http://www.chicagotribune.com/news/local/chi-0310120378oct12,1,1877208.story?coll=chi-news-hed

Parents or husband: Who decides?
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Courts to choose victor in battle over woman's life

By Patrick Kampert
Tribune staff reporter

October 12, 2003

PINELLAS PARK, Fla. -- Like any facility planned for the comfort
of dying patients and their families, Hospice House Woodside
seems like a welcoming place, from the soothing sight and
sound of its outdoor fountain to the warmth of its brick facade.

People surrendering to the inevitability of death typically don't
linger long at places like this--the median hospice stay for a
patient in the U.S. is 15.6 days. But Terri Schiavo, 39, the
central figure in a family tug of war over the quality of her life and
her right to die, has lived at Woodside since April 2000.

A feeding tube provides her with nutrition and hydration, but she
is not on a ventilator and hasn't been since she went into cardiac
arrest and suffered brain damage in 1990.

Whether her survival is due simply to medical technology or to
a strong will to live has been debated in court for years by
members of her family. But one fact is beyond dispute: After
a judge dismissed a federal case Friday in Tampa, saying he
had no jurisdiction, Schiavo's feeding tube is scheduled to be
shut off Wednesday.

Bob and Mary Schindler say they know their daughter is not in
a persistent vegetative state. They say they have received
scores of e-mails from families in similar situations--even people
who have recovered to some degree from conditions similar to
their daughter's. During a visit a week ago, Bob Schindler said,
he was playing a tape of Luciano Pavarotti for his daughter.
When he turned off the tape, he said, she became "fussy."

"Do you want me to turn the tape back on?" he asked. She
responded, he said, with a guttural, barely distinguishable
"Yeah." He resumed the tape and said his daughter quieted down.

"I give her words of encouragement," he explained. "I believe that if
she wanted to die she would have been dead a long time ago. She
has a will to live and I reinforce that with her; we all do. I kid her.
I tell her, `You're like an old car. You just need some motor work.'
She's in there."

`A very big step forward'

George Felos, a veteran of right-to-die cases, is the attorney for
Michael Schiavo, Terri's husband and legal guardian, who has
sought to have artificial feeding stopped since 1998. While he
acknowledged that the Schindlers have appeals left--including
a probable bid early this week in state appellate court to delay
the tube removal--Felos said U.S. District Judge Richard Lazzara's
ruling Friday was a major victory in hastening what he says are
Terri Schiavo's end-of-life wishes.

"I think the federal judge's decision was a very big step forward
toward the conclusion of the case," he said. "As he mentioned
in his decision, announced orally from the bench [Friday], it was
a very difficult, emotional case and that he grappled with his
own feelings about the issues in this case. But he did his duty
as a judicial officer by following the law."

Pat Anderson, the Schindlers' attorney, noted that time seems
to be running out.

"We may be looking at Terri's last few days on Earth," she said.
"But Terri is a fighter. Terri fought through a medical crisis over
Labor Day weekend that would have killed much healthier people
than her. As long as she's alive, I'll keep trying to keep her alive."

Another case may be winding down in state court as well. Last
week Florida Circuit Court Judge George Greer denied an appeal
by the Schindlers to delay removal of the feeding tube until
doctors determine if swallowing therapy would enable Schiavo
to eat and drink normally. It was the latest in a string of defeats
for the Schindlers.

"There's something understandable about why state courts have
sided repeatedly with Schiavo's husband," said Marc Spindelman,
an assistant professor of law at Ohio State University's Moritz
College of Law and an expert on death and dying issues. "We
want to respect patients' choices. Given the alternative of allowing
a chosen family member to make a medical decision or a
biological family member, we're going to choose the chosen
family member."

The case has attracted the attention of Florida Gov. Jeb Bush,
who has received more than 40,000 e-mails asking him to save
Schiavo's life.

Last Monday, after Florida Atty. Gen. Charlie Crist filed a brief
defending the constitutionality of state laws applied to the case,
Bush's lawyers unexpectedly filed a brief in federal court
supporting the parents in their bid to obtain therapy for their
daughter and have an independent guardian named to look
out for her interests.

The brief noted that a persistent vegetative state often is misdiagnosed.

Deborah Bushnell, one of Michael Schiavo's lawyers, said she didn't
think the federal court would be swayed.

"The law is quite clear," she said. "From the research we've done,
the federal court does not have jurisdiction in this case. This is an
end run around the state court."

Cases about life and death are inevitably intertwined with emotions,
and the life of Terri Schiavo, at least since 1990, has had more
heart-wrenching moments and legal histrionics than a TV melodrama.

