Hit Job By The LA Times

The LA Times runs a hit piece on Tom DeLay.

Patterico is on this; Michelle Malkin rounds up cheering from the critical thinkers of the left - apparently a headline of "Tom DeLay Does Awful Thing" disables the reading and thinking skills of half the blogosphere.  Worth remembering.

And the Right Wing Death Beast invites Tim Dunlop out for a spotlight dance on this one. 

Tim's response so far (in the UPDATE) includes this nugget:

...they are suddenly confronted with his gross hypocrisy in the form of the revelation that he (and his family) had allowed his father to die after they deemed he wouldn't recover from a serious accident.

Hmm.  "[T]hey deemed he wouldn't recover...".  Really?  Well, the incident was in 1988, prior to the 1990 Cruzan ruling.  At the time, Texas operated under the Natural Death Act.  A quick summary of the relevant procedure seems to be here:

The Natural Death Act (which became Texas law in 1977) says [the patient] must have a terminal condition before life support can be removed. Two physicians (one of whom may be her primary care physician) must concur in the diagnosis. One physician must certify that her death will come in a short time if she is removed from life support.

When those conditions are met, the law allows the doctor and the patient’s court appointed guardian to disconnect life support. Before they do it, they have to sign a “natural death directive” on the patient’s behalf. It must be witnessed just like the patient was signing it.

What if the patient has no court appointed Guardian, as in your situation. Texas law then requires that the doctor and certain family members agree that life support should be withdrawn. The family participants are drawn from a statutory list — and should include at least two people from the following categories:

• the spouse;
• the children;
• the parents; or
• other living relatives.

Emphasis added. 

And let's hear from Tom DeLay his bad self, describing the Terri Schiavo case:

“She’s not being ‘kept alive’; she is alive. It won’t take a miracle to help Terri Schiavo; it will only take the medical care and therapy that all patients deserve. Mrs. Schiavo is not being denied heroic measures; she’s being denied basic, basic, basic medical and personal care.

Emphasis added again.  Folks intent on seeing a parallel in these two cases probably will be able to.  But that is more a tribute to the power of the human imagination than to the actual connection.

More on the Natural Death Act here; Cruzan story and opinion excerpts; interesting view of "medical futility" from Baylor.

MORE:  LeanLeft is a medical ethicist, an honorable chap, and a lefty, so if he had any sense at all, he would duck this one.  Let's see - troubling.

UPDATE:  The NY Times piece by Shery Gay Stolberg is certainly more fair and balanced.  This sentence  - "their other children made the initial decision to withhold kidney dialysis and other treatments when it became clear that he could not recover" - is ambiguous, because there is a difference between "terminal" and "could not recover".  Terri Schiavo, for example, can not recover (in the opinion of virtually all experts), but is not "terminal"; based on the account and the law, Mr. DeLay was "terminal".

However, the Times closes with this:

However, Tony Perkins, the president of the Family Research Council, said that Mr. DeLay did not act inconsistently, and that the congressman's father could not be compared to Ms. Schiavo, who was receiving no medical treatment other than nutrition and hydration through a feeding tube.

"Two different situations," Mr. Perkins said. "With Terri Schiavo, there was no plug pulled, there was no respirator taken away from her. She was simply by court order deprived of food and water."

Here is the AP account, which is also better than the LA Times, but has troubling elements.  Here is a puzzling quote:

Maxine DeLay, the congressman's 81-year-old mother, told the Times. "Tom knew, we all knew, his father wouldn't have wanted to live that way."

Well, that may be the case, but it also seems to be true that he had no choice about living that way - major organs were failing, and death was nigh.  Or, if he could have been maintained indefinitely, than "that way" means, at a minimum, on a respirator, dialysis, and a feeding tube - this is hardly Terri Schiavo's plight, a point they quote a DeLay aide as making.

 

Comments

[gt]

I can see how pointing out Delay's hipocrisy could be construed as a hit piece.

Delay thinking that his father did not want to live like that is considered OK.

But when Michael Schiavo says the same about his wife he is a murderer.

[AT]

qt:

Do you not think there's a difference between a respirator used to keep a terminally-ill man alive, without which he would die in minutes, and food and water given to a phyiscally healthy woman?

[Paul Zrimsek]

The article's juxtaposition of the Schiavo case with DeLay's own situation is actually a model of fairness compared with its juxtaposition of his suit against the manufacturer of the allegedly defective brake with his sponsorship of tort-reform laws; the reporter seems to be under the impression that he wants to abolish product-liability suits altogether. (I'll admit that I did get an unfair chuckle out of the Congressman's echo of John Kerry: it wasn't my lawsuit, it was the family's lawsuit!)

[Harry Arthur]

Michelle Malkin gets it right and GT, true to form, you've missed the point.

Delay's father was "in a coma, kept alive by intravenous lines and a ventilator," while Terry Schiavo is on the same life support system you and the rest of us are on - food and water. How is it "hipocrisy" for Tom Delay to make the statement quoted above?

"Delay thinking that his father did not want to live like that is considered OK." Actually, even the LA Times article concurs that the entire family was in agreement about Charles Delay's wishes in this case, even given that he also did not have a living will. This is by no means the case with Terry Schiavo where there is strong disagreement between family, husband and friends over her wishes.

To even suggest that these cases are in any way similar says far more about the LA Times and your thought process than it does about Tom Delay. This isn't even a matter of "nuance," about which rational people might disagree. You do understand the difference between "letting" someone die and "causing" them to die, I presume?

So, when TM calls it a "hit piece" I have trouble coming up with a better adjective.

[TexasToast]

Why the “outrage” on the left, you ask?

