posted
""H.R. 1332 authorizes the removal of cases in State court to U.S. federal court to vindicate the federal rights of incapacitated persons under the U.S. Constitution or any federal law."
Hm. To be perfectly honest, I'm not sure why this has to be federalized. But I guess that's the trend. It must really, really suck to be a judge in anything but a federal court nowadays, since any decision you make is going to have a law written specifically making your opinions irrelevant.
posted
Yes, I agree Tom. It is a shame we have such activist judges who try and legislate from the bench instead of ruling on laws.
Posts: 2845 | Registered: Oct 2003
| IP: Logged |
posted
Adam, I can't find the text of the bill yet, but it appears that this bill's effects will not be limited to one case as the Florida bill's effects were. It's being triggered by a single case, but being written with general applicability.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
The bills would block the removal of feeding tubes from patients in a persistent vegetative state who didn't leave specific verbal or written instructions otherwise.
That addresses a pretty specific case so this can't happen again. How the judges have allowed this to go on is beyond me. Since when is getting fed “artificial.” To me artificial means something like a breathing machine. Not something that is natural like eating. Seems to me that they’re be activist here by trying to allow euthanasia and encouraging right to die. There are different ways you can be an activist.
[ March 17, 2005, 10:54 AM: Message edited by: Jay ]
Posts: 2845 | Registered: Oct 2003
| IP: Logged |
posted
I don't have time at all today to give a primer on the details of the issues, except to say that most people commenting on it don't really seem to have any idea of the issues involved in the legislation or in the Schiavo case in general. That comment applies equally to Tom, Jay and Adam. (The omission of Dag's name was intentional - he's been following the case and has an understanding of the legal issues involved.)
I posted this before, but here are some links for some hard information from supporters of the current bill, but from a different framework and perspective than prolife conservatives:
posted
I hate it when this happens - when two things I care about are at odds. On one hand I believe fervently in the sanctity of all life, on the other I'm a fervent supporter of states rights.
Posts: 14428 | Registered: Aug 2001
| IP: Logged |
quote:The law in this case was that if you don't leave instructions as to what to do if you're in a vegatative state, your legal guardian gets to decide what to do.
Nope - the law in this case was that the court should attempt to find out her wishes, and if clear and convincing evidence (a legal standard closer to reasonable doubt than preponderance of evidence) is found that she would have wanted a specific treatment withheld, then the court will allow the guardian to withhold it.
The whole process is supposed to be about discovering what she would have wanted, and is supposed to have a very heavy thumb on the scale in favor of not killing her. Unfortunately, attitudes about "quality of life" put an unacknowledged heavier thumb on the other side.
My big problem with the decision is import - there's no evidence she had considered her actual opinion when making these statements in casual conversation, bias - her husband's testimony is given special weight due to the marital relationship even though he is violating one of the fundamental tenets of that relationship, and bias - clear and convincing evidence of a wish to die is a lower standard for disabled people.
posted
sndrake, I'm not a fan of this law. It's excessively general -- see its use of "medical treatment," which in theory could federalize all determinations of vegetative state -- and unnecessary in its scope. I don't understand why this can't remain a state issue.
quote:I hate it when this happens - when two things I care about are at odds. On one hand I believe fervently in the sanctity of all life, on the other I'm a fervent supporter of states rights.
Man, tough call which of those two is more important.
Just kidding.
This is why states' rights is a non-issue for me. I don't care where the law comes from, so long as it's just. (Not that I think this particular law is just, nor that all life is sacred.)
Posts: 4600 | Registered: Mar 2000
| IP: Logged |
quote:Man, tough call which of those two is more important.
Actually it is.
Legislation doesn't affect one person - you must look beyond individual cases and look toward the effect it has on society as a whole. My heart may break for the Schiavo family, but that doesn't justify passing a law that will have far-reaching effects on more than just one family.
Posts: 14428 | Registered: Aug 2001
| IP: Logged |
posted
I'm not trying to say this one law is the catalyst that will destroy states' rights forever - I'm just stating that I generally, when the chips are down, fall on the side of supporting states' rights.
quote:sndrake, I'm not a fan of this law. It's excessively general -- see its use of "medical treatment," which in theory could federalize all determinations of vegetative state -- and unnecessary in its scope. I don't understand why this can't remain a state issue.
the reason these issues need to go beyond the state level is that we're dealing with a core right of the individual - the right to not be deprived of life without due legal process. There are some serious issues that in this case and similar ones that state courts are loathe to examine - mostly dealing with "findings of fact."
