posted
Spending money meant for her care on legal fees does not give him a monetary interest in the outcome. If he wanted the money, he would have kept it, not spent it.
But the legal issue at the heart of all this is who has the right to decide your fate when there is a difficult medical decision to be made and you are incapacitated, and the law is clear, spouses first, then adult children, then parents. Michael has the right to decide; he had it 16 years ago and he has it today. My opinion about what he decides is irrelevant because it is an issue personal to her and he is her next of kin. When you marry, you entrust your spouse with some of the greatest legal freedoms over your person possible, and their having another partner and kids outside the marriage 16 years after you become incapacitated will not negate this - bear this in mind when you marry, and get a living will, because even 16 years, another partner, and a few kids later, Michael is more closely related to his wife than her parents, the Florida Legislature, or the U.S. Congress are.
Incidentally, this http://www.dfw.com/mld/startelegram/news/state/11148869.htm happened in Texas today. Any of you who are against Ms. Schiavo's death even notice this, or was flipping past the front page not a worthwhile investment in your crusades in the realm of bioethics? (Yeah, I'm being snide.) A baby was taking off life support *against the parent's wishes*, people! It happened on the same day as this, and *this* is the case you worry about???
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quote:But the legal issue at the heart of all this is who has the right to decide your fate when there is a difficult medical decision to be made and you are incapacitated, and the law is clear, spouses first, then adult children, then parents. Michael has the right to decide;
Please cite a source for this.
SPOUSES DO NOT DECIDE. Spouses have the default guardianship to IMPLEMENT THE PATIENT'S WISHES. See long post on previous page (which doesn't prove the default guardianship, but does outline the duties of guardians, or "surrogate decision makers."
posted
OlavMah, I do not agree with you on th Schiavo case, but I do regarding that poor baby.
It is horrible, and it is murder, and I want to know why it is not being covered by every paper in the country?
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Yes, technically Michael must put himself in his wife's shoes and make what decision he believes she would make. I'm an attorney who specializes in estate planning, among other things. I write living wills, for goodness sake.
And to answer Rivka, it's because no one's been outraged by it. No one's even noticed, and it's not the media's job to notice for you.
posted
That op-ed piece does not answer the standards in outlined in the two cited Florida cases. It's incomplete at best, self-servingly inaccurate at best.
quote: it's not the media's job to notice for you.
Really. Tell me, what is the media's job, if not to note a landmark legal event with huge moral and legal consequences?
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How are we to be outraged about it when we'd never heard about it?
As to your claims versus Dag's, I agree with you that the spouse should have the right to make such decisions in the event that the person cannot make or express those wishes herself. And I don't look forward to a lawyer-war between you two over whether or not he does.
Yes, the thing in Texas (I didn't read the article, as it requires registration, but based on your synopsis of events) is ridiculously tragic and deplorable, and at least as worthy if not moreso of national outcry than the Schiavo case.
posted
The media did report on the infant's death. The case has been out there for months. Did anyone remark on it? Try and stop it? No. That's why it hasn't been reported on at greater length. The media didn't hide it from you; maybe next time this happens you might think to look into it? See if you could do some activism, alert a local group that might have an interest. The media didn't make Ms. Schiavo's case famous, the actions of the people fighting against it did. The media covered it because it was obvious that people cared to know about it.
And I realize the op-ed article is not legal precedent, Dagonee, but neither is the dicta in the cases you've been citing. Cherry picking dicta may work in a memo or a brief when your back's to the wall, but citing the holding is better.
Okay, I don't want to be over-snide. Let me try and soften that. By quoting out of the cases, you're showing that these arguments were indeed brought up in her cases. You're showing what are probably the best possible arguments that could have been made in the cases, and yet the courts have decided that Michael's decision stands.
posted
I've heard bugmenot referenced a number of times -- I don't know what it is. I presume it provides fake e-mails/passwords for news sites such as these, yes? While I think it's classless to require registration for the sites, I'm not sure I agree with that as a solution, either. It just feels wrong to me. (Please note, this is not any type of accusation toward anyone who uses it -- I realize that this is a completely subjective and irrational concern of mine, and I don't have a good reason for it myself, much less one for others.)
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That is, all their passwords have been created by someone (with real info? I don't know, and neither do I care) who is willing to share them with hoi polloi.
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quote:And I realize the op-ed article is not legal precedent, Dagonee, but neither is the dicta in the cases you've been citing. Cherry picking dicta may work in a memo or a brief when your back's to the wall, but citing the holding is better.