I can think of four reasons:

1. The politicisizing of a deeply personal family tragedy in an attempt to change where the line is drawn regarding where life ends so as to create a legal precedent useful to those who would like to change the current line drawing about where life begins.
2. The demonization of Michael S and the doctors who made determination of just what Terri S’s condition is based upon a recast of the facts in a more “favorable” light on the Senate floor based on videos provided by the obviously deeply grieving family.
3. The attempt by Tom Delay to say that those critical of the investigation of his ethical “issues” are the same people who want to “kill” Terri S.
4. The continued misrepresentation of what Terri S’s condition is (by Charles Krautheimer, for instance, when he describes her as a “living, breathing person”). Every reputable doctor who has opined says the same thing – she has no upper brain function left. I would suspect that most organ donors have the attributes of “life” attributed to Terri S.

It seems to me the ethical thing to do is to help this family deal with its loss instead prolonging their suffering for political ends. That is what outrages me.

[TM]

Thank you, Harry.

Thank you, GT - Michell Malkin had already provided examples of lefties whose critical faculaties are suspended when Tom DeLay is criticized, but another example is welcome.

Good job, Texas "T". Let me pick through you answer:

It seems to me the ethical thing to do is to help this family deal with its loss instead prolonging their suffering for political ends.

I broadly agree. Part of my problem with the FLA legal structure is that the courts seemed like the first resort when the family was split in 1998. My guess is that our adversarial process encourages a hardening of positioins, rather than compromies. At this point, they may just be fighting out of a desire to not lose, and to regain/maintain control rather than because they differ wildly in their outlookfor Terri.

On your Point 1, that this fits into a larger pro-life agenda - so what? For example, it also fits into Tom Harkin's larger pro-disabled agenda (as the Times re-discovers today, derisive post of their on-again off-again coverage to follow). Tom DeLay and the Christian right probably enjoy sunny days and baseball games, too - can the rest of us as well?

Point 2 - I wonder about the timing - I think the opposition was in place before he was demonized.

Point 3, 4 - now the timing is a mess - you (and opponents generally) opposed this on Monday because of a column Krauthammer wrote the following Wednesday, or remarks made be DeLay the following Tuesday? Eerily prescient.

I think (1) is a big part of the answer, but folks need to reflect on whether they have a more substantive agenda than reflexive opposition to DeLay.

[TexasToast]

Tom

I agree that point 1 is probably the reason for opposition. Points 2, 3 and 4 are the additional reasons for "outrage".

[Harry Arthur]

TT,

Of course the topic here involves the LA Times' "hit piece" on Tom Delay, not why there is such "outrage on the left" about which I don't recall anyone asking. Most of the questions I've seen involve why the left seems so determined to see this woman die? Of course we wonder, too, why there seems such "glee" on the part of commentators that the courts have all ruled that she must die. Does seem to place in question whether the motivation of the left is so altruistic as you suggest.

Since you are outraged about this, let's discuss some of your points.

1. You're certain that in the end this is all about abortion? We could argue the internal motivations of others ad nauseum, but neither you nor I know what motivates Tom Delay, et al, and isn't it just possible that people do see a "living, breathing human being" and are not convinced by the preponderance of the evidence that she would truly prefer to die in this condition? Isn't it just possible that the primary motivation here is more than political? Not if Tom and friends are truly evil, or at best hypocrits, right?

2. I think there is some level of unease about Michael's conduct in this case and whether he has accurately represented the facts about his wife's desires. There is certainly no unanimity among her family, husband and friends about her wishes and she admittedly does not have a living will. There is clearly a strong difference of opinion among those closest to Terri.

3. I'll let Tom Delay speak for himself, but his comments posted above by TM certainly do not seem over the top to me, nor does the use of the word "kill" to describe starvation and dehydration.

4. Is she not a "living, breathing person" as alleged? You equate her to an organ donor? Do you really mean that?

Is there no difference to you between "allowing" someone to die and "causing" someone to die?

So, you are "outraged" that we are somehow prolonging the suffering "for political ends" of "this family." I don't think you're talking about the parents, because they are the proximate cause of "prolonging the suffering." I don't think you're talking about brothers, sisters and friends because they all allege that Terri would want to live. Whose suffering, exactly, are we prolonging for political ends? Terri's? We're not certain of her desires, other than by court decree, and she does not seem to be suffering other than by court decree.

If Terri was on a ventilator or some other machine, I could at least understand and maybe even agree with your argument, however, we are talking about witholding food and water here. Are you REALLY comfortable with where that takes us?

[TexasToast]

Harry A

As to topicality, Tom has an earlier post wondering about the opposition of the left in general and comparing it to the “Profiles in Courage” displayed by Senate Democrats. This was just the last Terry S post I read from him this AM. I don’t think anyone is gleeful about the tragedy that’s happening here. There may be some “glee” about the political mess that Delay and his cohorts have managed to get all over themselves – but I don’t think that’s inappropriate.

As to your larger point, I should perhaps be more charitable and assume as you do that Mr. Delay and his friends are acting out of pure altruism. However, their continued rhetoric about the “culture of life” undercuts any argument that they have no other motive. Do you truly believe they would have done this without a larger purpose?

As to your point about a difference of opinion, that goes directly to the question of who is to decide these things. Florida law has a sensible system. The guardian ad lytum appointed by the courts agreed with Michael’s decision, and Michael has tried for years to make Terry get better. The Texas Futile Care law allows institutions to remove life support over family objection if the medical facts so warrant. I am willing to accept the findings of the appropriate medical experts that the medical facts do so warrant in this case.

As to prolonging suffering, I’m reminded of King Canute saying that he couldn’t keep the tide from rising by ordering it not to do so.The Congress seems to have given these people false hope, if you will. I don’t think that it helped them to get over their suffering.

[MattR]

AT - I don't see a damn bit of difference between a respirator and a feeding tube. Both of those devices are assisting the body with a necessary function of life that it cannot perform on its own. When you need artificial machinery to support your life, you are on life support. It does not matter if the removal of that machine leads to death in a minute or a month.

[gt]

Wow Tom that was quite a comeback. 100% snark and fact-free to boot. No wonder you think Malkin is a source of knowledge.

With that aside let's try to focus on the issues. The biggest problem with this post is that you don't realize that there are a lot of implicit assumptions and so never address them. It's a pet peeve of mine, I should add. Here's http://www.dailykos.com/comments/2005/2/28/75436/8381/263#263>more . Notice how rapidly I got troll-rated by the Left.