Witnesses have testified that Terri Schiavo was considering
a divorce shortly before her mysterious collapse; the Schindlers
have suggested Michael Schiavo abused their daughter and
may have attempted to strangle her on the night her heart stopped
and her brain was deprived of oxygen for 10 minutes. Like the
Schindlers, their doctors contend Terri Schiavo is not in a persistent
vegetative state, as the courts have ruled.

Three of Schiavo's former nursing-home aides have filed affidavits
that Schiavo was speaking rudimentary words and swallowing
pudding and Jell-O in the mid-1990s. One of them, registered
nurse Carla Iyer, said in her affidavit that Michael Schiavo made
statements--including, "When is that bitch going to die?"--during
his visits to the nursing home.

Michael Schiavo declined interview requests through his attorney.
Schiavo and his fiance, who have lived together since the mid-'90s,
have one child and are expecting another.

Terri Schiavo did not leave written directives, such as a living will. In
some states, that might be enough to keep her alive.

But the Florida case has been built on testimony from Michael
Schiavo, his brother and sister-in-law that Terri Schiavo made
casual statements to them that she would not want artificial life
support in the event of a medical calamity.

Yet during a 1992 medical malpractice trial, Michael Schiavo did
not bring up his wife's end-of-life wishes and pledged to use the
money he was seeking for Terri Schiavo's care and rehabilitation.

Michael Schiavo won the suit. After costs, Terri Schiavo's
guardianship netted $700,000 and Michael Schiavo $300,000.
Most of the $700,000 has been used for legal fees as Schiavo
has pressed the case to fulfill what he says are his wife's wishes.
According to Felos, Michael Schiavo has not used any of his own
$300,000 for legal costs.

Because of the accusations against the husband, Ohio State's
Spindelman said the case is a complicated one unlikely to advance
the right-to-die cause.

"This is a bad case for right-to-die proponents," he said, "because
they can't claim there's clear and unequivocal evidence of what Terri
Schiavo's wishes would be under circumstances like these. It looks
less like a case about right-to-die than a case about who gets to
decide the circumstances under which some other person will
live or die."

End-of-Life Choices, formerly the Hemlock Society, has stayed out
of the case. But numerous disability groups and two people who
once were diagnosed as being in a vegetative state also filed a
friend-of-the-court brief in support of the Schindlers. The groups
include the National Spinal Cord Injury Association, the Center
on Human Policy at Syracuse University and Not Dead Yet, an
advocacy group for disabled people based in Forest Park, Ill.

Diane Coleman, president of Not Dead Yet, said disabled people
fear their rights will be endangered if the state court decision stands.

"The issue here for disabled people, and for stroke victims, and
for people with dementia and Alzheimer's, is how easy is it
going to be for a relative or a health-care provider to deny you
life-sustaining treatments? What kind of proof are they going
to have to follow?"

Felos expressed confidence that Michael Schiavo ultimately
will prevail.

"The federal court complaint is a repackaging and dressed-up
version of the same lies and misrepresentations the Schindlers
have been presenting to the state court for years," he said.

Ironically, at the beginning of the case in 1998, it was Felos
who requested an independent guardian for Terri Schiavo.

Attorney Richard Pearse was appointed, and he issued a report
to Judge Bruce Boyer, who then was handling the case. In the
report, Pearse said Michael Schiavo was not a credible witness
to his wife's end-of-life wishes because he waited several years
before coming forward with the claim that she wanted to die.
Pearse also noted that Michael Schiavo would benefit financially
from her death and be able to move on with his life.

After the report was issued, Felos attacked it and Pearse, and
asked that Pearse be removed. Boyer complied.

Her own lawyer

Boyer never replaced Pearse. And Pearse said he believes a major
opportunity was missed because Terri Schiavo has not had her
own lawyer in the five years of litigation that have followed.

"One of the interesting and ironic aspects of this case is that all
of the parties have portrayed themselves as representing her
interests," he said. "It's always desirable that a person in Terri's
position have an independent representative who has no particular
interest in the case other than Terri."

Anderson, who began representing the Schindlers in 2001, said the
failure to replace Pearse has hindered the parents' case because
Michael Schiavo, as Terri's legal guardian, controls her medical
care and even her visitors.

"The parents' hands are tied in terms of what evidence they could
present," she said, "because they didn't have access to Terri.
They're not even permitted to know if she's been running a temperature.
If a guardian ad litem had been appointed, it would have been a
different story."