I was very careful NOT to cherry pick. If nothing else is clear, it's that there are possible fact patterns that would allow the Schindler's to succeed. So it's clear that the spouse is NOT the one who makes the final decision.
Second, the "substituted judgment" standard is based on a holding, not mere dicta. It's the standard to be used.
I am not claiming that the previous quotes mandate a decision against Michael in this case. I am saying it is far more complicated than "The spouse decides."
posted
If you feel uncomfortable with bugmenot, you can bypass a lot of registrations by searching for the url in google and clicking on google's url link.
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posted
The media I view doesn't necessarily include the media who reported this. Since I get most of my news here, this is the first I've heard of it.
And I'll readily admit that if I had heard about it, there's little I would have done beyond holding an opinion. I'm pretty politically apathetic, and that's partly from general laziness and partly from despair of anything positive resulting from my efforts. Facing that directly in myself might show a bit of hypocrisy, and I'm not sure I'm ready to face that, or to change anything about myself if I did. Not yet, anyway.
posted
He has turned down offers of millions of dollars to back away from his claim to be her guardian. It's really not about money.
It's about something else...control, not letting her parents win, or, perhaps, a real belief that Terri would've preferred death. In any event, he's not a reliable spokesperson because of the conflicts of interest.
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posted
I think everyone agrees it's complicated, Dag. You won't hear me complain about the number of cases that have arisen from this fact pattern, but boiling it down into simple terms is a lot more practical when you're dealing with clients who need to understand how to look out for their rights. Sure, I can rattle off to them all the case law and say that the substituted judgment standard applies, but what does that mean practically? It means that it's going to be your spouse's call, and yes, they are supposed to decide what you would decide in the situation, but it'll be hard to challenge them. In short, it's your spouse's call.
posted
Bob, perhaps it's about not being "the bad guy" in his own mind? If he backs down, he admits he has been wrong. If he lets himself be bought off, he admits he is after money.
If he stubbornly sticks to his guns, then at least to himself, he is the good guy.
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posted
rivka, I totally agree. I think he's entrenched and can't back down and one powerful motivator is his own self-image. He has a lot invested in this now.
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quote: It's about something else...control, not letting her parents win, or, perhaps, a real belief that Terri would've preferred death. In any event, he's not a reliable spokesperson because of the conflicts of interest.
I don't follow you, Bob. What conflicts of interest exist that would not exist for any spouse in a similar situation?
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posted
His current live in girlfriend and their two children? And his wish to marry her without having to think of himself as a guy who would divorce/abandon his injured wife?
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I'd like more information than what's presented here. By what rationale did the doctors decide there was no hope? If the baby was alive on a respirator, was that only possible for a short amount of time? As the child grew, would it be impossible for the too-small lungs to supply enough oxygen to support the new tissue? Would the child die painfully of asphyxiation if they didn't um...asphyxiate it now?
This just seems really bizarre to me. But I'm not familiar at all with this condition or even neonatal development and why it'd be better to have the child die now versus give it more time and see what happened.
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posted
Tom...what dkw said. (see she's answering for me already!)
I think Michael has created some factors in his life that make it reasonable to question his ability to think clearly, rationally, and with Terri's true wishes at the fore-front of his decision-making.
I will NOT call him a liar or evil. But I do think that he has issues that are self-created and provide powerful incentives to end Terri's life.
I would actually much prefer a disinterested 3rd party be charged with this decision on her behalf. That's sort of what the court is supposed to be. I honestly think Judge Greer has done an admirable job under very tough circumstances and the people who are castigating him (and even threatening him) worry me. He has a duty to uphold the law. His decisions have be upheld upon appeal. He's doing everything the law allows him to do. Sure, there's room for interpretation by a judge, but he's also got to do things that aren't going to be undone later, if he can.
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quote: I would actually much prefer a disinterested 3rd party be charged with this decision on her behalf. That's sort of what the court is supposed to be.
That's sort of what the court was. But when the court came up with the "wrong" answer -- for a given value of "wrong" -- it gave the federal government yet another thing to second-guess.
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quote:That's sort of what the court was. But when the court came up with the "wrong" answer -- for a given value of "wrong" -- it gave the federal government yet another thing to second-guess.
I personally don't think Judge Greer did the wrong thing. My concern is whether we need to change our laws and societal standards, not this Judge or his decision.
But I understand that it is human nature to work from specific cases and strike in the heat of passion, not take time and make a considered choice.
But then, I also believe that all of this will matter very little to Terri Schiavo. If I really thought she was "there," I'd be very concerned about doing something RIGHT NOW too.