You and others claim that DeLay's case cannot be compared to Schiavo because Delay's father was terminal and Terri isn't. To which the only response is, so what? Why do you assume that that is the relevant comparison? It certainly has no legal importance since the right to not use artificial methods to remain alive is the same on both cases and is not dependent on whether the patient is terminal or not. Now maybe you or DeLay think that there is moral distinction and that is fine. But if so DeLay, as a politician and legislator, should publicly say that he thinks that and propose relevant legislation. This would mean that no non-terminal PVS could choose to reject artificial methods of staying alive. But he hasn't done that, has he?

The reason why the two are comparable is pretty clear. Im both cases there were people who depended on artificial methods. As the LA Times reports:

Both stricken patients were severely brain-damaged. Both were incapable of surviving without medical assistance. Both were said to have expressed a desire to be spared from being kept alive by artificial means. And neither of them had a living will.

In both cases the attending doctors said there was no hope for recovery. The DeLay family, as the law allows, asked that the father be allowed to die with dignity. But when Terris' husband tried to do the same for his wife he is atacked by DeLay.

In the end though the problem I have with how the Right has looked at this is how unclear their arguments are. They are all over the place. Do they disagree with the law? Or with the findings of fact? I see a mix of both but no follow though in terms of the implications.

For example some say that we should take the parent's wishes into consideration. Why? Terri is a married adult. And more importantly how? Do you or others propose to change gurdianship laws and make parents co-guardians with spouses? Really? If not, then why mention this at all.

Others say that Michael should not be the guardian because he is with another woman. So is the Right proposing a new law mandating celibacy in these cases if the husband or wife want to remain as guardian? Again, if not why mention this.

Others say that when in doubt one should always err on the side of caution and maintaining life. Will the Right propose new laws allowing PVS patients the right to reject artificial methods ONLY if they have a living will? If not, why do they mention it.

I wish that you or others on the Right would propose in a few simple sentences what you think is wrong in this case and what, specificially you think should be changed.

[TM]

Texas "T", re the outrage - good point, and when you are right, you are right. I certainly got progressively more irked (or more irked by progressives) as the week went on, so I suppose you can, too.

As to topicality, Harry, Tex is right again (let's not get accustomed to that...) - on some other post, I did ask "why the outrage?"

GT, give it a rest. Other similarities between DeLay and Schiavo include that both incidents took place where the main language is English but with a significant Spanish sub-group; also a yellow sun. So what? From your expanded reply:

Now maybe you or DeLay think that there is moral distinction and that is fine. But if so DeLay, as a politician and legislator, should publicly say that he thinks that and propose relevant legislation.

Well, since I quoted DeLay's public statement noting that Terris S did not require heroic care, and since medical ethicists do, regardless of your personal preference, distinguish between heroic measures and routine care, I think that point is covered.

This would mean that no non-terminal PVS could choose to reject artificial methods of staying alive. But he hasn't done that, has he?

I assume you are aware of the Texas Futile Care Law Bush signed allowing *exactly* that. To say that DeLay's position would be that no PVS patient could voluntarily terminate has no basis in fact that I can find (but feel free).

As to Schiavo, if you have not noticed yet, the dispute is in the news because the family is divided, and her wishes are, in my view if not Judge Greer's, quite unclear.

And is there any chance of your admitting that this, from you, is, at best, wildly misleading:

In both cases the attending doctors said there was no hope for recovery. The DeLay family, as the law allows, asked that the father be allowed to die with dignity. But when Terris' husband tried to do the same for his wife he is atacked by DeLay.

DeLay's doctors had to certify that he was *terminal*. Regardless of the quote from the mom, that did not mean he had no hope of regaining full function - it meant that current medical techniques were not going to keep him going much longer, and patients are not obliged to endure heroic intervention.

Is Terri S. terminal? No. No one is "allowing" her to die - they are *forcing* her to die by withholding food.

Now, you may wnat to pretend that in your special world of customized ethics and laws that might be, DeLay is a hypocrite. But given the laws and ethics of 1988 and 2005 as understiood by the rest of us, the cases are not similar in the important dimentions.

Will the Right propose new laws allowing PVS patients the right to reject artificial methods ONLY if they have a living will? If not, why do they mention it.

Gee, in my newspapers, it has been widely reported that the Florida Senate rejected exactly that.

I wish that you or others on the Right would propose in a few simple sentences what you think is wrong in this case and what, specificially you think should be changed.

Oh, and then all would be forgiven? Please.

Anyway, Krauthammer made his proposal. "Vile and disgusting" was your description of his column.

[Harry Arthur]

Matt, I'm just wondering whether, when I'm in my DC-10 pressurized and heated cockpit at 37,000 feet at .82 mach whether I am on life support or not. By your definition of course?

It seems that in context, there is life support and then there is life support. The question is when is it appropriate, and who gets to decide when to deprive someone of that life support.

GT & TT, the difference remains that there is great disagreement between Terri's immediate family members as to whether this was truly her wish. Her husband asserts that it was. Her parents, siblings and friends assert that it was not. The law maintains that the husband is the guardian. Fine.

Congress simply tried to pass a law that required the federal courts to review the adequacy of the state court's findings. After all, everything about this case seems to have taken place in a single state court under the jurisdiction of a single judge. Most of us would want a second opinion about most things in life, especially when death might be the outcome. I don't see this as much different.

Tom Delay and Tom Harkin, hardly akin politically, agreed. Congress passed a law. Perhaps they should have minded their own business. Perhaps not. If you view this as expressing their concern for a seriously disabled young woman unable to express her own desires, and just perhaps, whose desires have not been adequately expressed by her guardian, then their concern might very well be warranted. Politics? Who knows?

In any case this will not and should not be a future political issue for either side. Should it become so, I suspect that voters will punish those who try to make it so at the ballot box. I think most Americans understand that there are no real winners here and that poor Terri Schiavo is none the better for all the arguing. Though I am inclined to believe that to err toward life is virtually always better than going the other way.

