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Terri Schiavo Case

Lawrence Frolik
Law Professor, University of Pittsburgh School of Law
Friday, March 18, 2005; 3:00 PM

The presiding judge in the case of Terri Schiavo ruled Friday that the feeding tube keeping the brain-damaged woman alive must be removed despite efforts by congressional Republicans to block the move by seeking her appearance at hearings.

Read the story:Judge Permits Removal of Schiavo's Feeding Tube, (AP, March 18)

"This case regarding termination of life sustaining medical treatment by unprecedented congressional intervention is one of the most difficult decisions a family must make," said University of Pittsburgh law professor Lawrence Frolik, in an interview with washingtonpost.com.

Frolik, law professor at the University of Pittsburgh, was online Friday, March 18, at 3 p.m. ET to discuss and explore the many aspects of the Florida case: the unprecedented congressional intervention, the legal ramifications and the ethics questions.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


Bridgewater, N.J. : Has a similar case like this happened in the past? Do you know what was the outcome then?

Lawrence Frolik: Over the past 20 years there have been many reported cases concerning whether a feeding tube could be discontinued from a person who was permanently unconscious (as Terri Schiavo reportedly is). The consensus is that the tube can be removed if the patient left written instructions to that effect or made oral statements approving that course of action. In general courts want to do what the patient would have wanted and are pretty liberal in finding the intent of the patient. But a few states set a very high standard of proof: clear and convincing evidence of the patient's intent.


Baltimore, Md.: This is crazy. Does this mean that we all better have written instructions on what to do should we ever become incapacitated? Otherwise, they can take our life? Shouldn't we skew toward life anyway, especially without a written will as in this case.

Lord knows we do that with death row inmates. Appeals up the wazoo in order to prolong their existence.

Lawrence Frolik: We should all leave written instructions and discuss how we would want to be treated with a spouse, life partner and adult children.


Rockville, Md.: As an elder law attorney, my experience is that 98 percent of my clients prefer to be allowed to die rather than remain in a vegetative state. The court made a factual determination based on all available evidence that Ms. Schiavo was in agreement with the vast majority of people -- she would not have wanted to be kept alive through artificial hydration and nutrition. Yet I hear this pitched on the radio as "murder" instead of the recognition that a person has the freedom in this country to refuse medical care and to reject being kept alive by machines. Do you see this as the beginning of a larger trend to deny people the right to die in peace and dignity in the name of respecting life?

Lawrence Frolik: I agree with your assessment, but hope that this is not the start of a trend.


Doral, Fla.: How does the law define a person?
Is a person no longer a person when physically incapacitated?
Where in the law books does it mention that a person is no longer a person?

Lawrence Frolik: Terri Schiavo is a person as long as she is alive. But a person has a right to have their medical care discontinued and that can be done by a surrogate, such as her husband, who is carrying out her wishes.


Burke, Va.: Can legislatures (including Congress) generally make up laws as they go along to address very specific cases like this?

It seems like that would be pretty much obsolete the judicial branch.

Lawrence Frolik: Such "private" laws may not be constitutional. But here Congress apparently is considering a law that would have broad application.


Chelmsford, Mass.: On what basis has the judge in this case refused to (a) either remove Michael Schiavo as the guardian, or (b) appoint a so-called third party as go-guardian? There is an abundance of evidence that Michael Schiavo has many conflicts of interest -- including the fact that he has been living with another woman for years.

Lawrence Frolik: He does not have a conflict so long as you believe his testimony that Terri said she would not want to be kept alive in her present condition. If that is the truth, then any guardian should attempt to carry out her wishes - not impose his or her own values.


Doral, Fla.: Does Mr. Schiavo have written proof of Terri's wishes?

Lawrence Frolik: Apparently not. In many of these cases the patient left nothing in writing. Oral statements must necessarily be relied upon.


Upstate N.Y.: Recently a relative made the heart wrenching decision to take their three year old off a ventilator when it was clear there was no hope of improvement. It is a unbelievably difficult choice to make but it is reality. Sometimes we face the need to make choices we wish we didn't have to make.

How on earth is anyone served by taking seven years wrangling through the U.S. court system to make such a deeply personal decision. Everyday these types of decisions get made. Is there a real chance that the legislation being proposed could interfere with families rights to make these sensitive choices? The whole case seems like the definition of insanity. The only good is that the judge appears fed up with the ongoing battle.

Lawrence Frolik: Yes, the decision to terminate life-sustaining treatment is a very difficult one. And does not seem to be one that should be second guessed by a legislative body after a judge has supervised what is happening. The issue is whether we trust our courts do carry out the law.


