The Schiavo Case

A Family Feud at the End of Life
by HANA OSMAN, Ph.D.
Department of Community & Family Health
USF College of Public Health
FBN Board Member

In a case that is gripping the Tampa Bay area, a family's private affairs have been in the public eye since January 2000. The case of Tern Schiavo has attracted local, state, and national media attention. In an era when privacy rights are sanctioned by the federal government in the form of HIPAA regulations, decisions that are generally made privately between the patient, the family and theft health care providers, are subjected to public scrutiny by the courts, by health care professionals, and others. One account of the Tern Schiavo case appeared in The Tampa Tribune on January 29, 2000 in an article titled "Patient's life in judge's hands." Since then, more than fifty articles have reported on the progress of the case in the judicial system. This case raises questions about:

1. The protection of a patient's right to make an oral declaration regarding end-of-life care;
2. The protection of the next of kin's ability to implement the patient's wishes in the face of other family members' opposition;
3. The effectiveness of engaging the court system in resolving family disputes; and
4. The ability of the court system to effectively intervene on behalf of incapacitated patients who are at the end-of-life.

Historical review: On February 25, 1990, Tern Schiavo suffered a heart attack caused by a chemical imbalance that resulted from an eating disorder, which left her in what has been diagnosed as a persistent vegetative state. To facilitate the decision making process, her husband, Michael, was appointed her legal guardian, and in 1993 was awarded one million dollars in a malpractice lawsuit against physicians who failed to diagnose and treat the eating disorder.

In 1998, Mr. Schiavo filed a petition with the court to discontinue his wife's feeding tube, a request that her parents, Mr. and Mrs. Schindler, have opposed, in part by filing a lawsuit against Mr. Schiavo. In spite of a non‑jury trial in January 2000 that determined that Mr. Schiavo was the appropriate legal decision maker, and that he had produced sufficient evidence that Tern would not wish to continue to live indefinitely in a vegetative state, the court battles between Mr. Schiavo, and Terri's parents continue to this date. There have been more than 25 court rulings and interventions over the last tin cc years in an attempt to resolve this family dispute to no avail. The following questions may serve to identify the issues in the Tern Schiavo case:

Question 1: Are oral statements pressing one's wishes about end-of-life care valid in Florida According to Florida Statute 765‑101, "a witnessed written document or oral statement" qualifies as an advance directive, which provides protection under Florida law, as well as the Patient Self‑Determination Act of 190 a federal regulation.

Question 2: Who has the ultimate authority to make end of life decisions for incapacitated patients? In the absence of a patient­- appointed surrogate decision maker, the “Judicially appointed guardian" is the appropriate decision maker (FS‑765,401), and has priority over other possible decision makers, such as parents or other relatives.

Question 3: Is the court system an effective means of resolving family disputes In this case, court intervention has not (to date) resolved the ongoing battle over Mrs. Schiavo's health care decisions.

Question 4: Is the court system an effective means of on behalf of incapacitated patients who are at the end of life. This mechanism is available when all oilier approaches have failed, and should be used only as a last resort in contentious cases.

Discussion: The Tern Schiavo case illustrates one set of complexities that arise in the end of life care of incapacitated patients. When family disputes are not resolved privately, resorting to the courts may become an attempt to find a solution of last resort. This case was complicated by the fact that Ms. Schiavo had not explicitly appointed her husband as her decision maker, and the fact that she had not expressed her wishes about end of life care in a written, witnessed document. Selecting the party who is acting in Tern's best interest, and deciding on the most appropriate plan of care then became the duty of the court. Court proceedings are known to be costly and time consuming. and in this case, media sources report that the funds that were awarded to Tern and Michael Schiavo in the 1993 lawsuit have been exhausted.

The family of Tern Schiavo has agreed on little over the last thirteen years. There has not been agreement between the parties' witnesses about the prognosis for Mrs. Schiavo, and contradictory medical testimony was presented to the court. Mr. Schiavo's expert witnesses testified that Mrs. Schiavo's condition is irreversible,and that she has no probable chance of meaningful recovery, while the Schindlers' expert witnesses testified to their ability to treat Mrs. Schiavo with hyper baric treatments, the provision of oxygen in a concentrated form.

Conclusion: Although there is no guarantee that this case would have had a different outcome, had Mrs. Schiavo expressed her wishes about what medical interventions she was willing to endure, the courts may have decided that the decision was not the family's to make, but that end of life decisions belong with the adult competent patient, and that decisions that are made prior to incapacity should he upheld, even in the face of family disagreement. A lesson learned from this case may be to complete advance directives (a living will and a designation of a health care surrogate) when we are physically healthy, and mentally competent.