Fighting for Dear Life (28 page)

The
New York Times
editors reported that ‘‘the medical investigation disproved paranoid theories that Michael Schiavo had injured his wife.'' They claimed that the report ‘‘found no evidence of neglect, abuse, strangulation or other trauma.''

No surprise there.

An autopsy is incapable of demonstrating whether Terri experienced ‘‘neglect'' during her lifetime. But it is a matter of record, as I've said elsewhere, that Terri was isolated and warehoused at a hospice, cut off from human companionship. Unlike the open-door policy that other hospice patients enjoy, she wasn't permitted out of her room. All therapy had been denied since the early 1990s. She couldn't attend her own birthday party.

I'd say that qualifies as neglect.

As for some of the media's haste to absolve Michael from any possible responsibility for Terri's collapse—specifically the so-called ‘‘paranoid'' theory of strangulation—again, the editors of this prominent newspaper overlooked what the medical examiner actually said in his report:

Autopsy examination of her neck structures 15 years after her initial collapse did not detect any signs of remote trauma, but,
with such a delay, the exam was unlikely to show any residual neck
findings
. (emphasis added)

Put another way, Dr. Thogmartin could not conclusively resolve the issue of strangulation. Too much time had passed. If anything, the autopsy opened the door to more questions about what happened that night now that we know Terri didn't have a heart attack nor did she suffer from bulimia, as was repeatedly asserted.

The inability of the autopsy to answer other key questions points to its limitations. Autopsies can only reveal structural features at the time of death. An autopsy could certainly not make a fine distinction between a minimally conscious and a persistent vegetative state—and Dr. Thogmartin did not claim to have done so. That determination could only have been made on a living human being.

TALKING HEADS

Television coverage of the IME report was equally marred by bias.

Case in point: With a touch of his signature smugness, Keith Olbermann proclaimed that Michael Schiavo was ‘‘vindicated today by the medical examiner in Pinellas County, Florida, and a neuropathologist brought in to consult on that autopsy. And if you do not believe those doctors, you have to be willing to believe that they would be willing to lose their licenses and jobs if they were proved to be incorrect.''

Tossing a jab at the Schindlers, he quipped, ‘‘Terri Schiavo's parents apparently believe something like that.''
3
Olbermann then introduced Jay Wolfson, Terri's former court-appointed guardian
ad litem
in 2003. While I'm sure Mr. Wolfson meant well, his comments were often far from objective—or even factually accurate. His mixture of personal editorial and misstatements went unchallenged by Olbermann.

For example, Mr. Wolfson asserted, ‘‘What this report does is it helps us, I think, say we've learned as much as we can learn. We've learned as much about this tragic case, clinically, medically, scientifically, and legally, and it closes the door.''

It closes the door? Really?

Let me direct you to the concluding statement by the medical examiner on page nine of the autopsy report. Dr. Thogmartin wrote:

It is the policy of this office that no case is ever closed and that all determinations are to be reconsidered upon receipt of credible new information. In addition to fading memories, the 15-year survival of Mrs. Schiavo after her collapse resulted in the creation of a voluminous number of documents many of which were lost or discarded over the years. Receipt of additional information that clarifies outstanding issues may or shall cause an amendment of her cause and manner of death.

Clearly, the door has been left wide open. Wolfson went on to misstate:

This autopsy did not have to be performed. Michael agreed to have it performed. . . . By allowing it to be done, I think Michael has helped all of us to put some closure on this.

Perhaps Mr. Wolfson was parroting Michael's attorney, George Felos. In a hastily organized press briefing the day before Terri died, Mr. Felos claimed that Michael had requested an autopsy because ‘‘he believes it's important to have the public know the full and massive extent of the damage to Mrs. Schiavo's brain.''
4
But Bill Pellan, the director of investigations for the medical examiner's office, dismissed this as grandstanding. Pellan said, ‘‘We have determined to be involved because of the statutes . . . not because Michael Schiavo wants us involved.''
5
He was referring to Florida Statute 406.11, which requires an autopsy in the case of cremation or if someone dies in an ‘‘unusual circumstance.'' Terri's death most certainly fit that classification.