It does tell us one thing unequivocally: if you lack a living will, it may very well not be a wise position in which to place yourself or your family.

[Paul Zrimsek]

Perhaps we could work out a modus vivendi (or is that modus morendi?) where supporters of Congress' intervention refrain from unnecessary attacks on Michael Schiavo's character, while attackers of it refrain from arguments which presuppose that the judicial system of the State of Florida is a member of the Sciavo-Schindler family.

[GT]

OK, too complicated.

Here is the simpler version.

On DeLay if you want to think there is no comparison it is your right. I disagree as do many others. To me its pretty clear that they are directly comparable and that DeLay's family made a decision based on what the law allowed them but when Michael Schiavo also tried to make a decision based on what the law allows he is vilified.

On the case itself:

Do you think the laws are wrong and if so what would you change?

Or do you think the laws are OK but challenge the fact finding?

[Harry Arthur]

Paul, I am and always have been of the opinion that, absent evidence to the contrary, a person's character should not be questioned, nor can we know the true motivations of another. Nor do we know how we would act in similarly distressing circumstances.

My point in this case is that it is very possibly Michael Schiavo's firm and sincerely held belief that Terri's wish would be to die. Unfortunately it appears that her parents, sibblings and friends share the opposite belief just as firmly and sincerely. In all probability one side is wrong. That doesn't imply either side is bad, just mistaken. Heck, perhaps Terri herself would be in conflict regarding the potential courses of action if she could express her thoughts. We just don't know, and at this time probably can't know.

I am also of the opinion that when you don't know whether a room is empty you do not throw a hand grenade into that room.

GT, if either Michael Schiavo or Tom Delay were more sympathetic figures I suspect many people would come to different conclusions about their motivations.

In answer to your question, my response would be that I find the fact finding less than compelling. I don't have a fundamental problem with this eventually ending in the courts and I think Congress was just trying to ensure there were at least two opinions on the facts as opposed to the process. Unfortunately they got a "process" answer for their efforts. By and large I think it was handled reasonably well by Congress so as to interfere in the least possible way with the functions of the state but to weigh in on the principles as they saw them.

[The Fox]

First, a side point. Someone (Texas Toast, I think) said that the guardian ad litem agreed with Michale Schiavo). In fact, the guardian ad litem found Michael's testimony unconvincing (because of financial conflicts and a change in position after the malpractice case) and recommended that the judge rule against Michael on the issue of Terri's wishes. After the guardian ad litem's written report, Michael Schiavo accused him of bias, and the judge dismissed him and refused to appoint a replacement.

Second, there is a huge difference between DeLay's father, who faced imminent death with or without a feeding tube, and Terri Schiavo, who would continue to live for decades with a feeding tube.

[MattR]

Harry - I don't know if you were trying to be serious to my response or not. Humans cannot survive at the altitudes where airplanes fly so they need assistance. If you want to call this temporary life support, I am fine with that. But don't try and compare it to a feeding tube whose function is to permanently replace a normal, necessary bodily function.

[Culpepper]

Matt R,

What about a pace maker?

Culpepper

[GT]

Harry,

OK. So I have to ask. What do you think should have been done, given that there is a disagreement in the family about what Terri wanted?

[Michael Lagana]

Great conversation. I am new to the site and came over from Malkin's site. My belief: Terri Schiavo should live in the care of her parents.

This may be simple, but Judge Greer made a life and death decision based on verbal testimony that was contradicted from the beginning. Michael Schiavo is the legal guardian, but the testimony from the parents and friends stating that Terri would want to live must be heard. The question for the legal system: how much weight do the spouse's words carry? If 20 persons came forward and affirm the injured party wanted to live, and the husband still says, "No. She said she would rather die," would the court automatically reject the others' claims? Sometimes it is said that it is better if many guilty go free than one innocent be punished, or something to that effect. I think we may need something analogous for "life" issues.

Also, a significant difference between this case and the DeLay case is that there was no familiar differences within the DeLay family. The LA Times story surely realizes that if everyone in the Schiavo family agreed, this would not be in the spotlight--the prolife forces (DeLay included) would not have mobilized.

Finally, this may be a silly question: If the congress passed a law solely for Terri and stated her 14th Amendment rights were violated, wouldn't the law in itself be a violation of everyone else's constitutional rights because it excludes everyone else?

[Michael Lagana]

Great conversation. I am new to the site and came over from Malkin's site. My belief: Terri Schiavo should live in the care of her parents.

This may be simple, but Judge Greer made a life and death decision based on verbal testimony that was contradicted from the beginning. Michael Schiavo is the legal guardian, but the testimony from the parents and friends stating that Terri would want to live must be heard. The question for the legal system: how much weight do the spouse's words carry? If 20 persons came forward and affirm the injured party wanted to live, and the husband still says, "No. She said she would rather die," would the court automatically reject the others' claims? Sometimes it is said that it is better if many guilty go free than one innocent be punished, or something to that effect. I think we may need something analogous for "life" issues.

Also, a significant difference between this case and the DeLay case is that there was no familiar differences within the DeLay family. The LA Times story surely realizes that if everyone in the Schiavo family agreed, this would not be in the spotlight--the prolife forces (DeLay included) would not have mobilized.

Finally, this may be a silly question: If the congress passed a law solely for Terri and stated her 14th Amendment rights were violated, wouldn't the law in itself be a violation of everyone else's constitutional rights because it excludes everyone else?

[Harry Arthur]

Matt, I was attempting to make a serious point in an admittedly somewhat faceteous manner.

What I was really looking for was your point. If I understand the underlying assumption, I believe you are playing word games to equate life sustaining support such as food and water that we all need, whether by eating utensils or feeding tube, and artificial life support such as by a ventilator or other mechanical device.

You said that you "don't see a damn bit of difference between a respirator and a feeding tube. Both of those devices are assisting the body with a necessary function of life that it cannot perform on its own. When you need artificial machinery to support your life, you are on life support. It does not matter if the removal of that machine leads to death in a minute or a month," thereby equating normal sustenance with extreme means to maintain life and justifying starving someone solely because they are severely brain-damaged.

