo case has now set a new date to remove Terri's feeding tube: October 15. You can read about that decision, and Terri's parents' resolve to keep trying to keep her alive, in the St. Pete Times, the Orlando Sentinel, and the Tampa Tribune.


Tuesday, September 23, 2003

 
Schiavo News. The latest update in this saga is that yesterday Terri Schiavo's parents filed an amended complaint in federal court. In the complaint, the parents allege a conspiracy between Terri Schiavo's husband and Judge Greer to deprive Terri of her constitutional rights. As you may recall, Judge Greer has currenty scheduled Terri's feeding tube to be removed on October 15. You can read about the latest developments in this story in today's Tampa Tribune.

 
Schiavo News. October 10. According to the AP, that's the date that Judge Lazzara is going to hold a hearing on Terri Schiavo's parents' efforts to stop Terri's feeding tube from being removed. As noted in this post below, Terri's parents are claiming that Terri's husband and Judge Greer (the state court judge) have conspired to deprive Terri of her constitutional rights. You can read the latest here.


Thursday, September 25, 2003

 
Schiavo News. Well, not news -- a column. St. Pete Times columnist Mary Jo Melone's thoughts today on the Terri Shiavo saga are worth reading. Check out her column here.


Monday, September 29, 2003

 
Schiavo News. More today on the Terri Schiavo saga from the St. Pete Times, which has this story. It highlights how some people have misdirected their feelings over the case.



 
More Schiavo. Mary Jo Melone's weekend column covered the case as well.


Saturday, October 04, 2003

 
Schiavo News. Florida's Attorney General, Charlie Crist, has decided that his office will not take part in the federal litigation between Terri Schiavo's parents and Terri Schiavo's husband, according to this story from the Tampa Tribune. However, Crist did take the position that Florida's Health Care Advance Directives laws are constitutional. In the recently-filed federal case, Terri's parents are claiming that the Florida laws that permit a court to order Terri's feeding tube removed violate her constitutional rights.


Sunday, October 05, 2003

 
Schiavo News. Steve Otto, columnist for the Tampa Tribune has these thoughts on the Terri Schiavo saga.


Tuesday, October 07, 2003

 
Schiavo News. The latest is here, where the AP reports on Terri's husband's motion to dismiss his in-laws' federal case and on the hearing scheduled for October 10.


Wednesday, October 08, 2003

 
Schiavo News. Governor Bush's office has filed a brief in the federal case between Terri Schiavo's parents and her husband, according to this story from the Tampa Tribune. The Governor's position appears to be that Terri should be given therapy to determine if she can eat or drink on her own and that her decision not to remain alive through artificial sustenance is not the same as a wish not to be fed at all.


Saturday, October 11, 2003

 
Schiavo News. The big news on the Terri Schiavo saga is that Judge Lazzara has dismissed Terri's parents' federal suit due to a lack of federal trial court jurisdiction over the matter. As the judge ruled, Terri's parents have been attempting to use the federal district court to make an end-run around the state court decisions in the case, rather than appealing those decisions to the United States Supreme Court. You can read the latest updates in today's St. Pete Times and Tampa Tribune.


Tuesday, October 14, 2003

 
Schiavo News. A round-the-clock vigil has begun at the hospice where Terri stays, according to this story today from the Tampa Tribune. The story also notes that Terri's parents have filed some sort of new request for relief from the Second District. It's not clear from the story exactly what was filed, but given the history of the case it seems unlikely that the court has jurisdiction to reconsider the matter, which has already been decided. You can read the appellate court's last published decision on the Schiavo case here.


Wednesday, October 15, 2003

 
Schiavo News. The big legal news of the moment in Florida concerns the Terri Schiavo case. The feeding tube for this brain damaged woman, who has been in a persistent vegetative state for 13 1/2 years, is scheduled to be removed at 2 p.m. today. Yesterday the Second District rejected Terri's parents' latest efforts to have the removal stopped, and reports suggest that the parents may feel they are now out of judicial options. That certainly appears to be the case. Also, Terri's parents yesterday released a segment of a videotape they made of Terri years ago in violation of a court order; as a result, and apparently out of concern the parents will attempt to videotape her after the tube is removed, Terri's husband (who is her legal guardian) has limited their access to Terri to times when he or his representative is present.

You can read the latest stories on this saga in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.


 
Schiavo Questions. In the last few weeks, I've had many conversations with people who were disturbed by the Terri Schiavo situation but who misunderstood -- or had little to no idea about -- the facts or history of the case. Inevitably, these folks express disappointment to one degree or another with the legal process and even the trial judge in particular. I've also noticed that a good number of people have stumbled onto this web log while looking for information on the Terri Schiavo case.

I'd like to try to clarify things and offer some resources to those looking for more (or just better) information on this saga. I have no stake in the case -- I'm just interested in helping people help themselves understand the situation and explaining why I believe the legal system is sound.

I'll be spending all day in that Tampa trial where I've been providing appellate support for the last two weeks, but in the off-moments and tonight I'm going to try to put together a Q&A page that offers short, understandable explanations of what's going on and what the law is. Hopefully it will be of use to some folks. Feel free to email me today with any questions you think ought to be covered.



Thursday, October 16, 2003

 
Schiavo News. At 2 p.m. yesterday, health care providers at the Pinellas Park Hospice where Terri is staying disconnected her feeding tube. Terri's parents, backed by a strong number of supporters, are still hoping something or someone will intervene to change the fate that Terri now imminently faces. Reports are that Governor Bush has asked his legal staff to consider every possible legal avenue to aid the Schindlers. You can read about it all in today's St. Pete Times, Tampa Tribune, Tallahassee Democrat, and Orlando Sentinel.



 
Announcing The Terri Schiavo Information Page. As mentioned in a post yesterday, I have begun an information page intended to provide information about the Terri Schiavo case, with an emphasis on Florida law and the legal procedures that have gotten things where they are today. The format at this point is Question & Answer. I will be adding to the page over the next day or two -- I've only had a brief amount of time to devote to this recently because of my workload, including an ongoing trial for which I'm providing appellate support all week.

Hopefully the Information Page will help debunk some of the severe misstatements I've heard about the case, many of which have been aired in very public formats.

You'll find The Terri Schiavo Information Page HERE.



Monday, October 20, 2003

 
Schiavo News. I made some significant updates to the Terri Schiavo Information Page over the weekend. Hopefully the page is now fairly informative, at least with respect to the legal procedures that have been followed thus far. You can access the info page here.

Also, the morning television news in the Tampa Bay area is reporting that a watchdog group has filed a complaint regarding Terri Schiavo in federal court in Tampa. The group apparently claims that depriving Terri of a feeding tube constitutes abuse and that her tube's removal should be enjoined. The news also reports that a hearing -- perhaps a preliminary injunction hearing -- is scheduled for noon today.


 
Schiavo News. The Terri Schindler-Schiavo Foundation's site, Terri's Fight!, has posted a notice saying that Florida's Speaker of the House, Johnnie Byrd, will introduce "Terri's Bill" today during the Legislature's special session regarding the Scripps Research Institute facility planned for Florida. Apparently, the bill would put an immediate moratorium on dehydration and starvation deaths in this state. Note that, where, as here, the Governor has called a special session, then under Article I, § 3(c)(1) of the Florida Constitution, the Legislature cannot take up a matter other than the subject of the special session except by a 2/3 vote of each house.

This is a fascinating development.


 
Schiavo News… on three fronts. First, the "watchdog group" mentioned in a post from this morning is the Advocacy Center for Persons with Disabilities. That group has brought a claim in federal court alleging that removal of Terri's feeding tube constitutes abuse. I'm not sure how the group asserts that the federal court has jurisdiction, but the group is pushing forward and has requested a 10-day injunction on the tube's removal to permit an investigation. Judge Merryday has been assigned the case and heard argument on that request. He is expected to issue a ruling today.

Second, the new law being advanced in Tallahassee by Speaker Johnnie Byrd would apparently prohibit removal of hydration and nutrition from persons who lack a written directive on life-prolonging procedures where the family cannot agree on a course.

Third, Governor Bush has apparently been advised that all legal remedies that he might pursue have been exhausted.

All this from this afternoon update from the AP.



Tuesday, October 21, 2003

 
Schiavo News. I called it a "fascinating development" yesterday for a reason. It looks like Terri's feeding tube will be reinserted soon -- probably today -- based on events going on in the Capitol. Yesterday evening, the Florida House of Representatives passed a bill that reportedly will allow the Governor to intervene in cases, like Terri's, where no written directive exists regarding the cessation of hydration and nutrition and the family cannot agree on how to proceed. At the moment, the bill's text is not available online, but I'll be watching for it. For now, the Legislature has what's probably the bill's title online, and it states that the bill:

authorizes the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient under certain circumstances; provides for expiration of the stay; authorizes the Governor to lift the stay under certain circumstances; provides that a person is not civilly liable and is not subject to regulatory or disciplinary sanctions for taking action in compliance with any such stay.
According to the Florida Senate's web site, a Senate committee will be taking up the bill at 8 a.m. If the Senate passes the bill today, all indications are the Governor will immediately sign it and invoke the stay it permits.