As it is, I just think she's being used by everyone to make a point about some bigger issues that we still don't seem ready to address in any sensible or sensitive fashion.
And that means that we'll have more of these "cases."
posted
So that means she is a "witness" now, right? And they can put the tube back in?
Man, I am really reeling in confusion over how I feel about this now. I do not want her to starve to death, but I do not like the idea of Congress deciding if she lives or dies.
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quote:I personally don't think Judge Greer did the wrong thing.
I do, precisely because the only way the evidence can be presented is "clear and convincing" is for him to have a preconceived notion of the value of her life in its current condition. The three witnesses who only heard casual conversation from her, the potential conflict of interest of the husband, and the lack of evidence that she even meant nutrition support when she made her remarks all combine to make the evidence less than convincing unless one starts from the notion that "no one would want to live like this."
posted
Out of interest, can the court require someone to keep someone else on medical care even after that care becomes unaffordable?
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posted
In most states, yes. For example, the futile care law in Texas (which I find reprehensible) does not allow cost considerations or ability to pay to be taken into account by the court. Of course, I'm sure cost considerations and ability to pay are involved in the decision to seek to remove support.
posted
Or on the grounds that they didn't properly examine federal constitutional and statutory protections. Which wouldn't make them stupid.
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posted
I don't have a lot of time today, but one of the Senators putting his weight behind this bill and also wanting to look at the bigger picture is Tom Harkin, who has always been on the forefront of disability rights issues. He appeared with Martinez and Santorum at a press conference on Saturday and his remarks there went mostly unnoticed by the press.
“I have long been an advocate for the rights of people with disabilities. Many in that community are keenly aware of the risk of incapacitation. In such cases, I believe that every precaution should be taken to learn and respect their desires regarding the removal of life supports.
“Over the last week, I have been working hard, and in good faith with Senator Mel Martinez (R-FL), Senator Rick Santorum (R-PA), and others to come up with legislation that would allow federal review of the Terri Schiavo case. Yesterday afternoon, we came up with bipartisan measure that did just that and many of my Senate Republican and Democratic colleagues deserve praise for their hard and swift work.
“Unfortunately, the House Republican Leadership refused to take up the bill before sending members home for a two week vacation. There is no excuse for stalling a matter of such an urgent and life threatening nature. They are solely responsible for the consequences Ms. Schiavo and her family now face, as well as for today’s unfortunate events. Congressional action is this area should be based on respect for the wishes and dignity of those who are incapacitated.
“It is my belief that people with disabilities and those who are incapacitated deserve the utmost dignity and respect. I plan to continue to work with my Senate colleagues on both sides of the aisle to give cases like this an opportunity for further review in federal courts.”
--30--
Here's an excerpt from statements he made at the press conference (sorry, no URL, a friend transcribed them after taping CSPAN)
quote: Harkin: "I said on the floor the other day, 'While I want to make sure this specific case is reviewed de novo, there is a broader question here.' This case has gotten a lot of publicity obviously; but there are a lot of people in the shadows, all over this country, who are incapacitated because of a disability, and many times there is no one to speak for them, and it is hard to determine what their wishes really are or were. So I think there ought to be a broader type of a proceeding that would apply to people in similar circumstances who are incapacitated. Where there is a genuine dispute as to what the desires of the incapacitated person really are, then there ought to be at the end some review by a federal court outside of state jurisdiction. You might say, 'Why a federal court?' State courts vary in their evidentiary proceedings and in their process -- fifty different ones. Iowa differes from Florida or Missouri. So sometimes a person might get caught in a certain evidentiary proceeding, in a state court, that does not really tell the whole story. Every review of that, up through the state courts, is basically on the procedure, not upon the first facts. In a case like this, where someone is incapacitated and their life support can be taken away, it seems to me that it is appropriate -- where there is a dispute, as there is in this case -- that a federal court come in, like we do in habeas corpus situations, and review it and make another determination. And so I’m hopefull that we will come back in this Congress and we will develop some legislation that will address this issue.
"In all my work over the last 25 years in disability, I had not thought about this -- I mean, it just hadn’t come up. But the more I looked at the Schiavo case, the more I thought, 'Wait a minute. There are a lot of people in similar situations -- maybe not in her specific situation -- but because of a disability cannot express themselves or cannot in any way make their desires known. So it seems to me like this would be an appropriate area for us to take a look at."
And, of course, there's more in the way of press releases, links to articles, etc., at the NDY website.
quote:Did not the federal courts refuse to hear the case before?
Yes, but I think (based on sketchy press accounts) the refusals were largely on procedural grounds.