My point is that simply because we use the label of "life support" does not necessarily mitigate for extreme measures. By your definition, an IV would in most circumstances be considered life support, while a feeding tube can be a life-long reality for someone with certain eating disorders or swallowing problems, technically life support by your definition, but certainly a level of life support more similar to my airplane example than would be a ventilator.

To equate the two seems to suggest that there is no difference in the removal of either. A point to which I simply cannot agree. Terri S is a "living, breathing human being" who needs only food, water and air to continue to live and breath. Terri may have serious brain damage but she is not what would be considered "terminal" with respect to her physical condition. And I still submit that there is a major ethical difference between stopping extreme measures such as ventilation and stopping feeding, regardless of the delivery method. Thus my illustration that there is a difference in "life support" depending on the context.

As to the Congress' action, I submit that it is a legitimate function of a government to intervene in the protection of the weak from abuse by the strong. You can honestly disagree with what the Congress has done or whether they have the right to do it, but I do not for a minute believe that their motives were sinister or even crassly political - necessarily.

Thanks for asking, GT. Please see The Fox's comments above. If true, and for the sake of argument I'll assume that they are, this is an additional troubling aspect of the case. In short, I think this is so fundamentally important that it simply must be gotten right.

I am convinced that a second independent court should have considered the evidence for this decision, not simply reviewed the process of the lower court. That is clearly what Congress intended and unfortunately it didn't get done. I am still very concerned that, absent a living will, a single court and a single judge elected to discount testimony from essentially all but Michael S in this decision.

In answer to your question, I would like the facts to be reexamined in an independent review of the case, including advance medical diagnostic regimes that as far as I can tell have not yet been applied, e.g., MRI. In the final analysis, if the parties can't reach agreement on Terri's wishes then it is also my belief that we should err on the side of life.

Why do I care? I can't help but wonder what our society becomes when we get the family together and decide that, gee it's costing us a lot to keep grandpa in the home, and his mind's gone now, and, well, we all agree "he wouldn't want to live like this," so we just won't feed him any more. I'm not much one for "slippery slope" arguments but I can't help but thinking we really need to think this through carefully.

[MattR]

Culpepper - Pacemaker is a tough one. I would say that since it is not intrusive (ie. the patient does not notice it exists) it does not really count. It is almost more of a medical procedure like a plate in the skull. But I could easily be persuaded to go the other way. However, I would definitely consider dialysis to be life support.

Maybe a good definition would be if completes the sentence: He/she is being kept alive via a XXXXX. (repirator, feeding tube and dialysis machine fit there, pacemaker does not quite.)

[gt]

Harry,

The Fox is talking about the first Guardian ad Litem who later admitted to being personally opposed to withdrawing the tube. The second Guardian ad Litem, the one resulting from the law passed in 2003 and who reported to Gov Jeb Bush, produced the closest thing to what you have in mind, an independent review.

So is it your opinion that in cases like this a family member can have veto power over the decision, so that if they disagree with what the patient would have wanted we should automatically assume the patient wanted to live in those conditions? I just want to make sure I understand your position.

[Patterico]

gt,

Fair question. My problem is that the evidence of Terri Schiavo's wishes is insufficient. I would do three things:

1. In the absence of a written directive, or agreement among family members regarding the patient's wishes, I would require proof beyond a reasonable doubt that the patient wants to die. It's a life or death decision. Don't use the same standard used to decide whether McDonald's must pay punitive damages to someone who spilled coffee on their lap.

2. Require trial by jury. Don't entrust the factfinding on a life and death matter to a single probate judge.

3. If the court decides the patient wanted to die, allow a quick and painless death by a lethal dose of drugs. No starvation and dehydration.

What do you think?

[gt]

I agree with 1) and 2). I think 3) poses big legal and moral issues I'm not sure we can solve yet. In fact, the more I think about it the more I like the idea of a family veto power in cases like this (with no will or other way of knowing). It would have to be carefully worded so that a spouses natural guardianshoip is not affected outside of this realm.

[Les Nessman]

"I like the idea of a family veto power in cases like this (with no will or other way of knowing). It would have to be carefully worded so that a spouses natural guardianshoip is not affected outside of this realm."

That would have to be careful wording, indeed. I'm not sure it could be done. Moreover, do we really want it done? What is the point of having a Guardian if the most important responsibility of being a Guardian is taken away?
A Guardian is supposed to be someone who is so intimate with you, who knows your deepest beliefs best, that they are trusted to see that your final wishes on this Earth are carried out; no matter what anyone else says.
Why turn that responsibility over to a commitee, even a well-meaning commitee?

[Harry Arthur]

Matt, please see TM's link to Barney Franks' concerns expressed on ABC's Sunday news show. Some of his comments: "I think Congress needs to do more. Because I've spoken with a lot of disability groups who are concerned that, even where a choice is made to terminate life, it might be coerced by circumstances."

Quite frankly, how we define "life support" really doesn't matter much to me - it becomes a word game - it's how we employ or deny life support that really matters IMHO.

GT, thanks. You asked "So is it your opinion that in cases like this a family member can have veto power over the decision, so that if they disagree with what the patient would have wanted we should automatically assume the patient wanted to live in those conditions?" I am always hesitant to use terms like "automatically assume" and "veto power" and much less so inclined in this discussion.

As I see it, the issue here is the level of doubt that we are ready to accept as we decide whether to withold food and water from an otherwise apparently physically healthy, but severely brain damaged person. I am willing to accept very little. I think Paterrico is headed down the same road, though I'm not ready to make the entire journey with him, particulary state-sponsored suicide.

Simply put, in my mind this decision must exceed reasonable doubt. My trouble with the Schiavo case is that I just don't believe it does, nor apparently is that the standard for the Florida courts. If legislation must be accomplished, as Barney Franks (hardly a cohort of Tom Delay's) appears to suggest, then lets have that argument also. If we cannot get by the "beyond a reasonable doubt" threshold before we deny this young woman food and water, then she lives. If that means that her parents can petition to be appointed her guardians, then so be it.

