Comments on: An ethical view rather than a legal view

By: Maurice Bernstein, M.D.

Maurice Bernstein, M.D. — Sun, 17 Apr 2005 01:14:16 +0000

I would like to respond to RGL’s comment to me on March 21st. It may be different in Florida, but in California a legal surrogate “speaks” for the patient. There may be no written instructions in terms of a living will but presumably the surrogate is fully aware of the general goals and wishes of the patient. When the patient is incompetent and a decision has to be made, the legal surrogate makes the decision, period! If Michael was here in California with his wife’s tragic persistent vegetative state condition, it would be perfectly reasonable for Michael to wait a number of years before terminating life support in hopes that Terri would recover but then when recovery appeared hopeless and based on what he understood what Terri would have wanted, he would then request the tube feedings (medical life support) to be discontinued. Now there is an exception as decided by the California Supreme Court in the Wendland case. If the patient is NOT in a persistent vegetative state but in a “minimally conscious state” AND the patient’s conservator was assigned by the court, then the conservator must demonstrate “clear and convincing” evidence ( a specifically written living will requesting termination of food and fluid ) before the termination can be ordered. The California Supreme Court specifically stated the “clear and convincing” evidence from either a court appointed conservator or other legal surrogate (durable power of attorney for health care) was NOT required in a persistent vegetative state patient. ..Maurice.

By: Curious JD

Curious JD — Tue, 22 Mar 2005 07:25:56 +0000

It has already been resolved by the court, time and again. For someone who claims repeatedly to be a libertarian, your belief in the principles of limited government and limited intervention from the federal government seems to be lacking. This is a state law issue. One that has been resolved repeatedly by the Florida state courts.

The charges are made against Republicans because Republicans are the ones who most fervently invoke state’s rights on almost every other issue.

By: RGL

RGL — Mon, 21 Mar 2005 23:07:43 +0000

JD, there are circumstances in this case that make me skeptical, without any second-guessing as you charge. It took a long seven years for Michael to support his claim when he could have done it sooner, after he won a $1 million lawusit, and after he stasrted living with a common-law wife with whom he has two children. Since, for practical purposes, he had no further meaningful relationship with Terri, and since his parents-in-law were willing to take care of her, at their expense, why would he want to create all this controversy?

Faced with all these elements, there are indeed strong reasons to raise doubts about the veracity of his claim.
No evidence, in other words, beyond any reasonble doubt.
All we can do is accept Michael Schiavo at his word, with no way of knowing whether he is telling the truth or not.

Cries of politics have been raised against the Republicans for their involvement in this issue, but the entire Senate voted overwhelmingly in favor of having this case reviewed by a federal court, as did almost 1/2 of the Democrats in the House. It is, in other words, a bipartisan effort with no bias except for those who want to pigeonhole every public discussion into a conservative witch hunt.

I don’t know why JD would bring the problem of malpractice, since this has nothing to do with what we are discussing. This is absolutely out of the question, presented chiefly as a rotten red herring. Let’s stick to the issues, which will be resolved by the court.

By: Curious JD

Curious JD — Mon, 21 Mar 2005 20:06:31 +0000

RGL,

Your position is made clear by the phrase “so called intent of his wife”, but really, who are we to suggest he’s wrong? If your wife did not have a living will, but had made her feelings known to you, wouldn’t you want to be the one to make that decision? Do you really think that her parents would automatically agree with you? I don’t know a couple, healthy or not, that hasn’t had this discussion.

This is the conflict in nearly every case like this, or really any case where someone dies intestate. But the law in almost every state favors the spouse over the family, to the family’s chagrin almost every time. It’s public policy, and if you disagree you should advocate legislative changes.

For you to second guess this man without ever having met either of them seems presumptuous at best.

I realize the malpractice suit shades your judgment considerably, but try and put it aside.

Also, is this what conservatism has become, where Republicans in Congress want to invade what is clearly a state law matter on each individual case?

By: RGL

RGL — Mon, 21 Mar 2005 18:27:06 +0000

Dr. Bernstein, the problem here is the patient left no living will and Michael Schiavo invoked the so-called intent of his wife not to live in a vegetative state seven years after the neurological incident that left her brain-damaged. So, where is the “autonomous request” about this unwanted treatment? Terri was in good health before her apparent massive brain attack, and while we all believe living wills are important, I feel skeptical about a young, healthy woman expressing that intent at that stage in her life. The husband’s claim, in the absence of a living will, makes me dubious about that request.

Concerning ARF’s comments and the criticisms against them, an article in WSJ.com today, ‘Terri Schiavo and the Law,’ sheds a lot of light about aspects of this case that many of us from the outside have not known before. After reading it, I think ARF’s take on this case may not be so far-fetched after all. Far be it for me to impute ill motives by Mr. Schiavo, but this article is enlightening.

Any way, after a judge in Tampa renders his decision this afternoon, there will be a lot more to talk and argue about. No matter how much we disgree with one another, I hope we can keep this dialogue alive.

By: Maurice Bernstein, M.D.