Silver Spring, Md.: Aren't decisions like this made every day by family members? Isn't the court only involved here because the parents' have opposed the husband's action?

Lawrence Frolik: Yes. Absent family opposition, and when the physician agrees, life-sustaining treatment is removed every day.


Columbia, Md.: Why is the guy still considered her husband? Other than there was no divorce? He has a girlfriend and kids! Why couldn't they get him on abandonment? Or having an affair?? It's obvious he wants the money.

Lawrence Frolik: He is legally her husband. But even if you don't like him, his behavior is not the point. The issue is what did Terri want? Do you really think that she wants to be kept alive in a vegetative state for years to come with absolutely no hope of recovery and having no mental functions?


San Diego, Calif.: Has there been any talk in this case regarding the cruel nature of this method of death? I don't know, but would imagine starving to death is not a peaceful way to go. Thank you.

Lawrence Frolik: Doctors tell us that removing a feeding tube does not cause pain and the subsequent lack of nutrition - particularly for someone whose cerebral cortex is essentially dead.


Richmond, Va.: Does it make any sense in this case that Judge Greer would function as both Terri's guardian and judge? It doesn't make much sense to me.

Lawrence Frolik: The husband is the guardian. The judge is only overseeing his actions.


Arlington, Va.: I have read somewhere that her parents believe that her condition can improve. Is this accurate?

Lawrence Frolik: Yes. Her parents do not think that she is in a persistent vegetative state (permanently unconscious.)


Washington, D.C.: I don't understand why her parents have a say at all. Her husband wants the tube removed. Why do her parents have any legal say at all?

Lawrence Frolik: Any interested party can petition the court to challenge the proposed act of a guardian. That is what her parents did and they certainly have the right to do so. The judge then must decide whether the guardian should be permitted to act as he has proposed i.e. remove the feeding tube.


Upper Marlboro, Md.: I never have understood (based on what has been reported about this case), why exactly the husband is so adamant about ending her life support. If her care has become burdensome, couldn't he just allow her parents to take over her (e.g. by divorcing her) care? Or is he motivated by his conviction that his wife would absolutely not want to be kept alive in this fashion? Thank you.

Lawrence Frolik: The husband maintains that he is only trying to carry out Terri's wishes. Whether he has another motive - who can tell?


Sterling, Va. Did Congress abuse their subpoena powers when they ordered Ms. Schiavo to appear before them?

Lawrence Frolik: I don't know enough about Congressional subpoena power to respond to your question.


Pelham, Mass.: How does a court determine adequate proof of verbal statements in a case such as this, with different sides in contention?

Lawrence Frolik: As with any trial, the fact finder, in this case the judge, evaluates the veracity of the witness or witnesses and makes a determination as to what was said or not said.


Washington, D.C.: Professor Frolik:

I'm still confused about the procedural posture of this latest development. Did Congress seek to intervene on the basis that it has the jurisdiction to subpoena anyone about anything, and, therefore, removing the feeding tube would interfere with her ability to "appear" and "testify" in violation of federal law? Did it initially seek a TRO on this basis? With respect to the specific issue of Congress's attempt to intervene (interfere), and the judge's denial, is there a federal question here that might make its way to the U.S. Supreme Court?

Lawrence Frolik: I think the subpoena was merely a device to block the removal of the feeding tube so that Congress would have time to consider and enact legislation that might prohibit the removal of the tube.


Boston, Mass.: Professor,
This case scares me even though my wife and I are young and healthy. We discussed and agreed that if either one of us reached a point where we were merely existing with the help of medicine, and not living anymore (as what seems to mirror this case) we would want our lives ended early. If I understand what's going here correctly -- is the will of the woman's parents (and lawmakers) going to take priority over her husband's? And, is there any contract or statement my wife and I could author that will ensure if a similar situation arises, our wishes will be respected?

Lawrence Frolik: All seem to agree (at least for the moment) that written instructions as to end of life care should be respected and enforced. The issue is how to treat oral statements - which I suspect many do not believe should be considered binding evidence of what the patient wanted. The problem is that only a minority of us create written statements as to how we want to be treated.


Washington, D.C.: They keep portraying it as a debate between the husband and the family. Who is picking up the tab for Terry Schiavo's life support care? If it is the taxpayers, do we at some point have the ability to say "enough"?

Lawrence Frolik: I don't think we should terminate life-sustaining treatment merely because of the cost of the care. But most of us would not want to be treated for years at the taxpayer's expense if that treatment was futile.


Glover Park, Washington, D.C.: Has there been any increase in the numbers of people writing living wills based on this case's publicity? I can't overstate how important it is to leave instructions for your care in writing, in case you end up in this horrible >situation.