I honestly don't know what the solution to the guardianship question should be. There are clearly good arguments on several sides of the husband - family - court appointee suggestions. However, even given that there should be a guardian who represents the interests of the disabled person, I believe that appointment should not be without limits.

[TM]

I give up - I turn my back for a few hours, and a civil and sensible conversation breaks out. Well, I am resisiting the hint!

OK, I agree with GT re Patterico's suggestion - I understand the spirit of carrying the death wish to its logical conclusion and allowing a lethal injection, but right now, it is probably a step too far.

Good points on the guardian. Les said A Guardian is supposed to be someone who is so intimate with you, who knows your deepest beliefs best, that they are trusted to see that your final wishes on this Earth are carried out; no matter what anyone else says.

That is certainly the hope, but I don't feel great legislating that as an assumption; there will come a day when the allegations of marital discord are stronger than in the current case (and yes, husbands do assault wives, and vice versa).

As to family veto, I like some form of that idea - maybe a supermajority. But an individual veto means each person carries the knowledge that they alone could have saved Grandma (or whomever), and that may be an unfair burden.

[Harry Arthur]

TM, your comments on guardianship and a "supermajority" family veto were certainly civil and sensible. Are you slipping? :-)

Don't know anything about the veracity of the CodeBlueBlog site. Anyone else know whether they are serious, trustworthy, or prone to conspiracy theories perhaps?

If they are to be trusted, some sobering observations/allegations regarding Terri's CT scans.

[Patterico]

I am happy to find support here for my (longstanding) suggestion of trial by jury, with a "beyond a reasonable doubt" standard, for cases like the Schiavo case.

I am a bit puzzled by the opposition to my third suggestion of allowing lethal injection in cases like this, where the patient's wishes are clear, or determined by a jury according to the above standard. Only a *bit* puzzled -- because I understand it's radical. But it shouldn't be.

gt says my suggestion "poses big legal and moral issues I'm not sure we can solve yet." Harry Arthur says: "I'm not ready to make the entire journey with him, particulary state-sponsored suicide." And Tom Maguire says: "right now, it is probably a step too far."

Why?

Let's start with this question: if Terri Schiavo's wish to die were clear, and we all agreed that she was in a PVS, would any of us argue with the removal of the feeding tube? I wouldn't. My only problem would be that our method of killing her is too cruel.

We don't kill pets this way. Is that because we love pets less? I don't think so. The more you love your pet, the more opposed you would be to starving it. The more adamant you would be that you should be allowed to put it to sleep.

Why should it be different with humans? Shouldn't it be an even clearer call?

I understand this is not the way we operate now. But I think it should be. If it wouldn't do for a beloved pet -- or even a hated convicted murderer -- it won't do for our loved ones who are human beings.

[Harry Arthur]

Patterico, you make an excellent case. In all honesty I am at a loss for a contrary argument that fits society generally.

My primary concern would be that if we agreed to go there as a society we somehow avoid what Barney Frank termed "coersion by circumstances." I think if you look at some of the European countries that have these types of laws that there has arguably been documented at least some level of coersion at least among the elderly. Depending on how you wrote the law, though, perhaps one could argue that these written living wills would have to predate the event sufficiently to at least minimize the potential for coersion.

As a Christian, I don't have a problem with witholding extreme measures to a terminally ill patient, particularly by their written request. I am, however still struggling with the idea of actively causing a death as opposed to letting it happen in due course.

The latter seems to me to be assuming decisions best left to God. On the other hand, I have no desire to impose my beliefs on you or anyone else, nor would I interfere with someone who decided to refuse food and water on their own accord.

To some extent this goes to the nature of suffering and its purpose. But it also seems to me that a free person must have some level of autonomy to make this choice. We are not, after all, speaking strictly of a routine suicide here, at least in the Jack Kevorkian sense, but of a particularly special set of circumstances.

I honestly will have to think this one through at some length. Thanks, though, for the thoughtful challenge.

[Patterico]

I think if you look at some of the European countries that have these types of laws that there has arguably been documented at least some level of coercion at least among the elderly.

I absolutely agree. That is a big concern, in my book.

But I bet that not a single one of those countries requires a unanimous determination by a jury of 12, pursuant to a "reasonable doubt" standard.

If we apply that standard -- which we deem good enough to put convicted killers to death *against* their will -- I don't see a problem sliding down the slippery slope. And if we do have inappropriate results in numerous cases, despite my suggested procedural requirements, then our society is going to hell anyway.

[Me]

I think everyone's missing the point here. The law doesn't require Michael Schiavo to represent the verbally-stated wishes of Terri Schiavo (much less that he prove those wishes). The law understands quite well that when a person does not leave a properly notarized living will, that the individual's family must make the final judgement call, and that there may be no evidence at all that can properly settle the case. The authors of the law, who were elected legislators (not activist judges), certainly knew this. They deliberately set up a mechanism to address this exact situation. And the law clearly specifies that spouses trump parents. The law gives Michael Schiavo the right to decide whatever *he* thinks is best for his wife. Whether or not his decision reflects anything she might have said to him in the past is purely his judgement to make. Everything else about this case is phony: the case is, from a legal standpoint, open and shut. The ceaseless vocal disregard for the letter of the law has kept this issue alive.

[Patterico]

The law gives Michael Schiavo the right to decide whatever *he* thinks is best for his wife.

Wrong.

Whether or not his decision reflects anything she might have said to him in the past is purely his judgement to make.

Wrong.

Everything else about this case is phony: the case is, from a legal standpoint, open and shut.

Wrong.

All commonly held misconceptions, but all completely wrong under Florida law.

Michael Schiavo was required to prove to the judge by clear and convincing evidence that his wife would want to die under these circumstances. The law gave the judge -- not Michael Schiavo -- the right and responsibility to make the decision.