Habeas proceedings will carry a new fact-finding phase as welll as the ability to bring up a variety of federal issues in a collateral attack on the state court decision.
quote:State courts vary in their evidentiary proceedings and in their process -- fifty different ones. Iowa differes from Florida or Missouri. So sometimes a person might get caught in a certain evidentiary proceeding, in a state court, that does not really tell the whole story.
So one standard evidentiary procedure is better for any matter of real importance? Wow. You'd almost think that state courts shouldn't even bother.
His entire rationale is that state courts do things differently in each state. This prompts, from me, a loud "duh."
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It takes a look at the perceived hypocrisy at some of the politicians in this case, and it's (to me) interesting reading.
"Some of Schiavo's care is paid for by the Medicaid system. Yet cutting state Medicaid spending and shifting the program and its decision-making into private managed-care companies are the hallmarks of Gov. Jeb Bush's plans for Medicaid reform. And the same week the U.S. House voted for Schiavo legislation, it also voted for a budget with $20 billion in "savings" from Medicaid.
"You might need to declare bankruptcy to free up money for such care, but the Senate recently voted to make to make that harder to do as well.
"Even as we see politicians jump to the microphone on the "Save Terri" sound truck, they are making it less likely that any patient in the future will be able to pay for the care they say Schiavo and others must have even over the objections of family."
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posted
I think the important question here is, can we vote to have Michael Jackson's feeding tube removed?
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posted
From what I read, the Federal judge wasn't too impressed with Terri's parents' arguments. He heard their arguments today but didn't tell them when he might be ready to render a verdict.
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posted
I personally think that the plug should be pulled. I don't think that she should be starved to death but, if your braindead, unconscious and have no chance of recovery that the plug should be pulled.
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posted
Steve, I've followed your comments on this case for sometime but I am still not clear on one thing. When a critical medical decision must be made for a disabled individual who is incapacitated and unable to communicate their desires, who do you think should make that decision? The doctors, the government, medicare, HMOs, the community, the family? Who?
If you are maintaining that severly disabled individuals should be given every available form of medical care unless they have left a living will then you are suggesting a standard that is not available to any one in our society. If I am ill, I only have access to the medical care that my insurance will approve or I can pay for myself. My disabled sister in-law, who is mentally competent to make decisions for herself, only has access to the medical care approved by medicaid, which at times seems woefully inadequate.
A line must be drawn somewhere for every individual. Who should decide where the line is to be drawn?
I know that I would far rather have my husband making the decision about my medical care that an accountant at an HMO, a politician, a lawyer or even a doctor. I know who would have more respect for me than all others
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posted
What I can't wrap my brain around is the about face Repubs have done on state's rights.
And Bush. I mean, he signed that bill in Texas where hospitals could remove life support of indigent patients even if the families protest. They just did it to some kid this month, didn't they?
I know that Bush is not who I'd like in the White House, but what I can't understand is how the people who do want him there can live with this hypocrisy.
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posted
Honestly, I'd rather have a somewhat-hypocritical-on-a-complex-and-sensitive-issue President who wasn't nearly as deft politically (and particularly not as efficient at exploiting and manipulating the system) over the current one. I notice you've stayed out of, for instance, the thread where it turns out the Bush administration intentionally mislead people about NK's sales of nuclear material.
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posted
Oh, and then we'd have the far superior situation of a split between executive and legislative branches.
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posted
How does it fit with family values to decide that the federal government rather than families should make such decisions?
How does the "defense of marriage" fit with eliminating a husband's status as next of kin?
How does it fit the "small government" ideal, if the government is allowed to make these decisions for individuals?
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quote:I notice you've stayed out of, for instance, the thread where it turns out the Bush administration intentionally mislead people about NK's sales of nuclear material.
Fugu, I stay out of a lot of threads. That's really not fair.
quote:How does it fit with family values to decide that the federal government rather than families should make such decisions?
The government has a review role in most matters of life and death.
quote:How does the "defense of marriage" fit with eliminating a husband's status as next of kin?
The husband does not have the right to decide for Teri. He is the default surrogate decision maker whose responsibility is to determine what Teri would have chosen. He is required, even in an informal setting, to have clear and concincing evidence that a decision for death would be made, and his determination is subject to review. This is under current Florida law. Next of kin status does not give anyone the right to decide to starve someone to death.
quote:How does it fit the "small government" ideal, if the government is allowed to make these decisions for individuals?
In many ways, requiring explicit written instructions with a default of life in their absense is a "smaller government" choice, because it makes a clear rule and does not involve the court in attempting to decide what someone would have wanted.
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