Bottom line: Assuming a favorable Senate vote, Terri's feeding tube will likely be reinserted later today based on a stay issued by the Governor. That will not, however, be the end of this saga. The stay is apparently not indefinite, so even under the new law's terms (which I've not yet seen), there are issues ahead. Also, based on comments from Michael's attorney in today's news reports, Michael is likely to challenge the constitutionality of the new law on grounds it violates Terri's right to privacy. (Yes, I said that right.) There may be other constitutional challenges as well. So, in all likelihood, the court battle is about to resume.

You can read about the latest developments everywhere, such as today's St. Pete Times, Tampa Tribune, and Orlando Sentinel.


 
Schiavo News. The AP reports in this story that a Senate committee has approved the bill passed yesterday by the House. But a quick look at the Senate's website (here) indicates that the committee passed the bill as amended, which should mean that even if the full Senate approves the amended bill tonight, then the House will have to pass the amended version as well before the bill can be sent to the Governor for approval.

For more details, scroll down just a bit to this Schiavo News post from earlier this morning.

Also, don't forget that Abstract Appeal's Terri Schiavo Information Page has a good deal of information about the legal proceedings thus far.


 
Schiavo News. Whoa! I commented this morning that news reports and the bill title made it seem that the stay authorized by the bill under consideration would not be indefinite. Not so. Well, maybe. The House of Representatives web site now has up the text of the bill the House passed last night -- you can read it yourself here. You'll see that the bill would create only a 15-day window during which the Governor could issue a stay in cases such as Terri's; once the 15-day window expires, the Governor could no longer issue such stays, but any stay already issued would remain in effect except upon a finding that a change in the person's condition warrants revocation of the stay.

Bear in mind that amendments to the bill have been proposed and possibly accepted by one or both chambers, and the text of those proposals is not yet on the Internet. So it's not clear how the bill may now read, and of course everything is subject to change.

This bill is fascinating, though. It's probably fair to say that some ground-breaking constitutional battles and procedural issues lie just past the horizon.


 
More Schiavo News. Judge Merryday has denied the request for injunctive relief filed by the Advocacy Center for Persons with Disabilities. The group sought to enjoin the removal of Terri's feeding tube on grounds that the removal constituted abuse and neglect. The federal court found the group's allegations legally insufficient and further found that a federal district court has no jurisdiction over this matter, which has already been litigated in Florida's state courts. You can read Judge Merryday's order here.

A footnote in Judge Merryday's order is worth a note here. He stated in footnote 2:

At the October 20, 2003, hearing, The Center argued that withholding nutrition and hydration from the ward may constitute "abuse and neglect." However, The Center admitted that had the ward left explicit written directions under Chapter 765 to terminate her nutrition and hydration, The Center would not have filed this action. In other words, this action represents The Center's disagreement with the fact finding in Florida's courts that the ward actually consented to the present course.
That pretty much sums up the controversy in this case.


 
Schiavo News. Don't blink, or you'll miss things. This recent report from the AP confirms that the Senate has passed an amended version of the bill, which is now on its way back to the House. The House will likely pass the amended bill, sending it on to Governor Bush for his signature tonight. But wait. The AP story also indicates that Michael Schiavo has filed a motion with the trial court overseeing this case -- most likely a request that any stay imposed by the Governor be ineffective. Finally, the story indicates that the trial judge will hold a hearing today on the matter.

 
Schiavo News. The House has now passed the amended bill, which appears to be available here. From my quick read, the only apparent difference from the earlier version is that the bill now provides that the chief judge of the circuit court is to appoint a guardian ad litem to advise the Governor once a stay is issued.

In the Sixth Circuit, where Terri's case is pending, the chief judge is Judge David A. Demers.


 
Schiavo News. Local TV in the Tampa Bay area reports that Terri has been taken to a hospital, where she will receive fluids intravenously and, later, a feeding tube once again. That ends two days of heavy political involvement in the case. The next round, if that's an appropriate term in such a sensitive situation, will take place in the courts.

Thinking abstractly here -- in keeping with this site's name -- I can imagine at least two potential series of issues that may be litigated in the courts: whether the stay that Governor Bush has ordered and the underlying new law are constitutional and, if so, whether and how the Governor's authority to revoke the stay (something he can do based on a "change in circumstances") should be exercised and reviewed. Stay tuned.



Wednesday, October 22, 2003

 
Schiavo News. Let's try to wrap up what happened yesterday. The House and Senate passed a law that gives the Governor the ability to stay the removal of a person's feeding tube in cases where the court system has found that person to be in a persistent vegetative state, the person has no written advance directive, and the person has had nutrition and hydration withheld. The power to issue such stays ends 15 days from yesterday, but the effect of a stay is perpetual unless the Governor finds revoking the stay to be warranted by a change in circumstances. Once a stay is issued, the chief judge of the local circuit court is to appoint a guardian ad litem to advise the Governor.

Armed with this new law, which you can read here, the Governor last night ordered Terri's feeding tube reinserted. She was taken to a Clearwater hospital where that process was begun.

Meanwhile, Michael Schiavo attempted to have the local circuit court enjoin the new law's effect -- which would leave the feeding tube removed -- based on arguments that the new law is unconstitutional. Not surprisingly, the circuit court rejected that effort and said that the law would be effective until the court can have a full opportunity to review the constitutional arguments.

So where are we headed? Assuming Michael can and wishes to continue his battle with the Schindlers, the constitutionality of the new law will be litigated, perhaps all the way to the Florida Supreme Court. I note that the constitutional dimensions of these arguments will give the Florida Supreme Court an opportunity to hear the case, whereas that court had no legal authority to review the earlier appellate decisions in the case. More on this later.

What are the constitutional challenges? At this point, it seems there will be two: First, that the law violates Terri's constitutional right to privacy, since the courts have determined that she would choose not to continue with life-prolonging measures under these circumstances. Second, that the law violates the constitutional principle of separation of powers (which in essence leaves each of the three branches of government to its own sphere of power) by appointing the Governor to overrule the courts on a fact issue with fundamental right implications. I am not going to predict whether these arguments will succeed or fail, but as an appellate lawyer I will say that they will make for very interesting legal discussions.

What's the bottom line? Terri's feeding tube will likely be left in place until the courts finish sorting out issues regarding the new law. That could easily be a year or two.

What's the reaction to what just happened? The families' reactions are the obvious ones. Less foreseeable have been the comments of newspaper editorial staffs, law professors, and even Florida's legislators themselves. Some of these folks are making cries of political opportunism -- that the Legislature acted as it did to court the Republican party's conservative base and to further the upcoming U.S. Senate campaign of Florida's Speaker of the House, Johnnie Byrd, who spearheaded the legislative move.

You can read the local papers' roundups of the situation at these links to the St. Pete Times, the Tampa Tribune, the Palm Beach Post, and the Orlando Sentinel, with the Sentinel having the heaviest coverage of legislators' views. You can read heavy criticism of the legislative action from the editorial staffs of the St. Pete Times and the Orlando Sentinel (registration required), and from St. Pete Times columnist Howard Troxler. You can also read the somewhat guarded support for the move given by the editorial staff at the Tampa Tribune.




 
Schiavo News. The AP has this update, which not only notes that Michael is not allowing Terri's family to see her in the hospital where she is being treated but includes some interesting quotes from well known constitutional scholar Lawrence Tribe.

 
More Schiavo News. Keep in mind, I'm not taking sides -- just working at shedding some light on the law and the legal process here -- but I have to point out the oddity of this story tonight from the Associated Press. The story, titled "Doctors Say Suffering Unlikely for Brain-Damaged Woman," is about how physicians reject Michael Schiavo's attorney's claim that reintroducing Terri's feeding tube would bring her more suffering before she dies. The basis for their refutation? "Since the woman, Terri Schiavo, is in a persistent vegetative state, she will not feel discomfort. . . . 'She is not aware of her environment or what is happening.'" Guess how many such stories were run with respect to claims about Terri's suffering when the tube was removed?

 
Schiavo News. There has been a discernible change in the reporting concerning the new law passed this week to allow the Governor to intervene in the Terri Schiavo case. I noticed yesterday in the local television and radio coverage that the media have begun qualifying their comments on the law by discussing its potential unconstitutionality as a bona fide possibility, rather than simply a claim by Michael Schiavo's attorney. This morning's papers likewise include numerous quotes from "legal experts" who declare that the law is simply unconstitutional.