[David Walser]

Wow! A very civil discussion! In that spirit, let me try to respond to GT's question about what we would have done differently. I would not have objected strongly to Florida's law BEFORE this case. After the case, I'd like to see a change made.

My understanding of Florida law is that two facts must be established by clear and convincing evidence (a far higher standard than a preponderance of the evidence and not quite as high as beyond a reasonable doubt):

* The individual is in a PVS or is in a terminal condition, and
* The person expressed a desire not to live under such conditions.

With regard to the second of these two necessary facts, Florida law does not require the person's desire be expressed in writing. The desire may be established by other clear and convincing evidence. That's where this case teaches me that the law needs to be changed. I was not at the trial, but from everything I've read, I just don't see how Terri's desire to die could have been established in a manner meeting that burden of proof. Too many who knew her well testified that she did NOT want to die. Disregarding their testimony and giving credit to those who say she did want to die (or vice versa) requires the court to be a mind reader. I am NOT saying the court got it wrong in this case. I am saying I have little faith that the court will get it consistently right under like circumstances.

With regard to the first point, I have far less trouble than with the second. I still have some concerns. The court heard testimony from five medical experts. Two selected by Terri's husband, two selected by her parents, and, since the two parties could not agree on a 5th expert, the last was appointed by the court. Court's have to evaluate the credibility of expert testimony all the time. Still, it would be difficult for a position on which 2 of 5 experts disagree to be established by clear and convincing evidence -- unless you give virtually no weight to the two dissenting experts. Evidently the court's appointed expert on Terri's condition had written articles advocating euthanasia. On it's face, that background does not lead one to believe the expert was a neutral observer of the facts. (That does not mean the expert was not correct nor that the court got it wrong. It just seems to indicate that this objective process had a lot of subjectivity to it.)

So, if given the chance, I'd like to see the law require a person's desires be expressed in a formal legal document, a/k/a a living will, to be given effect. I fully understand that this would mean that some few would be kept alive under circumstances under which they would have preferred to die. The alternative is to allow some who would have preferred to live to die. Just where, as a society, should we allow the "rounding error" to go?

My view is greatly informed by what I do for a living. I am a tax specialist who spends most of his time helping clients with their estate planning. Today we met with a married couple about their living wills (among other topics). Despite the fact they have been following Terri's story in the news and have been talking about what they would do, they were unable to sign their living wills today. Neither one of them knows what they really want. At the beginning of the discussion, the husband was sure he wanted to be kept alive under almost all circumstances. The wife vacillated from one approach to the other. Absent going through the process of checking all the boxes and initialing the lines on a living will, I've found few people know what they really want. They don't even know what the alternatives are. It's a tough decision. One that typically requires thought. I think requiring a living will would encourage people to think through the issues. I honestly don't know how a court could divine someone's intentions absent a living will -- most of my clients have not known what they themselves wanted until forced to think through the matter by being confronted with a living will waiting for their signature.

[Patterico]

David,

A very articulate and forcefully expressed view.

Let me ask you this, though: from what you know of the DeLay case, was what happened there wrong? It seems to me that it was handled just right, though there was no living will.

Plus, no living will can foresee every eventuality.

If my strict requirements are met (in the absence of a written directive or unanimous family agreement, the decision is made by jury trial, with a standard of proof beyond a reasonable doubt), can't we be confident enough that we know the patient's wishes?

[Harry Arthur]

Given Patterico's legal background and David's additions to his comments I'd say "Me" you might want to dust off your law library some. Thanks to both for continuing my education in this area. As a pilot the best I can say is that I'm an amateur wannabe lawyer so I'm usually limited to logic and common sense - useful, but at times not in accord with the law.

David, I believe your illustration of the couple deciding whether to sign a living will is illustrative of what I find most troubling about this case. That is the fact that Terri is alleged to have made fairly vague, general statements on approximately two occasions that went something like "I wouldn't want to live like that" or "I wouldn't want to be tied to tubes". Hardly what I would characterize as rising to the "clear and convincing" standard of evidence that a thoughtful, introspective process took place.

Personally, David, I hope you stick around. You've contributed significantly to this particular discussion. I've noted that Social Security is discussed here on occasion and I'd image you might have something to contribute given your background.

[David Walser]

Golly! Thanks for the kind words Harry and Patterico.

Patterico, I think your approach should provide adequate safeguards, but I also think it would prove expensive and burdensome. On balance, I'd prefer a strict requirement for a living will, but I would not object to your approach and I'd find it an improvement over current Florida law.

As for the DeLay case, as it's been reported, I think it was resolved appropriately. Mr. DeLay was beyond question terminally ill and being kept alive from one minute to the next through invasive medical treatment. There also seemed to be agreement amongst all who knew him that he would have preferred to die rather than be kept alive using extraordinary means.

Would I have required a living will in such a case? Not before the Schiavo case. As I said, before the Schiavo case, I liked the flexibility the Florida law allows. If someone such as Mr. DeLay did not have a living will, it would be good to have the flexibility to do as was done in his case. But it appears to me that the Florida court abused this flexibility and that it may be better to limit the courts' discretion in these cases. We need, evidently, a bright line. Perhaps we should treat terminal cases differently than PVS cases. Since someone can be in a PVS and NOT in any immediate danger of dying in the near term, we might require a higher standard of proof of their intent before starving them to death. The problem is that some bright attorney wearing the robes of a judge might take it upon himself to determine that we are all terminal -- none of us get out of this life alive -- and thus blur the distinction between the two types of situations.

[TexasToast]

Let me echo the comments above about civility breaking out. Very refreshing. Very refreshing indeed.

I also do estate planning for a living and find my clients are taking living wills very seriously in light of all they have heard regarding the Schiavo case. However, its doesn’t seem likely to me that they will consider living wills with as much seriousness next year or in ten years. Thus, I think a strict requirement for living wills is not a good idea.

Similarly, I think a clear and convincing standard of proof in the absence of a living will should be sufficient. Beyond a reasonable doubt would result in “making federal cases” out of all cases like this and any objection by anyone for any reason would very likely result in “futile care”. That is exactly what would have happened in the Sun Hudson case.