Let me ask you something.

If Michael wanted the public to know ‘‘the full and massive'' damage of his wife's brain, why wait until she was dead? He could have more accurately determined this information while she was alive through modern functional brain studies. The Schindlers had repeatedly requested that Terri be reexamined in 2005 before the court's order was carried out. Terri had not been examined since 2002. Functional MRIs, SPECT imaging scans, and other evaluations, neurologists tell me, could have provided more objective information to confirm Terri's awareness of external stimuli. Furthermore, it's confusing how, on one hand, Michael denied Terri visitors, trips to the mall, or appearances in court supposedly because he was trying to protect her privacy. But suddenly he wanted ‘‘the public'' to know how damaged she was after her death.

And the press went along for the ride.

In my view, what the IME reported doesn't erase the moral shame of what happened. The quality of a person's life and the hearsay testimony of a spouse—who has moved on to another committed relationship— regarding end-of-life medical treatment wishes should never again become the basis for which life can be ended. Ever.

CHAPTER NINETEEN

THE $64,000 QUESTION

Why did Florida put Terri Schiavo to death? Because that
was the demand of a husband who refused to divorce her and
denied her medical care, while he lived with another woman. Michael Schiavo is the ACLU poster boy for family values.

—P
ATRICK
J. B
UCHANAN
1

A
t the outset I mentioned the Schindlers' case hinged upon two simple legal questions:

AWhat was Terri's medical condition?

What were Terri's wishes about ending her life in the case of a medical tragedy?

As to the first question, the court ruled Terri was in a persistent vegetative state (PVS); regarding the second question, Florida law allowed the court to rely upon hearsay evidence to conclude Terri would want to suffer a horrific death rather than live as a disabled person who was loved and cared for by her family. As we saw earlier, Terri left no written instructions expressing her own wishes.

Understandably, when the independent medical examiner, Dr. Thogmartin, filed his autopsy findings, the $64,000 question on everybody's mind was this: Had Terri been in a persistent vegetative state as the court had ruled? Could she feel pain? Could she think? Did Terri really recognize her mother and cry when Mary left the room? Or was Judge Greer right when he insisted that ‘‘all of the credible medical evidence this court has received over the last five years''
2
pointed to her being cognitively unresponsive?

Dr. Thogmartin began by making it clear that ‘‘PVS is a clinical diagnosis arrived at through physical examination of
living patients
'' (emphasis added). Terri was dead. How, then, could Dr. Thogmartin make a definitive postmortem determination as to whether or not Terri was in PVS? He couldn't . . . and didn't.

You might want to read that again.

The IME did
not
declare Terri to be PVS.

About as close as he got was to rely upon the findings of consulting neuropathologist, Dr. Stephen J. Nelson. Let's not forget that Dr. Nelson never saw Terri when she was alive either. Like Dr. Thogmartin, he didn't have the benefit of looking at a ‘‘living patient.'' He only had a severely dehydrated body and brain to work with.

In Dr. Nelson's view, ‘‘There's nothing in her autopsy report . . . that is inconsistent with persistent vegetative state.''
3
Which is, frankly, like saying, ‘‘Maybe she was, but it's impossible to determine that by an autopsy.'' He also didn't rule out the possibility that Terri might have been in a minimally conscious state (MCS) instead of in PVS. You see, there are no reliable studies on what the PVS brain of a corpse looks like when compared with that of a deceased MCS brain.

I was told by one neurologist that the neuropathological features of MCS are not even known as yet. It is, therefore, impossible to differentiate between a brain that supports minimal consciousness from one that does not through an autopsy. In fact, I am told, the same neurological indications might support different levels of consiousness. Dr. Nelson never claimed to compare Terri's brain with the brain of a deceased MCS patient. The news media, however, eager to justify Terri's death, did not consult knowledgeable neurologists about these subtleties.

Here's my point.

Although it was widely reported that the pathological findings were consistent with PVS, the news media did not report the equally plausible conclusion that the findings could have been equally consistent with MCS—a condition from which patients have improved.

