Terri Schiavo’s Case: The Real Lesson

Terri Schiavo’s Case: The Real Lesson

On March 31 2005, Terri Schiavo died, not of her disability, not because of lack of treatment, but because water was withheld. Hers was not a “right to die” case but one of euthanasia via inaction. This was because the term “persistent vegetative sate” (which in Schaivo’s case was a disputed diagnosis) is inherently misleading. House plants don’t have beating hearts and don’t attempt to vocalize.

Before the feeding tube was removed, Terri did.

Terri, like most of us, lacked a living will. Instead, she had an estranged husband who gave up on her.

Unlike one of my former office’s death penalty clients, her death was placed in the hands of a single judge relying on selected hearsay evidence from a biased source. The rigidity of Florida law and the unwillingness of other judges to intervene effectively in the case left the matter much as it started: in her husband’s hands.

Terri Schaivo’s spouse was her husband in name only.

The stark truth is that we cannot know whether Mrs. Schaivo would have or would not have wanted her feeding tube removed under these circumstances. Frankly, on all the evidence, we should doubt it.

We can be certain of several things: that no one ever explained the choices she would face; that no one warned her against the trauma of death by dehydration; and that no one warned her against entrusting her ultimate fate to a husband who would move on with his life after being awarded a large medical malpractice settlement intended for her benefit.

Most living wills stipulate three preconditions that were just not true in Mrs. Schiavo’s situation– not with without doing violence to the common sense meaning of the terms: (a) that she had a terminal illness (b) that she was in a coma or persistent vegetative state (c) that there were specific instructions about how treatment is to be withheld.

A living will normally stipulates that if food is to be withheld, the victim (sorry, patient) will continue to be hydrated. After all, death via dehydration is so cruel that we don’t allow it to be done our pets. For that matter, we’re not permitted to starve our cats, dogs, or horses to death either.

To most of her caretakers, Terri presented as an innocent, benign person, one functioning on the level of a small infant, unable to feed herself. It appeared to them that she was aware of being visited and helped and that she appreciated the attention. It seemed she was able to receive love and to love in return. Except by her putative husband, whose de facto divorce led to the formation of an entirely new family.

The problem with living wills is the slipperiness of the English language and the occasional untrustworthiness of those given the power to kill you (sorry, permit you to die in dignity). When we are confronted by the real life dilemma, all legal prose collapses under the weight of reality.

Because reality always has a face.

The only safe test for euthanasia through inaction, absent a binding contrary stipulation, is brain death. The only safe test for a living will is whether the persons to whom you entrust this final choice will still love you when you most need them to. The law (or your living will) must allow for changed circumstances in this one vital respect or Terri’s fate will be a common one. Husbands, wives and “close friends” are subject to change.

JBG

Jay Gaskill, an Alameda attorney and consultant, was county Public Defender from 1989 to 1999.

This piece was first posted on “The Policy Think Site”

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Copyright © 2005 by Jay B. Gaskill

For permission to copy, publish, distribute or print, contact:

Jay B. Gaskill, attorney at law, via e mail: response@jaygaskill.com

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