Check out the local coverage in today's St. Pete Times, which has articles here and here; Tampa Tribune, which has articles here and here; and Orlando Sentinel.

Personally, I find the constitutional issues (discussed briefly in this post yesterday) to be fascinating, not only as legal issues but as means to educate the general public about some very important constitutional principles.

To provide a brief update on events, Michael has announced that he intends to sue any doctor providing assistance to his wife, as explained in the second Tampa Trib story linked above. If you recall the new law's language, though, it provides immunity to doctors who act pursuant to a stay issued by the Governor. Presumably, Michael's position is based on his view the law is unconstitutional for the reasons mentioned earlier, but there may be an additional constitutional arrow in his quiver: he may assert that the immunity portion of the new law also violates Terri's constitutional right of access to courts, since in the absence of the new law Terri would have a common law cause of action for battery against doctors treating her against her will (recall that the courts have determined that Terri would not wish to live under these circumstances), and Florida's courts are traditionally reluctant to permit the Legislature to eliminate claims that could be brought under the common law. This explains why, as the Trib story mentions, Terri's treating physician resigned from her care Tuesday evening -- likely in an effort to avoid a battery suit.

Finally, I'll note that the first St. Pete Times article linked above explains something I had not appreciated about Tuesday's events: Late Tuesday, Michael Schiavo filed an action separate from the guardianship proceedings to declare the new law unconstitutional. That case has been assigned to Judge Baird. It's not clear at this point whether the two proceedings will continue as separate cases, but it seems unlikely.



Thursday, October 23, 2003

 
Schiavo News. Michael Schiavo has considered, and rejected, giving up his efforts to allow his wife to die, according to this story tonight from the AP. He's going to pursue a declaration that the law enacted earlier this week to permit Governor Bush to stay the withdrawal of Terri's feeding tube is unconstitutional.


Friday, October 24, 2003

 
Schiavo News. Today's St. Pete Times has this update on the the coming constitutional challenge to the new law that allowed Governor Bush to stay the removal of Terri's feeding tube. The story includes some financial information that has not recently been published, such as that only $50,000 remains of Terri's trust fund and that rumors that Michael Schiavo will collect an insurance award when Terri dies are false -- there is no policy.

The Sun-Sentinel has this story about how the ACLU intends to aid Michael Schiavo in his constitutional challenge to the new law and how other groups, such as the AARP, are considering doing so as well.

The Palm Beach Post has this story about the resignation of Terri's treating physician.

The Tampa Tribune has this story on how publicity from the Terri Schiavo case has prompted a surge of interest in setting up living wills. (I don't give out personal legal advice on Abstract Appeal, but I will say that, as a general matter of prudence, we all should have clearly expressed living wills. I'll have more on this subject in a lengthy piece to be posted over the weekend.)

Finally, for now, the Tallahassee Democrat has this story about how calls to "save Terri" have been pouring into Tallahassee, including the office of Craig Waters, the Florida Supreme Court's spokesperson.



Saturday, October 25, 2003

 
Schiavo News. The St. Pete Times has this update on the Schiavo case. The story discusses both the ACLU's entry into the case to challenge the constitutionality of the law passed earlier this week and renewed claims from the Schindler family and their doctors that Terri is responsive and alert.

In the interest of full disclosure regarding the procedural history of this case, I will point out that the doctors quoted in the story are the same doctors who testified for the Schindlers before Judge Greer at the last trial in this case. Their testimony was contrary to that of the doctors hired by Michael Schiavo and the independent doctor hired by the trial court. You can read Judge Greer's order rejecting the Schindlers' doctors' testimony here, and you can read the appellate court decision affirming Judge Greer's order here.

Also, the Sun-Sentinel has this story about how Governor Bush has gained support from the "religious right" as a result of his intervention in the Schiavo case.



Sunday, October 26, 2003

 
Schiavo News. The AP has this report on Judge Greer, who for years has presided over the Schiavo case at the trial level.



 
Schiavo News. I'm a lawyer, not a doctor, so while I can help debunk misperceptions about how the judicial system has handled the Terri Schiavo case, I'm as clueless as the next person about the medical aspects of the case. That's why I find this article from today's St. Pete Times so interesting -- it explains that, contrary to popular perception, medical science uniformly believes that removing a feeding tube from a patient does not cause a painful death.

 
Schiavo News: Michael Breaks His Silence. Terri Schiavo's husband, who has been silent in the media through much of this saga, will appear on Larry King Live at 9 p.m. Monday night.


Monday, October 27, 2003

 
Schiavo News. First up, some stories from today's papers. This story from the Orlando Sentinel attempts to explain the differences between the popular perception of Terri's consciousness and the opinions of medical experts and the courts that Terri's movements are reflexive only.

Also, the Sun-Sentinel has this story, entitled, "Schiavo Case Rekindles Debate On Reviving People With Severe Brain Damage." The story examines medical views of Terri's case from all sides.


 
More Schiavo News. The Tampa Tribune ran a column yesterday by Gary D. Fox, the attorney who represented Terri and Michael Schiavo in their 1992 medical malpractice suit. The column is interesting because it covers a point not discussed in the media lately: the reason Terri suffered the heart attack that led to her current condition.

I was unable to find a link to the column online, but here's an excerpt:

By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen long enough to produce catastrophic brain damage.

The trial of the medical malpractice case established that the health care providers who treated Terri should have figured out that she had an eating disorder and referred her to the appropriate specialists for treatment.
The column also explains that a jury assessed the Schiavos' damages at over $6.8 million but found Terri to be at fault, too, leaving the Schiavos with about a $2 million award. The column does not mention but other reports indicate that the case later settled for half that amount.

Update: The St. Pete Times ran Fox's column as well, and you can access it online here. Many thanks to the reader who forwarded this link.


 
Still More Schiavo News. This is just a reminder that Michael Schiavo, who has been silent in the media throughout this saga, will appear on Larry King Live tonight at 9 p.m.

 
Slated! Greetings to all those who've found this blog through links on Mickey Kaus's kausfiles blog, over at Slate.

The Slate piece is extremely refreshing because it credits Abstract Appeal's Terri Schiavo Information Page with helping clear up what I view to be a popular misconception about this case: that Michael made the decision and the courts have simply allowed him to do it. As the Info Page explains, that's not what happened. Helping clear up misunderstandings about Florida's legal system and the events of this case is exactly why I've created that page.


 
Schiavo News. According to this update from the AP, Judge Baird -- the trial judge hearing the constitutional challenges to the new law that permitted Governor Bush to order Terri's feeding tube reinserted -- has clarified that legal memoranda may be filed through Wednesday challenging the new law. Opposing memoranda (from the Schindlers, the Governor, and, presumably, Florida's Attorney General) are due one week later.


Tuesday, October 28, 2003

 
Schiavo News. After Michael's appearance on Larry King Live and the Schindlers' attorney then appearing on Greta Van Susteren's show, there are plenty of new quotes and comments to absorb.

Read the local coverage about it all at these links to today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. For a glimpse of the national coverage, check out this story at cnn.com.


 
Schiavo News. President Bush commented at a press conference today that he believes his brother "made the right decision." The Associated Press reports on the comment here. You can also read a transcript of the entire press conference here.

I'm going to take issue with one aspect of the AP story, and it has nothing to do with the President or Florida's Governor. The story concludes with these words:

Terri Schiavo suffered severe brain damage in 1990 when her heart stopped. Some medical experts have testified she is in a persistent vegetative state with no hope of recovery; others disagree. Her parents have argued their daughter could improve with therapy.
Reporting like this has no doubt contributed to many people misunderstanding that the issue of whether Terri has any likelihood of regaining some cognitive functioning has been litigated -- Michael Schiavo, the Schindlers, and others, including experts for both sides and a court-appointed independent medical expert, have already fought this battle in the courts at a trial and on appeal. The trial judge heard all of the evidence from all sides and concluded that Terri is in a persistent vegetative state and that there is no treatment option that could significantly improve her quality of life. Yet this AP story describes the situation as if two groups simply disagree on an issue that no court has resolved, as if justice and a day in court were still a day away. That's just not true. Check the Terri Schiavo Information Page if you'd like more details.



Wednesday, October 29, 2003

 
Schiavo News: Another Law? Today's roundup of local coverage on the Terri Schiavo case can be found in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.

Perhaps the most significant item from these stories is that Florida Senator Bill Nelson has announced a proposed bill that would expand Medicare coverage to include a single doctor's visit to discuss end-of-life treatment issues. Don't expect any immediate constitutional challenges to that law. Meanwhile, though, back in St. Pete, briefs are due today from Michael Schiavo on arguments against the new Florida law's constitutionality.


