Law: The Terry Schavio Case and Its Implications

The  special interest of Stanford Law Professor Hank Greely, a good WAISer, is the relationship between medicine and law. It should therefore not surprise us that The Economist (4/9/05) chose a long letter by him on the Terri Schiavo case  to head its "Letters" page. To me, the most troubling aspect of the case was the blatant disintegration of the extended family, an institution clearly in decay. The family is a refuge for people with problems, including mental ones.  The extended family provides an even wider place of refuge.  Stanford psychology professor Philip Zimbardo hosted an excellent TV documentary on street people with mental problems.  One pathetic man committed suicide by jumping in the East River soon after he was interviewed. It seems clear that if these people had refuge in a happy family their distress would be lessened. The people in the Terri Schiavo case belonged tom a disfunctional, sad society.

Puerto Ricans have gone crazy because a world survey of happiness concluded that they were the happiest people in the world.  Mexicans came in second. I recall years ago, when we were driving in heavy rain through the Mexican countryside, we came across some peasants standing in the rain laughing happily, as though standing in the rain was fun. Is such happiness the result of  enjoying the support of  one's family, or is it that the simple life is more conducive to happiness than the rate race which for example triggers mental illnesses among graduate students in American universities, according to a recent survey.  Life, liberty, and the pursuit of happiness?  Should the Founding Fathers have goneRandy Black writes: I agree that the Terry Schiavo events were tragic, but for a different reason from most of those given in the news,  The facts show that on a daily basis, the tubes and machines are withdrawn from hundreds, if not thousands of persons across the USA for the same reasons as were the case surrounding Terry Schiavo: No hope for recovery, no brain activity, no chance, no way out.
I have experienced this issue (euthanasia) and have been faced with a similar decision in my own family recently. It was not a fun time, but there was no controversy because there was no disagreement among surviving family members, no outside lawyers and especially no expensive PR apparatus hired to manage the media as there was in Florida regarding Ms. Schiavo and her parents.
I disagree with the premise that this problem was exacerbated by the disintegration of the family or society. It  was a result of several elements: 1) No living will. If Ms. Schiavo had had one, we would not know her name today. 2) Her poor parents, and I say poor in the emotional sense, simply had issues that they failed to deal with effectively. Denial comes to mind. 3) A governor, Jeb Bush, who appears to have misinterpreted his mandate, and certainly the law, again and again and who will suffer for his transgressions. While many in the US applaud his actions, far and away, the majority of voters do not support the level of government intrusion that he asserted on behalf of his religious beliefs.
Terry Schiavo did not belong to a dysfunctional society. On the contrary, she was victimized by a dysfunctional legal system. A lawsuit that went through more than 30 courts in 14 years, including six trips to the US Supreme Court, and yet continued to generate legal actions? The lawyers should be in jail.

R H:We could discuss a) death and b) lawyers and a/b in different countries,
to Puerto Rico?


called attention to the letter about the Terri Schiavo case written by Stanford Law Professor Hank Greely and featured in The Economist. He now writes: For professional reasons I followed the Terri Schiavo case closely.  I agree with much of what Randy Black says, but not all.

First, we shouldn't focus on living wills.  They are flawed documents.  The living will is an instrument created by statute in many states in which an individual states what medical care she wants in various circumstances. With all documents, living wills share the problem of not necessarily being around when they are needed.  Many people have living wills whose existence or contents are not known at the time treatment decisions are being made.  More fundamentally, people making out living wills only rarely can accurately predict the circumstances in which medical decisions will have to be made.  As a result, their instructions, even if known, are often
inappropriate for the circumstances.

The better solution is the Durable Power of Attorney for Health Care, which names someone to make health care decisions for you if you become incompetent to make them for yourself.  Incompetency traditionally voids a
power of attorney; hence the term "durable" in these statutory creations. These documents often also include a statement of which the maker's wishes, which can help guide the person named to make decisions.  The Durable Power of Attorney for Health Care can, of course, be lost or mislaid, but the person named in it usually knows about it and can bring it up when necessary.  And that person can apply the maker's wishes to the medical

Which leads to the most important advice here - make sure the people who care about you know what you want.   There are probably more than a million cases of death by withholding or withdrawing of life support every year in
the United States (getting good numbers is hard).  Most of them are resolved with no difficulty because the doctors and all the family agree. Even those where there are some disagreements (often the "cousin from
Cleveland cases" of a physically distant relative who comes in at the last minute and is shocked that his relatives are giving up) usually resolve within a few days.  Only a tiny handful of these situations go to court. You can help make sure that you are not one of them by making sure the people who care about you know what you want - whether you put it in a living will, a durable power of attorney for health care, or nothing but conversation.  The true importance here is probably not for you. In these cases, "you" will be beyond caring what happens - or knowing what happens.  If you care about the people who care about you, have this conversation to make it somewhat less hard for them to make the decisions they will be called upon to make.  It's the last gift you can give people who love you.

Second, I don't think the legal system failed.  Crazy litigants with too much money behind them can keep cases going for a long time.  This one wasn't started until 1998 (8 years after Terri Schiavo's accident) and would have been resolved in 2002 but for the intervention of Jeb Bush and the Florida legislature.  I'd blame politicians, certainly not judges and not even the lawyers - certainly not Mr. Schiavo's lawyers and probably not even the parents' lawyers, at least not until the end. when they were making frivolous arguments on behalf of their (presumably paying) clients.

Randy Black writes: Hank Greely, a lawyer, points out the options for someone contemplating unexpected medical problems and the potential related solutions, Durable Power of Attorney for Health Care, and a Living Will. Then Mr. Greely defends the Florida legal system which I offered was dysfunctional, at least in the Schiavo case. But then, Mr. Greely placed most of the blame in the Terry Schiavo case on the Florida legislature and their governor, whom I suspect are mostly lawyers. He and I, and others agree, Jeb Bush stuck his nose in places that he should not have and likely dragged the legislature with him.
But has anyone else thought of the obvious? Far and away, most legislators are lawyers. And certainly the judges of the various Florida courts are lawyers – and those Florida courts are especially notorious for having their opinions overruled at the appeal level as we recall the debacle of Election 2000 where most of those Florida judges involved were told that they were dead wrong.Clearly, the courts of the US are dysfunctional in a number of areas of the law. Shall we discuss why, far and away, the majority of American couples contemplating adoption go overseas due to the dysfunction nature of the American legal system?

RH: Then the Supreme Court was right when it said that it should study foreign legislation, a statement which caused a public uproar.  The US should realize that it can learn things from "foreign" countries.

Ronald Hilton 2005


last updated: June 9, 2005