Nevertheless, George Felos was quick to put the best spin on the IME's findings. With the IME report in hand, Mr. Felos trumpeted the news that ‘‘in the words of the medical examiners, the results are very consistent with a persistent vegetative state.''
4
Mr. Felos got as much mileage as possible out of this nonconclusion in order to lead the public down the road toward a belief that Terri was indeed PVS. I'm not surprised that Mr. Felos placed his spin on the IME's findings. According to his view, Terri had as much life as a ‘‘houseplant''—a term he had previously used to characterize Terri.

Here's what's troubling.

The medical examiner was not in any position to confirm or deny whether Terri was in PVS because he never examined her as a
living
patient
. PVS is a clinical diagnosis that must be made on a living patient, not a diagnosis that can be based on autopsy findings.

Nevertheless, the media dutifully reported the PVS verdict with little regard for these facts.

CHAPTER TWENTY

A LIFE WORTH LIVING

By 2040, it may be that only a rump of hard-core, know-nothing
religious fundamentalists will defend the view that
ever y human life, from conception to death, is sacrosanct.

—P
ETER
S
INGER
, P
RINCETON
U
NIVERSITY
P
ROFESSOR
1

M
eet Clinton McCurdy.

At age thirteen, Clinton doesn't speak. He can't play ball or ride bicycles with his friends. He can't walk. He can't go to school. He can't dress or feed himself. For the last eleven years, Clinton has been confined to his bed or his wheelchair. You see, when Clinton was twenty-three months old, he fell into a swimming pool and drowned. He was underwater for approximately seven to ten minutes before being pulled out. CPR was performed on him immediately and his heart began to beat again. Being deprived of oxygen for several minutes caused Clinton to suffer severe brain damage, much like Terri Schiavo.

His parents, Tim and Betty McCurdy, brought Clinton with them to hear me speak in Hammond, Indiana. After I had finished my comments, they pushed him in his wheelchair to the lobby of the auditorium to meet me. As we visited, I learned about his injury and the details of his care. I was struck by the similarities to Terri: He was not hooked up to machines nor was he in a coma. All he needed was help with food and water, something that, even in Florida before the new end-of-life legislation was passed in the late 1990s, had always been considered ordinary care, not life support. His parents showed me how Clinton was fed through a small feeding tube inserted under his shirt.

There was one primary difference, however.

I could tell that young Clinton was far less responsive than Terri. For her part, Terri smiled, kissed her parents, cried, and could purposefully interact and respond to external stimuli. But as Tim and Betty shared their story, Clinton didn't respond verbally, nor did he pay any attention at all to our conversation—at least not outwardly. Not wanting to be rude, I bent down to speak with him. As I started to engage him, Betty gently placed a hand on my arm and said, ‘‘David, don't worry. He doesn't even know who
we
are.''

After allowing her comment to sink in, I told them that they were remarkable parents for loving their boy and for not giving up on him. I asked them, ‘‘Has it been tough?'' Betty said, ‘‘Sure. He has to wear a diaper and we have to bathe and dress him. But Clinton still gives us joy. He may not communicate, but we're still his parents and he's still a part of our family.''

His father, Tim, added, ‘‘Yes, it's been very difficult, but we made a decision to love and care for Clinton and we will stick by that decision.'' At that point Tim said something that shocked me. He said, ‘‘David, we made the same decision that Michael Schiavo made.'' For a moment, I thought Tim was confused. I thought he meant to say that they had made the same decision as Bob and Mary Schindler. After all, it was the Schindlers who wanted to save Terri's life while Michael was working to end it.

‘‘No,'' Tim assured me, ‘‘we made the same decision Michael Schiavo did—at first.'' When I asked what he meant by that, he said, ‘‘The night our son was rushed to the hospital as a twenty-three-month-old, we were told that Clinton had suffered a traumatic brain injury. The doctor informed us, ‘I think he's going to be severely injured; I'm sorry, he's too far gone. Do you want us to try to save him?'''