 
Schiavo News. Today, in the case before Judge Baird, Michael Schiavo filed a legal memorandum challenging the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about the legal arguments contained in the memo in this update from the AP.


Thursday, October 30, 2003

 
Schiavo News. Yesterday, Michael Schiavo filed a legal memorandum in the trial court (Judge Baird's court) detailing his arguments against the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read more about it all in today's St. Pete Times and Orlando Sentinel. Memoranda in opposition to Michael's position -- presumably from the Schindlers, the Governor, and the Attorney General -- are due next Wednesday.

 
Schiavo News. You can read a copy of Michael's legal brief, described in the preceding post, here.


Friday, October 31, 2003

 
Schiavo News. The Schindlers have asked Judge Baird for permission to intervene in Michael Schiavo's case against the Governor, which would allow them to file a brief in opposition to the one Michael filed on Wednesday. The Schindlers have also been joined by the American Center for Law and Justice. Read about it all in this story from today's St. Pete Times.

Also, Miami Herald columnist Jim DeFede has this piece today on the ethics surrounding Terri's case.


 
More Schiavo News. So what exactly did Michael Schiavo argue in the brief he filed Wednesday to support his constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted? He made the following arguments, though the brief devoted the most attention to the first two:

-- the law violates Terri's right to privacy
-- the law violates the constitutional principle of separation of powers
-- the law violates Terri's right to equal protection
-- the law is an impermissible bill of attainder
-- the law is an invalid special law
-- the law is unconstitutionally vague

You can read Michael's brief here. I encourage everyone to read this brief and to read the opposition briefs that will be filed next week. I'll link to them after someone posts them on the Internet.

This is a great opportunity for people who rarely or never get an opportunity to see written legal arguments in an appellate brief-style format. Unfortunately, most people never see such things, which is why when I tell non-lawyers that I'm an appellate lawyer, they usually look at me and just say, "Oh. Okay."

Appellate lawyers basically write legal arguments in the form of briefs and present them to appellate courts at what's called an oral argument. The Schiavo case is not presently on appeal, but the parties and the judge are treating it as an appellate case even at the trial level -- in the sense that they're referring to the parties' legal memos as briefs and in the sense that Michael's attorneys wrote his "brief" in the format of a formal appellate brief. Why are they doing this? Probably because the issues at this point are purely legal ones -- there are likely not going to be factual issues that will require a trial. The trial judge will probably read the parties' briefs, hear argument from the attorneys, research the law on his own, and decide which side is correct on the various issues.

Since I'm encouraging folks to read legal briefs, I'll add this caveat: Remember that a brief is legal argument by only one side. Always read the briefs from all sides if you want to gain a full understanding of the arguments and the issues. Most importantly, to understand which side is actually correct, read the decision by the court that resolves the arguments and decides the issues.



Sunday, November 02, 2003

 
Shiavo News. In case you missed it, today's St. Pete Times has this story on how the new law known as Terri's Law came to be.


Monday, November 03, 2003

 
Schiavo News. Today's St. Pete Times has this profile of Judge Baird, the trial judge hearing Michael Schiavo's constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted.

Also, today's Sun-Sentinel has this story about how some folks in Tallahassee pay little attention to the constitutionality of laws they pass or enforce.



Tuesday, November 04, 2003

 
Schiavo News. Michael Schiavo is taking the position that the Schindlers do not meet the legal requirements necessary to intervene in his suit on the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about it here in today's St. Pete Times.

To help clarify this a bit, Michael's new lawsuit is against Governor Bush and Attorney General Charlie Crist. The Schindlers are not parties to this suit, but they have requested that they be permitted to intervene as parties so they can defend the law's constitutionality. Florida law is fairly specific about who can intervene in a lawsuit between other parties. Though I'm not going to predict how Judge Baird will rule, I will note that even if the Schindlers' motion to intervene is denied, Judge Baird would be free to permit the Schindlers to file legal arguments as amici curiae -- "friends of the court" -- so there is probably little chance that the Schindlers will not be heard in this case.



Wednesday, November 05, 2003

 
Schiavo News. Judge Baird has denied the Schindlers' motion to intervene in the lawsuit between Michael Schiavo and state officials, as reported in this story from today's St. Pete Times. Yesterday, I mentioned in this post that even if the Schindlers' motion was denied, they would likely be permitted to file legal arguments as amici curiae ("friends of the court"), and that's apparently what happened. So the Schindlers will have an opportunity to be heard; they will just not be parties to the suit.

The Times story also mentions that legal briefs defending the constitutionality of the new law are due tomorrow. Earlier reports indicated they were due today.

Finally, the Miami Herald has this story on presidential candidate Howard Dean's criticism of Florida's Legislature and Governor for entering the Schiavo case as they did.



Thursday, November 06, 2003

 
Schiavo News. The St. Pete Times today has this story on how attorneys for Governor Bush yesterday filed a motion with Judge Baird to dismiss the case testing the new law's constitutionality. From the story, it sounds as if the motion is based on procedural concerns -- proper service of notice of the lawsuit and whether the case should be pending in Pinellas County (where Terri is) or Leon County (where the capitol is).

Times columnist Mary Jo Melone has this column about the guardian ad litem who advised Judge Greer on Terri's condition and fate in 1998-99. According to the column, the former guardian ad litem changed his mind about Terri's wishes after the last trial, based on the medical testimony.

Elsewhere, nationally syndicated columnist Ellen Goodman has these thoughts today on the Schiavo case.

Finally, the Schindlers are scheduled to be on Larry King Live this Friday at 9 p.m. EST.



Friday, November 07, 2003

 
Schiavo News. The St. Pete Times reports here that, on Wednesday, the Schindlers filed an amicus brief with Judge Baird in which they defend the constitutionality of the law that permitted Governor Bush to order Terri's feeding tube reinserted.


Saturday, November 08, 2003

 
Schiavo News. Yesterday, Judge Baird denied Governor Bush's motion to dismiss Michael Schiavo's challenge to the constitutionality of the new law that allowed the Governor to order Terri's feeding tube reinserted. You can read about it in this story from the AP.

The story indicates that Judge Baird has now given the Governor until Monday to respond to Michael's constitutional arguments on their merits.


 
More Schiavo News. The folks from the St. Pete Times have culled through the trial transcripts from this case and put together this story on the evidence of Terri's wishes. It's a good story, and it brings up pieces of testimony that have been ignored by many in this now very public controversy.

I should add one thing to the Times story: The story can be read to suggest that the words attributed to Terri were the only evidence the trial court relied upon to find that Terri would not wish to continue life-prolonging procedures in her current condition. That's not the case. In making that decision, the trial court was required to consider many factors, including Terri's current medical condition and the likelihood of any significant recovery.


 
And Still More Schiavo News. The AP has this interesting story on the medical aspects of the Schiavo case, comparing them to those of the case of Terry Wallis.

The St. Pete Times has this story about the investigation to be conducted by the new court-appointed guardian ad litem for Terri, Dr. Jay Wolfson. According to the story, Wolfson has been appointed to examine whether Terri can benefit from therapy that might allow her to swallow food and water, but Governor Bush wants Wolfson also to investigate whether Terri would want to "die by starvation."

Finally, I've found the answer to my question below about what happened to the Schindlers' scheduled appearance on Larry King Live. The print version of today's St. Pete Times contains the following in a box alongside the main Schiavo story linked below: "Bob and Mary Schindler, the parents of Terri Schiavo, canceled an appearance on Larry King Live scheduled for Friday night because of exhaustion. A family spokeswoman said the family was trying to reschedule." That note is not found on the Times's web site.



Monday, November 10, 2003

 
Schiavo News. The folks at the St. Pete Times have gone through four hours of video introduced as evidence during the trial court proceedings in the Schiavo case, and they have put together this story on the big picture of Terri's condition.

 
Schiavo Briefs Coming In. Here, you can access a copy of the Schindlers' legal brief defending the constitutionality of the new law that allowed Governor Bush to order Terri's feeding tube reinserted. Governor Bush should be filing a brief defending the law today.

You can read Michael Schiavo's brief arguing against the constitutionality of the new law here. You can also read the earlier Abstract Appeal post on the value of (and some cautions about) reading court briefs here.


 
Schiavo News. The latest news is available here from the AP, and I am sincerely wishing I was on the service list for these cases so I could better follow them. According to the story, House Speaker Johnnie Byrd has requested Judge Baird's permission to file an amicus curiae ("friend of the court") brief defending the constitutionality of the new law at issue. More interestingly, the story indicates that today, instead of filing a brief on the merits of Michael Schiavo's constitutional challenge, Governor Bush initiated an appeal from Judge Baird's order denying the Governor's motion to dismiss the case.