(Dag can jump in and help here if I'm being too sloppy with legal jargon. I'm better than the average bear when it comes to knowledge of the law, but it's no substitute for experience and training.)
Federal courts will examine aspects of a case that state courts won't generally. A couple of issues in the Schiavo case that jump out right away are the rather loose definition of "clear and convincing" evidence - the only testimony of Terri's "wishes" dealt with casual conversation and the testimony came from Michael and two people from his side of the family.
Here's a few other issues, taken from a letter sent to the Florida ACLU:
The findings of the lower guardianship court that Terri would have rejected tube feeding in her present circumstances are so powerfully contradicted that they cannot meet the Cruzan standard. The following are some of the reasons why this is so obvious to organization's as prominent as the National Spinal Cord Injury Association, the National Council on Independent Living and The Arc of the United States (formerly the Association for Retarded Citizens):
Michael Schiavo pursued and won a large malpractice settlement after testifying that he would use Terri's portion of the proceeds on her rehabilitation. Only after securing the settlement did he then allege that Terri would refuse food and water by tube. Over the subsequent years, he spent over $550,000, the majority, of her rehabilitation funds on attorneys to secure a court order that would result in her death. If she had been dehydrated to death when he first requested it, if her family had not resisted, he would have received $700,000 in Terri's rehabilitation funds.
At the time when Terri allegedly stated that she would not want to be kept alive on life support (before 1990), the widely held public concept of "life support" was a ventilator. The general public did not think of simple tube feeding as "life support." So, even assuming for the sake of discussion that Terri made the alleged comment, she is highly unlikely to have meant it to include food and water by tube.
The original guardian ad litem brought into the case long ago at Michael Schiavo's request found that the evidence of Terri's wishes was not sufficiently credible due to Michael's conflict of interest.
One friend of Terri's has stated on CNN that they once argued over the Quinlan case, involving a New Jersey woman in PVS, because Terri objected to the friend labeling Quinlan the "state vegetable." The legal dispute was about Quinlan's ventilator, which was ultimately removed, but not her feeding tube, and she lived for ten more years.
The only witnesses to Terri's alleged statement against life support are from Michael Schiavo's side of the family.
The affidavit of a speech pathologist from the Rehabilitation Institute of Chicago, the number one such facility in the country, asserts that Terri swallows her own saliva and should, therefore, receive a new swallowing test and, if indicated, swallowing therapy. Michael Schiavo has opposed all efforts to attempt this course and wean Terri from the feeding tube.
In short, in our view, Michael Schiavo's conduct does not pass what might be referred to as "the smell test," and his assertions are not sufficiently credible to support the lower court rulings in this case. The failure of the appellate courts to overturn this life-and-death error is deeply disturbing to people with disabilities. We would compare this case to a death penalty conviction in which the courts dotted all their "I's" and crossed all their "T's", but have been proven wrong, as the courts were in numerous cases here in Illinois. In such cases, the legislative and/or executive branches should step in to protect the individual's life. In the context of the death penalty, you obviously agree. In a press release yesterday, the ACLU of Florida "asked the Governor to suspend further executions during the commission's review of Florida's death penalty." That was the point of the third disability brief filed in the Schiavo case - the legislature and Governor needed to correct the errors of the judicial branch. We were deeply disappointed that you not only failed to defend Terri's due process right to be protected from a wrongful decision by a surrogate and the courts, but actually supported the surrogate trying to kill her.
In short, the issue is about the rights of an legally incapacitated individual and how to protect them. The disability rights groups supporting more stringent protections are pretty consistent in terms of the focus on the rights of the individual. The irrevocable taking of a life (remember, except for some bioethicists and their groupies, most in our society still feel that people under guardianship have rights.) is a serious business - and safeguarding the rights of the individuals whose lives are under discussion trump increased stress to those families affected or an increased burden on the system.
That last statement, btw, is similar to the one used by opponents of the death penalty who advocate for more, rather than fewer, procedural and legal safeguards in the legal system when dealing with capital cases.
Posts: 4344 | Registered: Mar 2003
| IP: Logged |
posted
Just out of curiosity, absent a living will, where should the line be drawn as to what life-saving measures should be used to keep someone alive? If we say that giving someone food and water should be done to keep someone alive, why then not say that other measures should be used to keep them alive? That is, doesn't the Schiavo case invalidate the ethical possibility of there being such a thing as a 'natural death'?
Posts: 13123 | Registered: Feb 2002
| IP: Logged |
quote:If we say that giving someone food and water should be done to keep someone alive, why then not say that other measures should be used to keep them alive?