Also, does anyone really think that the grandstanding by Congress will actually help this situation, or any like it?

Lawrence Frolik: I assume more living wills are being signed but that is just a temporary event. Most folks will never sign one, unfortunately. What they actually need to do is appoint a surrogate health care decision maker who can act if they become mentally incapacitated. And give the surrogate the power to terminate life-sustaining treatment under appropriate conditions such as permanent unconsciousness.


Falls Church, Va.: Not so much a question, as a correction to something an earlier questioner wrote. Michael Shiavo is not doing what he is doing for money of any kind. Terri's life insurance policy was paid out already, and has been used to provide the care that she has received. Articles written last year noted that such money is close to completely gone. As for Michael Shiavo having a girlfriend and children by that woman, let me ask this: After having to cope with this ordeal for over seven years, and knowing that his wife was never coming home again, why is it so wrong for the man to try to live his own life, at least in some small way?

Lawrence Frolik: You are correct. This case is not about money. It is about life and when it should end.


Columbia, Md.: If Congress had been successful in subpoenaing Terry, and postponing the removal of her feeding tube, wouldn't that be paving the way for the government to decide who should live and who should die? An example would be the decision NOT to follow through with cancer treatment and having Congress try to pass a law making that illegal.

Lawrence Frolik: There is a very grave issue here as to who decides what kind of medical care can be provided to a mentally incapacitated patient. Currently the law holds that the patient can control his or her care even after becoming mentally incapacitated. Of course, there is the issue of proof of what the patient wanted. Some courts have even cited the patient's "lifestyle" as relevant evidence. Some in Congress seem to be suggesting that the standard of proof of what the patient wanted must be a very high one. That necessarily means less autonomy for the individual since in many cases the higher standard of proof will not be met.


Fairfax, Va.: Are the pictures that we are seeing of this young lady old pictures? She does not look like a person in a vegetative state. Can she see and hear but just not respond?

Lawrence Frolik: If she is in a vegetative state she can not see though her eyes do open (that is common). Nor can she hear or feel pain.


Washington, D.C.: In what other instance would what amounts to hearsay stand in court? For example, in cases where people die without a will, is it a sufficient enough basis to decide matters of inheritance?

Lawrence Frolik: Only a written will is valid. But hearsay testimony is used every day in courts across America to decide whether someone who wrote a will had the mental capacity to do so (testamentary capacity.)


Rancho Cucamonga, Calif.: Do you believe that Congress has overstepped it's bounds with this case? I believe that this would be considered a state matter and not one for the federal government. This is a classic matter of legislative "overstepping" of the separation of powers.

Lawrence Frolik: Prior to this case Congress has not attempted to create a uniform national law that governs termination of medical treatment. Each state has been free within the parameters of the federal constitution to create its own law.


Great Falls, Va.: Isn't it unfair to call this situation a case of "medical care.'? Food and water are among the most basic needs of a human being. And as any RN can tell you, it takes very little to learn how to use a feeding tube and such a person requires no special diet. If food and water are as basic a necessity to life as the air we breath, why not suffocate Ms. Schiavo and get it over with more quickly? Death by starvation is one of the most cruel ways to go.

Lawrence Frolik: The American Medical Association has ruled that the artificial provision of nutrition and hydration are a form of medical treatment. And since she does not feel pain, it does not seem cruel. As for suffocating her, that would be criminal homicide.


Washington, D.C.: How is "unconscious" defined here? I understand that she has little to no mental capacity, but it seems to me that if she's awake and responsive to voice, touch, etc., then she could be considered conscious.

Lawrence Frolik: According to the treating physicians, she is not responsive, does not hear or feel anything. That is why she is diagnosed as being in a persistent vegetative state. It is her parents who claim that she is responsive.


Miami, Fla.: On a jurisdictional level, how can the U.S. Congress justify intervention in the Schiavo case? This seems to be a pure state, not federal, matter.

Lawrence Frolik: I believe that Congress could legislate a national standard in this area. Whether it should is another question. And whether it will is anyone's guess.


Charleston, W.Va.: Sir:

To what extent do questions of marital fidelity, parental alienation, personal greed, religious conviction and political opportunism interfere with an individual's right to end-stage care in the absence of advance directives? It seems to me this case highlights all these social pitfalls.

Lawrence Frolik: Those emotions do play a role. But the vast majority of us would prefer not be maintained alive for years and years if we are in a persistent vegetative state. Starting with the assumption that the patient would want to be kept alive is all cases does not consistent with reality.


Lawrence Frolik: I have to conclude this discussion. Thanks to all of you for your questions. And don't forget - sign a living will and name a surrogate health care decision maker.


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