Here's what seems to be going on: The Governor moved to dismiss Michael's suit against the Governor based on (1) improper venue, which is to say that the case was filed in the wrong place, and (2) a failure to serve Governor Bush with process, which is a legal way to say Michael Schiavo's lawyers did not properly deliver the suit papers to the Governor. Why would the Governor file such a motion? I cannot say, but it seems the Governor would rather litigate this case in Tallahassee, rather than Clearwater. (I'll also note that appeals from Tallahassee's trial courts are not brought to the Second District, which previously heard all of the appeals in the Schiavo case, but are instead brought to the First District.)

Judge Baird denied the Governor's motion to dismiss last week, and Florida law permits that decision to be reviewed immediately by the local district court of appeal -- here, the Second District. Florida law also provides that where a public officer files an appeal, the proceedings in the lower court are automatically stayed -- meaning that they stop where they are for the time being. So things have now come to a halt in Judge Baird's case, and the Governor does not have to file his brief today on the merits of Michael Schiavo's challenge. The law, however, does permit Michael Schiavo to ask Judge Baird (and, if necessary, to ask the Second District) to lift the stay and allow the trial court proceedings to continue while the appeal proceeds.

One last point: the appeal will concern only the merits of the Governor's arguments on venue and service of process. The appeal will not concern the new law's constitutionality.



Tuesday, November 11, 2003

 
Schiavo News. The Tampa Tribune has a story here, and the St. Pete Times has a story here, on the two Schiavo-related developments from yesterday: House Speaker Johnnie Byrd's decision to file an amicus curiae ("friend of the court") brief defending the constitutionality of the new law being challenged by Michael Schiavo, and Governor Bush's decision to appeal Judge Baird's rulings that the suit was filed in an appropriate county and that the Governor has no basis to complain about how he was served with the suit papers. If you scroll down a little to yesterday's last post (or click here), you can read my comments on the immediate effects of the Governor's appeal.


Wednesday, November 12, 2003

 
Schiavo News. According to this recent story from the AP, Michael Schiavo has filed a motion asking Judge Baird to vacate the stay that currently has the constitutional challenge effectively stopped in its tracks. As discussed more in this prior post, the stay went into effect automatically when Governor Bush initiated an appeal of Judge Baird's decision denying the Governor's motion to dismiss the case. By rule, the trial judge has discretion to lift the stay and allow the case to continue while the Governor pursues his appeal. From the quotes in the AP story, it appears Michael's attorney is mincing no words about what he believes to be delay tactics by the Governor.

While the AP story provides a helpful update, it unfortunately concludes with the following language:

Florida courts had repeatedly affirmed the right of Michael Schiavo to remove his wife's feeding tube because he is her legal guardian.
This disappoints me. I know the Associated Press folks try to get things right, and perhaps they will release a corrected version of the story soon, but I cannot understand why the sophisticated media cannot keep straight that Michael Schiavo's status as Terri's guardian has nothing to do with the removal of her feeding tube. As Abstract Appeal's Terri Schiavo Information Page tries to make clear, a court, not her guardian, determined that Terri would choose not to continue life-prolonging measures in her current condition. That decision came after a full trial and it was affirmed by a unanimous three-judge panel of the Second District Court of Appeal. Michael Schiavo did not make that decision. He advocated for it, and he testified in support of it, but he did not make it. No court has affirmed (let alone repeatedly affirmed) "the right of Michael Schiavo to remove his wife's feeding tube" for any reason.



Friday, November 14, 2003

 
Schiavo News. The Schindlers are scheduled to appear on Larry King Live tonight at 9 p.m. EST.

UPDATE: Scheduled or not, they were not on tonight's program. I'm no longer going to believe anyone who tells me (or any Terri Schiavo-affiliated site that says) the Schindlers are going to be on Larry King Live -- or at least I'm not going to post anything about any such scheduled appearance. The Schindlers were apparently on Oprah, today, though.



Saturday, November 15, 2003

 
Schiavo News. Today's St. Pete Times has the latest here. To sum it all up, yesterday Judge Baird vacated the stay put in place automatically when Governor Bush appealed the denial of his motion to dismiss the case. (For more on the stay and the motion to dismiss, see this post.) Vacating the stay allows the case to go forward before Judge Baird while the Second District considers the Governor's appeal.

At the hearing on whether to vacate the stay, Judge Baird apparently gave strong indications that he believes the new law is violating Terri's right to privacy -- meaning her right to determine whether she wishes to continue receiving life prolonging measures in this situation. Recall that previous trials and appeals determined, by clear and convincing evidence, that Terri would chose not to continue receiving her feeding tube under these circumstances.

Judge Baird has apparently ordered the Governor to file his brief on the merits of Michael's constitutional challenges by Monday. Given the judge's comments yesterday, it is probably a good bet that a hearing on the entire matter will shortly follow.





Sunday, November 16, 2003

 
Schiavo News. It turns out yesterday's "latest" was not the latest at all. The St. Pete Times reports here that, late Friday, the Second District issued an order "indefinitely" reinstating the stay of the case before Judge Baird.

So what just happened? Recall that Governor Bush moved to dismiss Michael's constitutional challenge to the new law based on two procedural arguments: that Michael's attorney did not deliver a copy of the lawsuit to the Governor in the right manner (the service of process issue), and that Michael should have filed the suit in Leon County, not Pinellas County (the venue issue). Judge Baird denied that motion, rejecting both grounds. Governor Bush then filed a notice that he intended to appeal that denial, and, under Florida's procedural rules, that notice triggered an automatic stay of the case until the appellate court resolves the service of process and venue issues.

Under the procedural rules, however, trial judges (like Judge Baird here) have discretion to vacate this sort of automatic stay, and the trial judge's ruling on whether to do so can be immediately reviewed by the appellate court. By all appearances, that is what is happening here. Michael moved in the trial court to vacate the automatic stay, Judge Baird granted that motion (which would allow Michael's constitutional challenge to go forward at the same time the Governor's appeal goes forward), and Governor Bush moved in the appellate court to have the stay reinstated. The Second District is now considering that motion, and, in the meantime, the court has issued a stay.

The Times's report that the stay is indefinite is probably inaccurate. The stay is likely a temporary one that will last only until the court rules on whether to reinstate the stay. I suspect this because the story indicates that Michael has until Tuesday to file a response with the Second District explaining why the trial court proceedings should be expedited. I take that to mean that the Second District has stayed the trial court proceedings temporarily to allow both sides to be heard on the issue of whether the trial court proceedings should be stayed during the appeal of the order denying the Governor's motion to dismiss.

So we have a stay while the appellate court decides whether to enter a stay. That may seem bizarre to some, but it is actually quite normal. Michael will file his response on the issue of the stay Tuesday. The court will then rule on that issue. If the court grants the Governor's motion, the case in front of Judge Baird will remain halted until the appellate court rules on the procedural issues raised in the Governor's motion to dismiss. If the court denies the Governor's motion, then the trial court and appellate court proceedings will both go forward at the same time.





Wednesday, November 19, 2003

 
Schiavo News. Yesterday, the Second District vacated the temporary stay it imposed Friday on the case before Judge Baird. Read about it here in today's St. Pete Times.

Shortly after the Second District ruled, Judge Baird gave Governor Bush until 5 p.m. today to submit his legal brief defending the new law that allowed the Governor to order Terri Schiavo's feeding tube reinserted. You can read about that order and the Governor's reaction in today's Sun-Sentinel and Tampa Tribune.

In resolving the stay issue, the Second District has decided to let the case proceed simultaneously in both the trial and appellate courts. Judge Baird will continue to hear Michael Schiavo's challenge that the new law is unconstitutional, and Governor Bush will now have to explain why he believes the law is constitutional. At the same time, the Second District will consider the Governor's appeal of Judge Baird's order denying the Governor's motion to dismiss. Recall that the Governor has asserted that the case before Judge Baird should be dismissed because, according to the Governor, Michael's attorneys did not properly serve the Governor with the lawsuit and the case should be heard in Leon County, not Pinellas County. Judge Baird rejected those arguments, and the Second District will now determine whether that decision was correct.



Thursday, November 20, 2003

 
Schiavo News. Governor Bush filed his response yesterday on the merits of Michael Schiavo's constitutional challenges to the new law that permitted the Governor to order Terri's feeding tube reinserted. I have not read the Governor's brief yet, but these articles in the St. Pete Times and the Tampa Tribune indicate that the Governor is doing a number of things. First, he is defending the law's constitutionality on the various grounds raised by Michael's challenges, such as separation of powers, equal protection, and Terri's right of privacy. Second, the Governor is asserting that he is not bound by the factual decisions made in the earlier trials regarding Terri's wishes and he is asking for a jury trial on those issues, at which they would be decided again. Third, the Governor has separately moved for Judge Baird to recuse himself, saying the comments the judge made last week about how the Governor's actions are affecting Terri's right of privacy show the judge is biased against the Governor.