We do say that other measures should be used to keep them alive. The general principle being applied is that, absent clear instructions from the patient, every attempt should be made to save the patient's life. Would you want any other rule to be in effect if you came in unconscious from a car accident?
Beyond those cases, there are still many cases where someone will be able to communicate their wishes at the time of treatment, which will of course allow for "natural death."
In other words, we set up a default rule: Medical professionals will try to save your life until you tell us not to.
any version that eventually passes muster in Florida or Congress will probably be limited in scope - limited to "food and water." It will also be limited to situations in which family members disagree and there is no specific advance directive/durable power of attorney.
That's my prediction, FWIW.
There hasn't been enough time to counter the years of advocacy by ethicists and extremely well-funded "end of life care" coalitions to dismantle the default you cited. And face it, this isn't just a "Democrat" problem - we're actually making some progress with the Dems who have a good understanding of disability rights issues.
There's a big problem with Republicans who are not so concerned about "sanctity of life" issues as they are "cost-cutting" issues. The other big issue today was an effort led by a handful of Republicans to join with Democrats to stave off some 15 billion dollars in Medicaid cuts.
From a secular, non-prolife angle, it kind of boils down to the question of "error." No system is error-free, but you can work to reduce error and influence the direction of error.
It used to be that many people probably lived longer than they would have wanted. The way things are working now, the direction of error has tilted the other way - we have eased the level of evidence required for ending a life in medical settings to the point where there are undoubtedly many people dying much sooner than they would want to - and due to the misdiagnosis issue with PVS - many of them conscious of what's happening to them.
It's a very complicated issue and deserves a full, open and inclusive debate of all the related issues.
I, for one, am still waiting for that to happen.
Posts: 4344 | Registered: Mar 2003
| IP: Logged |
posted
sndrake, I have to thank you for pointing me to the one thing I've liked that Dave Weldon has been involved in since he was elected to Congress. He served the district I used to live in back in FL, and frankly, having met the man, and written to him repeatedly, I couldn't think of a person I had more disagreement with on fundamentals.
He didn't seem interested in representing me, at any rate.
Since then, I have come to find out that he's a fairly public-spirited person and probably not as big a jerk as I made him out to be.
Be that as it may, I agree with him on this issue and don't think there's a solid scientific or medical basis for terminating lives without express consent of the individual.
Frankly, I'm not sure I'm even comfortable with this decision being in the hands of guardians. The default should be "reasonable treatment" in the absence of written instructions from the individual.
Sure, it costs more. But if we are going to affirm life, we have to start with the basic assumption that life exists until proven otherwise. IMHO. And, as your links make abundantly clear, that proof can be suspect too.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
posted
Stephen caught what I was asking, but I'm not sure you did, Dagonee. Keep in mind that someone can be kept 'alive' through artificial means almost indefinitely. I am asking, absent a living will and someone being able to ask for no special life saving measures, at what point should we as a society let someone die? This seems to me to be a fundamental question that hasn't been answered. As Stephen says, it's a very complicated issue. O.K., fine. Let's talk about it. What's the line?
Posts: 13123 | Registered: Feb 2002
| IP: Logged |
posted
I didn't quite get what you were getting at (I was reading too quickly), but that doesn't change my answer much. I'm sure there's some kind of continuum between the level* of treatment and how much surety there needs to be about the refusal. But I think noticable effects on the "amount" of refusal starts very, very close to the far end of that continuum.
In other words, absent prior directive, very, very aggressive treatment is warranted.
Dagonee *By level, I'm not exactly sure what's being measured, but food and hydration would be toward one end, and a 6-organ transplant at the other.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
The federal judge wouldn't be deciding if someone weren't attempting to kill the patient.
Prior directive could include authorizing someone else to make the decisions. But the authorization should be explicit.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
It seems to me there is a huge difference between someone coming from a car accident and someone who has been in a vegetative state for 10 years.
I don't have a DNR, because there's no obvious reason I might die in the near future, except some kind of accident. In that case I would definitely want to be resuscitated, at least until it was clear that I was brain-dead.
Until recently, I didn't have a living will either, but now I do.
I guess that means that under the new law, if I had gone into a vegetative state before I got the living will, some judge could have kept me alive. So it would be my fault that I hadn't made out the living will, and my punishment would be to be kept prisoner in a useless body. (assuming any semblance of consciousness)
Posts: 3735 | Registered: Mar 2002
| IP: Logged |
posted
Can someone post a link that has Terri's actual diagnosis when she first fell ill and subsequent follow-up diagnosis in the present? I'm trying to find it and I keep running across terms like 'severely brain damaged' which mean nothing.