Maurice Bernstein, M.D. — Mon, 21 Mar 2005 02:33:34 +0000

I will go along with the majority and not look to the “vital organ” definition as the one which we should use in the case of a patient requesting the termination of life support. I would feel comfortable removing life support with the intent to be following the patient’s autonomous request about unwanted treatment with my understanding that if the patient dies, it will be the underlying disease which is responsible. That will be my intent. I don’t consider the patient’s request a matter of “suicide” nor do I think that my removing the life-support for a life threatening illness at the patient’s request represents “assisted-suicide”.

By: zword md

zword md — Sun, 20 Mar 2005 18:09:56 +0000

I assume when Dr. Centor says he agrees with the post he means that he agrees with the perspective that life-sustaining therapies represent “vital organs”. It is unclear from Dr. Bernstein’s post, and especially from his follow-up here in the comments section, whether he agrees with this view or is simply offering it as one of many alternatives.
It seems to me that the implications of such a view are problematic and defy common sense. Take for example dialysis. Most dialysis patients have end-stage renal disease and will die without it. In the case of intermittent hemodialysis, this means a machine that they are connected to for about 12 of the 168 hours in each week. To say that such a machine represents one of their vital organs is counter-intuitive at best.
Or take the contrast between a young asthmatic and a person with a cervical cord injury. Studies of “weaning parameters” and success of extubation in critically ill patients have shown that we, as physicians, cannot reliably predict who will die and who will not if a ventilator is discontinued. Patients with an injury to the cervical spinal cord, brainstem or bilateral phrenic nerves are about the only ones I can think of in which death is absolutely certain without the machine. So, using this “vital organ” perspective, discontinuing the vent would be acceptable in, for example, an otherwise healthy 22 year old asthmatic who was thereby throwing away 60+ years of relatively healthy life. But it would not be acceptable in a person with a spinal cord injury that dooms them to live out their days connected to multiple machines and unable to move their body below the head.
This seems a strange place to draw the line, which probably explains why, as Dr. Bernstein notes, it is not favored by most mainstream bioethecists.

By: Frank

Frank — Sat, 19 Mar 2005 21:36:58 +0000

Follow the Facts
Arf–regardless of your position on the ethics,legality,and morality of the Schiavo tradgedy, your judgemental, inflammatory and inaccurate portrayal of the facts does little to bring justice to the table–The following web site has a balanced(I believe) summary of the known facts, history and litigation–This is the most litigated “right to die” case in history 9I stopped counting the numder of hearings)–while you might not be happy with the outcome this is a case where the advesarial system was tested,retested and tested again–factual information is in little doubt–there was aggressive and competent litigation from all parties. You also dramatically underestimate the quality and thoroughness of the legal representation involved in those opposing the husbands actions–If your assertions are correct one can only assume that the parent’s attorneys, the State’s attorneys, and numerous trial and appellate judges failed miserably in their tasks. If nothing else, this is not so much a victory for the plaintiff as for due process. By the way, I am not an attorney.

http://abstractappeal.com/schiavo/infopage.html

By: Maurice Bernstein, M.D.

Maurice Bernstein, M.D. — Sat, 19 Mar 2005 20:25:06 +0000

I should make it clear (and I only used the word “hazy” in my piece)that the concept of the removal of an “artifical organ” that was functioning as the life-supporting natural organ representing a “killimg” is NOT generally considered and is NOT the current ethical consensus. However, this view has been discussed in ethics literature in the past. The currently, the ethical consensus accepted as distinguishing betwee “killing” or “letting die” is simply that of the intent of the one performing the act. I also should make clear that the word “killing” is a term used as the opposite of the condition where the patient is dying because of the lethal effect of the underlying illness (“letting die”). I don’t think the ethical view is that of a homicide if the patient cannot perform the act on his/her own. Whether one wants to conside this act “assisted suicide” depends on whether one wants to ignore that the act is NOT one of directly causing death but following the autonomous patient’s decision to stop unwanted treatment with the death being caused by the underlying illness.
In “assisted suicide” such as practiced in the state of Oregon, the immediate death is due directly to the pills prescribed and not due to the patient’s underlying illness. I hope this explains the current understanding of the issue. In the Schiavo case, the issue is not one of “killing”, it is simply one of a legal surrogate requesting that the patient’s wishes be followed regarding unwanted treatment. ..Maurice.

By: arf

arf — Sat, 19 Mar 2005 18:48:56 +0000

Follow the money.

After the husband badgered her about her weight and drove her self-image into the ground, she purged herself into profound hypokalemia and arrested, now the husband “cared” enough to…..well, find some parasites with law degrees to blame the FP for all this. Since she has a dramatic presentation, the jury awarded a million-plus.

The husband doesn’t get any of this money unless she dies.

Imagine if the money awarded was earmarked for her care and only her care. Went back upon her death….to the insurance, to the state, to a charity, whatever.

I bet the family wouldn’t care, and I bet the last parasite (the husband) would disappear real quick.

And we would not have heard of this case.