Wow. That's a good deal to keep track of here. Florida law requires that Judge Baird rule on the recusal motion first. If the judge grants the motion, the case will be reassigned to another trial judge. If Judge Baird denies the motion, the Governor could "appeal" the decision, but I note that this "appeal" would not trigger the automatic stay mechanism that we saw last week when the Governor appealed the denial of his motion to dismiss. (That's because denial of a motion to recuse is immediately reviewed by initiating a whole new proceeding in the appellate court -- a petition for a writ of prohibition -- which, technically, is not an actual appeal of the trial judge's decision. The automatic stay comes into play only where a state official initiates an appeal as that term is technically used in Florida law.)

As for the jury trial request, that brings up a host of constitutional and other legal issues. I suppose the Governor is arguing that res judicata (the concept that a decision made in an earlier case remains binding on the parties) does not apply to him because he was not a party in the earlier trials between Michael and Terri's parents. So there is an issue about whether the Governor can relitigate those trials and the decisions made in them, and if it were to be determined that those issues could be relitigated here, then there would be an issue about whether the findings at trial are to be made by a judge or a jury.

Expect a very quick decision from Judge Baird on the recusal issue.



Friday, November 21, 2003

 
Schiavo News. Judge Baird yesterday denied Governor Bush's motion asking the judge to recuse himself, according to this story in today's St. Pete Times. The Governor had argued that the judge appeared biased.

Procedurally speaking, it is not clear what is going to happen next. Everyone knows that the case is about whether the new law we've been talking about is constitutional, but the two sides are taking very different positions regarding the procedural posture of the case. I'll discuss this further in a post later today.




 
More Schiavo News. Governor Bush has posted here his brief defending the law that permitted him to order Terri Schiavo's feeding tube reinserted. I encourage those interested in this case to read it, and to read the briefs filed by Michael Schiavo, the Schindlers, and Florida's Speaker of the House. The last two are amicus curiae ("friend of the court") briefs filed by persons who are not parties to the lawsuit. Between all of the briefs, you will get a good sense of the legal battleground here.

You may also pick up on two significant, and related, differences in how the parties believe this case should go forward. Michael sees this case as a purely legal one about whether the Legislature had the constitutional authority to enact the new law that permitted the Governor's intervention. The Governor, on the other hand, contends that this case is about Terri's wishes. He asserts that Judge Greer's findings from the earlier trials regarding Terri's wishes should not simply be accepted here; instead, they should be relitigated. The Governor has even filed a separate motion to strike Michael's brief because it is filled with recitations based on findings from the prior proceedings.

How will this be resolved? And when? That's hard to say. One guess is that Michael will soon file an opposition to the Governor's motion to strike, after which Judge Baird will quickly hold a hearing on that motion. At the hearing, the judge will decide whether he thinks the issues are purely legal ones (Michael's position) or whether new fact-finding is required about Terri's wishes (the Governor's position). From there, depending on how the judge rules, we'll either have a hearing scheduled to argue all of the legal issues or we'll begin the involved fact-finding process we call discovery which will lead up to another trial. Just a guess.


 
And Even More Schiavo News. The AP reports here that Governor Bush has petitioned the Second District to remove Judge Baird from the constitutional challenge case. As I mentioned previously (in this post), this is technically not an appeal of Judge Baird's denial of the Governor's motion for disqualification, so the automatic stay we saw with last week's appeal by the Governor will not be in play here. Practically speaking, though, this is in essence an appeal, so you will probably see it referred to as such by the media (and maybe even me, if I'm not careful).

The Second District has the ability to deny the petition without requiring a response from Michael Schiavo, or, of course, the court could order a response and then rule either way. I suspect we'll know more on that score either late today or early tomorrow.



Sunday, November 23, 2003

 
Schiavo News. William Levesque, a reporter for the St. Pete Times, has this story on how money is perhaps at the root of the Terri Schiavo case. The sworn testimony recited in the article may come as a surprise, or even a disappointment, to some who have chosen to believe one side over the other in this case. I see it all as further proof that no one should try to use tidbits of information to determine where the truth lies in a case like this one. I believe from experience that you cannot know what really happened in the lives of other people unless you were there or, perhaps, you participate in a full trial over the matter. I cannot make either claim, and that is why I do not contend that I know the truth about who said what or did what in the Schiavo case, or why anyone did any thing.

What I know is that we have a legal system to sort out cases like Terri's. It is a system that we should respect -- it is the product of many great persons' efforts to address the competing moral, practical, and legal interests involved. It is surely not a system beyond improvement, but we can only improve what we understand, and part of my goal in maintaining the Abstract Appeal web log is to inform people about Florida law, including how it handles cases like Terri's.

To that end, I received a question this past week that I wish to answer publicly, since I think the answer may be helpful to many readers. The question is whether it matters, legally, that the definition of "life-prolonging procedures" found in Chapter 765 "was not on the books in its present form when Terri Schiavo expressed her wishes not to be kept alive by artificial means." The simple answer is no, but even people who are paying attention to the law here may not appreciate the main reason why.

Chapter 765, entitled, "Right To Decline Life-Prolonging Procedures," provides Florida's citizens with a right to decline what section 765.101(10) defines as "life-prolonging procedures." As the astute inquirer no doubt appreciates, at the time of Terri's heart failure, that definition specifically excluded "the provision of sustenance" (which would include a feeding tube) as the sort of procedure that could be refused. Only later was that definition changed to include the provision of sustenance as a life-prolonging procedure that can be refused.

The right provided by chapter 765 is a statutory right, but statutes are not the only source of Florida citizens' rights. Another, in some ways more important, source of rights is the Florida Constitution, and Article I, section 23, of that document provides what is commonly known as Florida's "right of privacy":

Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.
In the 1990 case In re Guardianship of Browning, the Florida Supreme Court made some very significant decisions about the scope of this privacy right.

First, the court ruled that "[a]n integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment."

Second, the court ruled that a person's privacy-based right to refuse medical treatment encompasses "all medical choices" by that person.

Third, the court decided that there is no constitutionally significant distinction between supplying someone with oxygen by a mechanical respirator and supplying food and water through a feeding tube -- both constitute treatment that may be declined.

Fourth, the court ruled that a person does not lose the right to refuse medical treatment when he or she becomes incompetent.

Fifth, the court decided that a surrogate may make the choice for a person unable to exercise his or her privacy right, in the sense that the surrogate may determine what choice the person would make, not what decision the surrogate or anyone else would make or the decision that appears to be in the person's "best interests."

Sixth, the surrogate decisionmaker may be the person's legal guardian or a close family member or friend.

It is also significant that the when the Supreme Court decided Browning, the court was reviewing a decision by the Second District that held the court system is open to resolve the dispute if "doubt exists or there is a lack of concurrence among the family, physicians, and the hospital, or if an affected party simply desires a judicial order . . . ." In other words, when disagreement exists, Florida's courts can determine what decision the person would make. Though the Supreme Court did not address this procedure in Browning, the court appeared implicitly to approve it. (This is the procedure that Michael Schiavo used in this case to allow Judge Greer to make the decision about what Terri would decide to do.)

Getting back to Chapter 765 and Terri's case, it is not important that the statutory right to decline life-prolonging procedures did not encompass the withdrawal of a feeding tube when Terri originally expressed her wishes, or even when her heart failed, because the right to refuse a feeding tube is a constitutional right that is effective regardless of whether it is or was codified in a statute. Of course, the statutory right is now better aligned with the constitutional one, and it may well be correct to say that the statute applies to Terri today without regard to the constitutional right, but given that the constitutional right is firmly present, it is enough simply to recognize its application to Terri's case.

I hope some find this discussion helpful.



Tuesday, November 25, 2003

 
Schiavo News. The editorial board at the Palm Beach Post has these thoughts on Governor Bush's timing in the Schiavo saga.


Wednesday, November 26, 2003

 
Schiavo News. The AP has the latest information on the Schiavo saga in this story, which explains that, yesterday, Governor Bush "appealed" Judge Baird's decision not to recuse himself from the case, and Michael Schiavo's attorneys have announced they will move for summary judgment on Michael's constitutional challenge to the law that allowed the Governor to order Terri's feeding tube reinserted.

I have two comments on these updates.

First, prior reports that the Governor filed his "appeal" this past Friday appear to have been incorrect. Nonetheless, the comments I made about that "appeal" -- including why it is not really an appeal, thus I keep putting the word in quotation marks -- apply now. See my prior posts here and here.