Posts: 13123 | Registered: Feb 2002
| IP: Logged |
quote:I guess that means that under the new law, if I had gone into a vegetative state before I got the living will, some judge could have kept me alive.
Unless you've said something to someone reliable unough to provide clear and convincing evidence that you wanted to pulled off life support if you ever slipped into a "vegetative state," or formally assigned someone the power to make that decision for you in very specific and formal terms, that's what would happen to you now.
Or, rather, that's what the law says should happen to you now. As we can see from the Schiavo case, that's not what always happens.
If you are even in that situation, God forbid, a judge will enforce your living will. Prior to the existence of that living will, a judge ]i]should[/i], according to the existing law, err very heavily on the side of not killing people.
posted
Tom, are you suggesting that Terry's spouse -- the one who won't divorce her, even though he has two kids with another woman -- is reliable on this issue?
Posts: 32919 | Registered: Mar 2003
| IP: Logged |
posted
While looking into this, ran across this from here.
quote: If Drudge is correct and Terri herself will be subpoenaed, then it amounts to an open-ended stay for the removal of her feeding tube. If Terri is under subpoena, then the law states that nothing can be done to her which will prevent her testimony. That means the tube stays in until Congress calls her to testify.
Clever.
From the link provided within the above link came this.
A couple interesting points:
quote: Terri was in a coma for approximately one month, and then evolved into a vegetative state. Four board-certified neurologists in Florida consulting on her care (James H. Barnhill, Garcia J. Desousa, Thomas H. Harrison, and Jeffrey M. Karp) had repeatedly made a diagnosis of PVS over the years. The initial CT scan on the day of admission, February 25, 1990, was normal but further CT scans documented a progression of widespread cerebral hemisphere atrophy, eventually resulting in CT scans of 1996 and 2002 showing extreme atrophy (CT scans-1996, 2002: “diffuse encephalomalacia and infarction consistent with anoxia, hydrocephalus ex vacuo, neural stimulator present); prior to these most recent two CT scans, CT scans had been performed on February 25, 1990, February 27, 1990, and March 30, 1990, with an MRI scan on July 24, 1990.The two most recent EEG’s have demonstrated no electrical activity-on July 8, 2002: “no evidence of cerebral activity;” and October 4, 2002-“does not have any definite brain activity. However, most of the tracing is obscured by artifact from muscle and eye movement.” The clinical exams over the years were entirely consistent with diagnosis of permanent vegetative state secondary to hypoxic-ischemic encephalopathy. From the initial hospitalization in February, 1990, until the present time, there have been no significant changes in Terri’s neurological findings, and nothing in the medical records to suggest any disagreement whatsoever among Terri’s attending and consulting physicians about the underlying diagnosis and prognosis for recovery. A deep brain stimulator was placed in Terri’s brain on December 12, 1990 at request of the husband who flew with his wife to San Francisco for the procedure. This highly experimental form of medical treatment did not result in any clinical improvement in Terri’s condition. (14)
Flat EEG is pretty much 'brain dead', isn't it? (edit: And brain death is the one of the usual indicators of death used to, for instance, harvest organs from someone.)
quote: In Judge Greer’s order of February, 2000, he ruled that Terri Schiavo’s previous oral declarations, including “I don’t want to be kept alive on a machine,” were “reliable,” “credible,” and rose to “the level of clear and convincing evidence,” consistent with the substituted judgment standard adopted by the Florida supreme court in two separate decisions, John F Kennedy Memorial Hospital v Bludworth in 1984 and Browning in 1990. (19)
Additionally, Judge Greer found that, “beyond all doubt,” based on “overwhelming credible evidence” from the testimony of Dr. Vincent Gambone, Terri’s treating physician, and Dr. James Barnhill, a consulting neurologist, Terri was in a persistent vegetative state as defined by Florida statues Section 765.101. (20)
All this seems pretty legal (based on existing law) and straightforward from this link.
For what it's worth, Judge Greer is currently the subject of what I can only describe as a witch hunt to impeach him and remove him from the bench. As has been noted in other places, he is a Republican. I can only imagine the kind of carp that would be hitting the fan if he were a Democrat.