Love is a beautiful thing – but strong emotion is not necessarily conducive to good decision-making. Sometimes letting go is true love.

[David Walser]

TT - I don't disagree with any of your observations -- just your conclusion. People too often put uncomfortable decisions. The same is true for a regular will, no? We still insist they execute a "valid" will if they are to have any say in what happens to their assets after death. Otherwise, they are stuck with what the legislature, in its infinite wisdom, determined they would want to happen. Will the Texas courts (or any other jurisdiction, for that matter) accept evidence of the decedent's wishes absent a valid will? My understanding is that, as a general rule, the answer is an emphatic no! (I'm an accountant, not an attorney.)

There are very good public policy reasons for why we are very reluctant to allow in testimony as to a decedent's wishes absent a will. Chief among these is that it is almost impossible to determine with reasonable certainty someone's intent and, as a result, there is a great opportunity for mischief. I think these public policy concerns apply equally well to living wills.

I've admitted that not everyone who should will execute a living will. Requiring them to endure the choice mandated by the legislature bothers me, but it is also an incentive for people to do their planning. Giving an out to hard cases just dilutes that incentive.

[Harry Arthur]

TT, I certainly agree with your comments on human nature WRT the probable loss of focus on this subject in the "next year or in ten years," though I am still inclined to think that a "beyond a reasonable doubt" level of evidence is appropriate in cases like the Terri S case.

I do not believe the Sun Hudson case is similar enough to Terri's to use it as an example. At least as I understand the facts, young Sun was basically terminally ill from birth and was being kept alive by extreme or extraordinary measures. If my understanding of the facts is correct (and I'll posit that it may not be) then Sun's case more closely resembles Charles Delay's than Terri's. Further, I believe his mother was insistent that the extraordinary means continue, and of course as an infant he never had the ability to express his wishes in the matter.

I do understand your reluctance to "make a federal case" out of these cases, particularly Sun Hudson-type cases. I just think it's worth the risk to ensure that where there exists some relatively significant level of doubt that we err in favor of the disabled person. It's an admittedly tough call and unfortunately there are many shades of gray.

I concur completely with your statement that "Love is a beautiful thing – but strong emotion is not necessarily conducive to good decision-making. Sometimes letting go is true love." I might go one step further and add that strong emotion is virtually certain to produce bad decisions in almost any area of life, certainly in this. I think where we might tend to disagree is how we affect the "letting go" part.

[TM]

A point not made yet, that our estate planners might pick up on:

With the widely-endorsed Patterico proposal, family consensus is at the top of the pyramid, followed by a fairly rigorous court examination in disputed cases.

Folks like me have been, perhaps naively, assuming that a concerned famly member holding up the process will be motivated primarily by their feelings for the family member (in the Terri Schiavo case, it is hard to see a financial angle for the parents or siblings).

However, a more typical (or at least, "worth being ready for" case might be a fellow with an ex-wife receiving alimony, kids from the first marriage getting child support, a second wife, and kids from that marriage.

Throw in life-insurance trusts, pension and disability benefits (disability paid while alive, of course), and other estate issues, and tell me - who has what financial inventives to keep him alive, or pull the plug?

I'm not saying this makes me like the current rules in FLA; I am just saying, the new rules had better allow for flexibility and recognize the possibility of many conflicted motivations.

Oh, and a bit of an olive branch on the DeLay family decision - reading this Kinsley column, or letters to the Times, it became clear that many folks have interpreted "err on the side of life" as "never pull the plug".

I think it would be hard (read "impossible") to document that as being DeLay's view (and if it is, it makes him more intent on preserving life than the Pope), but folks who believe that would be consistent in believing that he was a hypocrite for pulling the plug on his dad.

The Times talked about Catholic doctrine here - basically, an observant Catholic can refuse heroic measures, but the Church does not consider feeding tubes to be heroic. Other Protestant Churches would allow even the refusal of a feeding tube.

Times excerpt:

In 1998, speaking at a hospice in Vienna, Pope John Paul II proclaimed that keeping patients alive by "extraordinary or disproportionate means," as well as the artificial "hastening of death" by pulling the plug, were both at odds with Catholic principles. Both implied "that life and death are realities entrusted to humans beings to be disposed of at will," he said.

Now, I don't even know (or care) if DeLay is Catholic - my point is, the Catholic Church is the most pro preservation of life of the major groups out there, and you need to get pretty far into the fringe to find a "never pull the plug, ever" voice.

So, in my view, DeLay is focussing on (a) do we really know Terri Schiavo's wishes, given the divided family, and (b) is this intervention heroic?

Whatever.

[Joe Mealyus]

"Sometimes letting go is true love."

This sentiment is certainly reassuring and kindly, yet somehow if I try and focus on it, in my mind's eye suddenly there is an officer of the state who has me in a choke-hold, and another officer of the state is prying away the fingers of my left hand, one by one, and another ditto my right hand, and another is charging up his taser....

Oh, sorry, I was forgetting myself. C'mere, Texas Toast, you rascal, let me give you a big hug!

[David Walser]

TM - There are many potential financial incentives for prolonging life and for shortening it. For example, my father's pension stops the moment he does. Keeping him alive would keep the pension money flowing to my mother. (This would most likely be offset the medical cost of keeping him alive. And, by the way, my Dad's doing just fine. I appreciate the concern.) A large life insurance policy could create significant incentive to shorten someone's life -- particularly if it's a term policy about to expire.

The tax law also can provide such incentives. The estate tax goes away in 2010 only to reappear later. Lot's of families may be tempted to keep grandpa alive for another few months until estate tax repeal is effective. I know of a situation where if a man had died in an auto accident, his large capital loss would have expired with him. Quick action by the paramedics "saved" him. His wife kept him alive on a respirator for a few months until the following year where his capital loss was available to offset a large capital gain that was recognized (from an installment sale made a few year earlier). Hey, it saved the family more than a million dollars in income taxes.

So, yea, I'd say financial considerations sometimes influence a family's opinion as to what should be done.