Second, the AP story (like the many Florida newspaper stories that borrowed from it) is a bit unclear about what Michael Schiavo is asking the court to do. The AP states Michael is asking the judge "to rule on [the] lawsuit against Bush without waiting for the case to go through the normal, lengthy judicial process." That deserves some explanation. Michael is going to move for a summary judgment. As any lawyer will tell you, summary judgment motions are a normal, common part of trial court practice. They tell the court (though the court can disagree) that the case has no factual issues that require a trial and that a decision can be made on the merits of the case based solely on the law. That, it seems, will be Michael's argument here: there are no factual issues that require a trial in order to determine whether the new law is constitutional. We know from the Governor's prior filings that he disagrees -- he wants a trial on the issues that were previously tried before Judge Greer, namely what Terri's wishes would be in this situation. So we know the Governor will oppose the summary judgment motion on the ground a trial is necessary and on the ground that Michael is incorrect in his arguments about the law's constitutionality.

The difference between the typical case and the situation here, however, is that summary judgment motions are normally heard after all of the fact development in a case has occurred. Michael is taking the position that no fact development is necessary and therefore it should not be done here. Presumably, it would take a great deal of time, not to mention money and patience, for the parties to conduct the factual investigations necessary to permit them to hold another trial on Terri's wishes (or on other issues).

Whether Judge Baird decides to rule on the legal issues immediately or allow the parties time to develop a factual record for a new trial will probably turn on whether the court agrees with the Governor's position that he is not bound by the findings in the prior trials. For now, we can just wait and see which way the judge rules on that question.



Tuesday, December 02, 2003

 
Schiavo News. We have some news in the Terri Schiavo saga. First up, according to this story from the AP, Judge Baird has issued the protective order Michael Schiavo requested to prevent Governor Bush from deposing numerous persons who have offered statements favorable to Michael's positions. I have not read the order, but it seems that the judge has accepted Michael's position that such discovery is not necessary to resolve the legal issues that Michael has raised.

The less legal and perhaps more interesting news is that Jay Wolfson, the independent guardian ad litem appointed to advise Governor Bush, has completed a written report that the Governor made public today. Unfortunately, I do not see that anyone has posted the actual report, but this story from the AP gives some insights.

According to the story, Wolfson made several findings and recommendations. He found that there is no likelihood that Terri will improve. He also found that Judge Greer's decision to withdraw Terri's feeding tube was "firmly grounded" in Florida law. Wolfson recommended, though, that Terri undergo swallowing tests to see if she could eat on her own, that an independent guardian (i.e., not Michael) be appointed to protect Terri's interests, and that he (Wolfson) be permitted to remain on the case for as long as controversy continues to exist over Terri.

The AP story quotes the Governor as saying that the testing recommendation was "the good news part of this" and as not having changed his mind about staying the feeding tube's withdrawal.

I suspect we will hear more details on these events, and more reactions, in tomorrow's news.



Wednesday, December 03, 2003

 
Schiavo News. Yesterday's last post gave what was then the latest news in the Terri Schiavo saga. Today's papers give a bit more information about the contents of Jay Wolfson's report. Check out the local coverage by the St. Pete Times, the Tampa Tribune, and even the Miami Herald.

 
More Schiavo News. A very kind thank you from Abstract Appeal to the reader who sent in a link to Jay Wolfson's report. You can read the report in its entirety here.

Wolfson's summary of the underlying events appears quite thorough. I encourage people searching for answers in this case -- or, better, people who believe they somehow know the answers about who did or said what -- to read the report. It is factually enlightening on numerous fronts.

Given that this web log is devoted to the law, and I am following Terri's case here not for its social or political implications but for its legal significance, the following portion of the guardian ad litem's report is worth reproducing:

A legal analysis of the tens of thousands of pages of documents in the case file, against the statutory legal guidelines and the supporting case law, leads the GAL to conclude that all of the appropriate and proper elements of the law have been followed and met. The law has done its job well. The courts have carefully and diligently adhered to the prescribed civil processes and evidentiary guidelines, and have painfully and diligently applied the required tests in a reasonable, conscientious and professional manner. The disposition of the courts, four times reviewed at the appellate level, and once refused review by the Florida Supreme Court, has been that the trier of fact followed the law, did its job, adhered to the rules, and rendered a decision that, while difficult and painful, was supported by the facts, the weight of the evidence and the law of Florida.


 
And Another Schiavo Thought… The report mentions the possiblity of a change in Florida law -- to require written advance directives -- before the current constitutional challenge is completed. I have a few thoughts to offer on that possibility, but the day job calls. (Actually, it screams. Day and night.) I'll post again later tonight.

 
OK, Here's That Thought. Jay Wolfson's report to Governor Bush, accessible here, observes that while Michael Schiavo's current constitutional challenge continues, the Legislature could, theoretically, rewrite Chapter 765 to provide that only written advance directives can be effective in situations like Terri's. I mention this because it is a suggestion I have seen and heard often since the Schiavo story became big news, and it is a suggestion that leads to some very interesting questions. I would like to highlight one of them. To be clear, I do not wish to speculate on whether the Legislature would make such a change. Nor do I wish to speculate on what the result would be if such a change were to occur, whether in Terri's case or any other. What I want to do is point out that, beyond Terri's case, it would be interesting to see how Florida's courts resolve the issue of whether the Florida Legislature has the power to require written advance directives.

Why might it not? Consider the distinction between (1) the statutory right set forth in Chapter 765 to refuse life-prolonging measures and (2) the privacy right under Article I, section 23, of the Florida Constitution, to refuse unwanted medical treatment. Just because the statutory right does not cover a person's present situation does not mean that the constitutional right will not. This is precisely what happened in the In re Guardianship of Browning case decided by the Florida Supreme Court in 1990. There, the statutory right as it applied to Estelle Browning did not encompass the right to refuse a feeding tube, but the court held that Browning's constitutional right of privacy permitted her, or her surrogate, to make that decision. Theoretically, at least, the courts could find that while the Legislature could limit Chapter 765's refusal right to instances where a person has made an advance, written directive, the constitutional right cannot be so limited. I am not suggesting that the courts would do so; nor am I saying they should or should not. I am merely pointing out that this issue should not be overlooked when considering whether the Legislature should simply pass a law requiring everything to be in writing.

I previously discussed Browning at some length in this post, but it strikes me that folks would benefit from having direct access to the decision itself. I have placed its text in a file on the Abstract Appeal server, and you can access that text here.



Thursday, December 04, 2003

 
Schiavo News. Mary Jo Melone, columnist for the St. Pete Times, has these thoughts today on Jay Wolfson's report and on what the parties' attorneys said when she talked with them about a proposed compromise.




Friday, December 05, 2003

 
Schiavo News. The AP has this story on a state senator's proposed bill to require written advance directives before life-prolonging measures could be discontinued.


Sunday, December 07, 2003

 
Schiavo News. Well, a poll. The St. Pete Times and Miami Herald jointly polled Florida voters on various issues, including reaction to the law passed to give Governor Bush authority to order Terri Schiavo's feeding tube reconnected. In short, the poll found most voters oppose the move and believe a spouse, not parents, should make decisions for those incapable of doing so themselves. You can read the Times's story on the poll here, and you can read the Herald's story here.




Monday, December 08, 2003

 
Schiavo News. A reader has kindly sent in a link to this column from yesterday's Miami Herald. The columnist, Fred Grimm, has some fairly strong views on what is keeping Terri alive.


Wednesday, December 10, 2003

 
Schiavo News. Terri's case has prompted a campaign to raise awareness about living wills. Read about it in this story in today's St. Pete Times. Note that the story contains the misstatement that Michael Schiavo made the decision to remove Terri's feeding tube. I'm a little surprised that the Times's editors did not catch that error when they took the story from this wire from the AP. The Times has generally done a good job of covering the Schiavo story.

 
Schiavo News. Today, the Second District rejected a petition by Governor Bush to have Judge Baird disqualified from hearing the constitutional challenge in the Schiavo case.

To back up a second -- recall that Michael Schiavo is challenging the constitutionality of the new law that permitted the Governor to order Terri's feeding tube reinserted. The Governor moved to dismiss the case on procedural grounds, and Judge Baird denied that motion. The Governor then appealed that decision, triggering an automatic stay of the proceedings before Judge Baird, but Judge Baird ordered the stay lifted and that the case should proceed at the same time the appeal proceeds. In the course of making that decision, Judge Baird made comments that the Governor believed showed the judge to be biased against the Governor's position, such as the statement that the new law violates Terri's right of privacy and is presumptively unconstitutional. So Governor Bush filed a motion asking Judge Baird to recuse himself for bias. Judge Baird denied that motion. Governor Bush then filed a petition with the Second District, asking that court to disqualify Judge Baird based on his comments and actions.