quote: Evidentiary trial, October 2002
After Judge Greer made this ruling stating unequivocally that Terri was in a persistent vegetative state and found clear and convincing evidence of Terri’s wishes in this situation, the Schindlers appealed to the Florida court of appeals. As part of their appeal, the Schindler family submitted a 113-second videotape, accompanied by multiple affidavits from various health care professionals saying patient was not in a vegetative state. Because of these videotapes, and notwithstanding the previous definitive ruling by the trial court judge on Terri’s neurological condition and chances for recovery, the court of appeals ordered the trial court to conduct an extremely thorough evidentiary hearing, the most complex evidentiary process in over three decades of landmark right to die court cases. Many of these affidavits contain the completely erroneous assertion that Terri’s ability to handle her own secretions was incompatible with the vegetative state. None of these medical professionals (including internists, rehabilitationists, speech pathologists, and others) who submitted these multiple sets of affidavits over the years at the behest of the Schindlers, had ever personally examined the patient, reviewed the medical records in any detail, considered the medical opinions of the consulting neurologists, nor looked at the CT scans or EEG’s. They instead relied on the brief videotapes showing Terri apparently interacting with her parents and noting that Terri could handle her own secretions. A few of these medical professionals did go to the bedside with the Schindler family to make observations about Terri’s apparent interactions with her family but none performed a complete neurological examination. All the videotapes released by the Schindlers to the media that I have seen are not only entirely consistent with the vegetative state but also, to the trained eye of any doctor experienced in the diagnosis of the vegetative state and related conditions, are completely compatible with the fact that Terri is in a vegetative state. For example, if one looks at Terri’s eyes closely during these videotapes, it is reasonably evident that she does not sustained visual pursuit, nor visual fixation, even when the mother is directly in front of the patient and Terri apparently “smiling” at her mother. Sustained visual pursuit (visual tracking) is almost always the cardinal feature distinguishing patients in a vegetative state from those with any degree of cognitive functioning. And the first sign of evolving from the vegetative state to a higher level of cognitive functioning, e.g. the minimally conscious state, is almost invariably the presence of sustained visual pursuit on a consistent, sustained, and reproducible basis, a physical finding that Terri Schiavo has never demonstrated.
Up until concluding point number 6, the whole link is very informative and I urge everyone to read it. While Dr. Cranford is a medical expert, I don't know that he is a legal expert and so his opinions on the constitutionality of the law can probably be ignored.
quote:Flat EEG is pretty much 'brain dead', isn't it?
Since she's breathing on her own she isn't "brain dead."
edit: I’ve been with patients and their families while doctors are testing weather or not the person is brain dead (for the purposes of organ donation). One of the last tests is to turn off the respirator. If there’s any sort of “gasp” – an attempt to draw a breath – the person is still considered alive.
I've been kind of hoping that some of our doctor types would weigh in on this. I'm interested in what they have to say after reviewing what medical facts they can find.
Posts: 13123 | Registered: Feb 2002
| IP: Logged |
quote:"Unless you've said something to someone reliable enough..."
Unlike, say, a spouse.
She was on this machine throughout the malpractice trial. I'm not willing to say he definitely was in this for the money. I am willing to say that his actions after the accident put serious doubt on his standing as a husband, so he his testimony should get no additional weight because of that. Further, he has never said she agreed with being starved to death. Prior to the Cruzan case, most people considered "live on a machine" to be respirators, not feeding tubes. Finally, a machine may or may not be necessary - there's some possibility her swallowing reflex could be rehabilitated.
To sum up, her husband, on these facts, is not reliable. Further, taking his testimony at face value, believing everything he said, does not amount to clear and convincing evidence that she would wish to be starved.
quote:Up until concluding point number 6, the whole link is very informative and I urge everyone to read it. While Dr. Cranford is a medical expert, I don't know that he is a legal expert and so his opinions on the constitutionality of the law can probably be ignored.
Cranford is also a professional "hit man" in terms of being an expert witness. He has a long track record of testifying in cases involving withdrawal of treatment - and he's always on the side of the party or parties wanting to withdraw or withhold treatment.
And that doesn't just apply to people allegedly in persistent vegetative state - he's supplied the same service in at least two cases involving people with severe brain damage (and no one was making a claim of PVS). It's interesting that his own personal zealotry in terms of making it easier and more common for people with brain damage to have their lives ended this way never gets much attention in the media.
Posts: 4344 | Registered: Mar 2003
| IP: Logged |
posted
A machine is usually something mechanical. http://en.wikipedia.org/wiki/Machine Feeding tubes are usually just that. A tube. Most of the times when I worked at the hospital we hung a bag at the other end and it was pretty much just live an IV bag. My point here is that most likely there isn’t anything artificial other then a piece of rubber going into the stomach.
Posts: 2845 | Registered: Oct 2003
| IP: Logged |
Printer-friendly view of this topic
![[Frown]](frown.gif)
It must really, really suck to be a judge in anything but a federal court nowadays, since any decision you make is going to have a law written specifically making your opinions irrelevant.![[Roll Eyes]](rolleyes.gif)