Today's order -- available here -- refuses to disqualify Judge Baird and holds that the judge's comments and actions would not suggest to a reasonable person that the judge had any bias in the case.

Today's order may also shed some light on how the Second District sees the constitutional case. The court explained that its prior opinions involving Terri Schiavo can reasonably be read to say that Terri's constitutional right of privacy is effectuated by the court decisions to remove Terri's feeding tube. The court also stated that the Governor's order to reinsert the tube "effectively overrul[ed]" those court decisions. This discussion suggests that at least one hurdle the Governor is going to have to overcome to win this case will be to show that the state had a sufficiently compelling interest to interfere with Terri's privacy right and her judicially-determined decision not to continue with life-prolonging medical treatment (i.e., the feeding tube).

I would not be surprised to see a headline later that reads, "Appellate Court Agrees Terri's Law Is Presumptively Unconstitutional." If that is the headline, though, hopefully it will be followed by the comment that this does not mean the law has been found unconstitutional -- it means just that the courts view laws infringing on privacy rights (like this new law) to be presumptively unconstitutional and put the burden on the state (here, the Governor) to prove that the law is constitutional. Whether the Governor will meet that burden remains to be seen.

Keep in mind that the Second District is still considering the Governor's appeal of Judge Baird's refusal to dismiss the case. The Governor has maintained that the suit should have been filed in Leon County, not Pinellas County, and that he was not properly served with the suit papers.


 
More Schiavo News. This story from the AP discusses the order mentioned in the previous post and includes a response from Governor Bush.


Thursday, December 11, 2003

 
Schiavo News. Abstract Appeal had this post yesterday on the most recent appellate decision in the case. For more coverage, see the stories in today's Tampa Tribune and St. Pete Times.

UPDATE: You can also read Governor Bush's written response to the decision by looking here.


 
More Schiavo News. A reader sent in a question asking what the Second District meant when it concluded yesterday's opinion in the Schiavo case by saying that the Governor's petition was denied "with prejudice."

The Governor petitioned for a writ of prohibition. Prohibition is a discretionary writ, meaning that the court has the ability to decline issuing the writ even if the requirements for its issuance are met. Because prohibition is a discretionary writ, some attorneys might suggest that the court's decision is not binding and that the same issue could be raised later in the case -- say, for instance, on appeal from a final judgment.

By indicating that the Governor's petition was denied "with prejudice," the court was likely signaling that its decision was on the merits of the request and that the court would reach the same result in an appeal of right from a final judgment. In other words, the appellate court was suggesting that it is done with this disqualification issue.



Monday, December 15, 2003

 
Schiavo News. This weekend, the St. Pete Times ran this interesting article on some legislative proposals to make it more difficult to withhold life-prolonging procedures. The article is well done, though it omits mention of any potential for conflict between the constitutional and statutory rights to refuse medical treatment.


Thursday, December 18, 2003

 
Schiavo News. Governor Bush asked Judge Baird to delay the hearing previously set for Friday on the constitutionality of the new law that permitted the Governor to order Terri Schiavo's feeding tube reinserted. Yesterday, according to this story in the St. Pete Times, Judge Baird granted a brief extension -- until this coming Tuesday -- to accommodate the Governor's attorney's schedule, but the judge denied a request for a longer extension that would allow the Governor more time to investigate the case.

In non-legal news, this story from the Times explains that the Hospice where Terri has been staying is undergoing renovations, so she has been moved to another facility. Note that this story does not contain a line found at the end of the story on the judge's ruling: a line indicating that, according to the Schindlers, at her new location, Terri is more active and responsive than she has been since her feeding tube was removed and reinserted in October.



Tuesday, December 23, 2003

 
Schiavo News. Much is going on, though there are not many details reported about it all. Today's Tampa Tribune offers some insights in this story. Apparently, Governor Bush has recently made a series of moves. He has sent letters to the Sixth Circuit's chief judge and to Jay Wolfson, the court-appointed guardian ad litem whose appointment expired last week, asking that Wolfson be reappointed in the case. The letters apparently raise questions that the Governor would like answered, including questions about whether some sort of physical abuse led to Terri Schiavo's current condition and whether Michael Schiavo acknowledges any conflict of interest in his serving as her guardian.

The tail end of the story also mentions that Governor Bush yesterday filed some sort of appeal in the case and that he is taking the position that this latest appeal stays the case before Judge Baird, preventing today's scheduled hearing on the constitutionality of the new law that permitted the Governor to order Terri's feeding tube reinserted. The story is unclear about what order the Governor has now appealed.

Interestingly, the story indicates that the Governor's letters discuss the possiblity that abuse led to Terri's current condition and that a medical malpractice settlement award may have created a conflict of interest for Michael Schiavo. There is no mention, though, of one of the ways in which these two subjects are linked -- something that for some reason seems not to have hit the radar of many who are discussing this case: a jury awarded Terri and Michael damages in the malpractice case after finding that Terri had bulimia, that her bulimia caused her heart failure and brain damage, and that her doctors were negligent in failing to diagnose Terri's bulimic condition. For more on this part of the Schiavo story, see this October 2003 column from the attorney who represented Terri and Michael Schiavo in the medical malpractice case.



Wednesday, December 24, 2003

 
Schiavo News. Despite reports that Governor Bush filed another appeal Monday and triggered an automatic stay of the trial court proceedings, the hearing scheduled for yesterday before Judge Baird apparently went forward. Assuming the reports about a second appeal were correct, Judge Baird perhaps entered an order vacating the automatic stay and allowing the hearing to proceed. Perhaps. The news reports are not discussing this aspect of the story.

At any rate, we know that Judge Baird heard arguments from the Governor's and Michael Schiavo's attorneys yesterday, and at the conclusion of the hearing the judge announced that he is ready to rule but will wait for the Second District to resolve the Governor's pending appeals. You can read the detailed local coverage in today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. The reports quote the Governor's attorney as expecting Judge Baird to rule in Michael Schiavo's favor and declare the law at issue unconstitutional. The Governor's attorney also indicated that the judge has effectively denied the Governor's request that another trial be held, this time with a jury, to determine what Terri's wishes would be.

I note that the Tribune story states, by way of background, that Terri Schiavo "has been in what most doctors term a persistent vegetative state since February 1990, when she suffered unexplained heart failure." In this post from yesterday, I commented on this subject and provided a link to this column, in which the attorney who represented Michael and Terri in their medical malpractice case explained what caused Terri's heart failure.



Monday, December 29, 2003

 
Schiavo News. The AP has this year-end wrap up on how the Terri Schiavo case caught the nation's attention in 2003. The story is a nice summary, though it contains at least one tiny error: it indicates that courts have "repeatedly affirmed Michael Schiavo's right to remove the feeding tube" from Terri, but that is not what happened here. A court decided, after a full trial, that Terri would not wish to continue receiving the feeding tube under her current conditions, and courts have repeatedly affirmed that ruling. Michael did not make the decision. He just advocated for the decision he thought the court should reach.

A second possible inaccuracy lies in the statement, "Circuit Judge W. Douglas Baird has said in open court that he considers the law unconstitutional." Now, I have not been in court and cannot say affirmatively that I know Judge Baird did not make such a statement, but I assume that the story is referring to the same comments that were the subject of Governor Bush's unsuccessful effort in this case to have Judge Baird disqualified. The comments at issue there did not indicate that the judge considered the law unconstitutional -- they reflected the judge's belief that the law at issue infringed upon Terri's right to privacy.

Those of you who are not lawyers may think this is simply classic lawyer-like pickiness over words, but there is a substantial difference in the two statements. Just because a law infringes, or invades, or intrudes upon a particular constitutional right does not mean that the law is unconstitutional. The ultimate question is whether the law can do so in keeping with the constitutional scheme, and for each right, the case law has typically developed a test or series of tests to determine if the intrusion is constitutionally permissible. A simple example might be a law that requires any group of people to obtain a permit before they can protest in a public place -- there are many such laws, and all of them intrude on the right to free speech, but most if not all of them are entirely constitutional. They are permissible infringements because they do no more than provide reasonable regulations on the time, place, and manner of speech.

Back to Judge Baird, I do not believe the judge has stated whether he believes the law is constitutional. I believe that, thus far, he has only said that the law intrudes upon Terri's right to privacy, and with regard to that right, the issue will then be whether such an intrusion is permissible. The Governor has argued that it is; Michael Schiavo has argued that it is not. We will just have to wait and see who wins, both now and in the appellate proceedings that will follow.




 
Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.
 
 

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