Judge Makes USF Professor Schiavo's Guardian Ad Litem

AP via TBO.com ^ | November 1, 2003 | David Sommer

[Pan_Yans Wife]

A University of South Florida health law professor will act as Terri Schiavo's guardian ad litem for the specific issue of whether she can ever eat normally, a judge ruled late Friday.

Jay Wolfson, who has served on the board of directors at Tampa General Hospital and who teaches health law, medicine and other subjects at USF, Florida State University and Stetson University College of Law, was appointed by Chief Pinellas-Pasco Circuit Judge David Demers.

Demers was directed to make the appointment as part of the controversial ``Terri's Law'' statute, which was quickly passed by the Legislature on Oct. 21. The law granted Gov. Jeb Bush the power to override a court order and have Terri Schiavo's feeding tube reinserted after the brain- damaged woman went almost a week without food and water.

In an order announced shortly before 5 p.m. Friday, Demers said he had to rely on a pleading Bush had previously filed in federal court to decide what Wolfson's job should be.

Governor's Words

The Legislature provided little guidance in the wording of Terri's Law, Demers said, but the governor's stated concerns about the case clearly center on the issue of whether Terri Schiavo ``might be able to feed naturally once the feeding tube is disconnected.''

At no point did the governor question whether the tube should have been disconnected Oct. 15, but Bush did ask a federal judge to ``consider whether the ward should undergo swallow tests and therapy'' before removal of the feeding tube, Demers wrote.

The judge also pointed out that the trial judge, who in February 2000 ruled that Terri Schiavo would not want to be kept alive with a feeding tube, has addressed the issue of swallowing and eating normally and concluded she will never be able to do so.

According to the records cited by Demers, Terri Schiavo was last tested for the ability to swallow in 1992.

Demers gave Wolfson 30 days to investigate Terri Schiavo's case and report back to the governor, with a copy to be provided to Circuit Judge George Greer, the original trial judge.

``The report will specifically address the feasibility and value of swallow tests for this ward and the feasibility and value of swallow therapy,'' Demers' order states.

Middle Ground

Wolfson could not be reached at his office late Friday. Previously, he said he would not be commenting on his duties as guardian ad litem.

Attorneys for Michael Schiavo, who wants his wife's feedings halted, and Bob and Mary Schindler, who want their daughter kept alive, also could not be reached.

Terri Schiavo, 39, has been in what her husband's doctors term a persistent vegetative state since suffering heart failure that cut off oxygen to her brain in 1990.

After a nonjury trial, Greer ruled Terri Schiavo made statements before falling ill indicating she would not want to be kept alive in such a state with no hope of recovery.

The Schindlers dispute that and contend their daughter could improve with therapy.

Wolfson's appointment and mission fall somewhere in between the desires of both sides as stated in recent court filings.

Last week, Demers asked the two sides to comment on his proposal to appoint Wolfson and offered them the option of agreeing to a different guardian ad litem.

George Felos, attorney for Michael Schiavo, said his client has no objection to Wolfson's qualifications, but objected to any appointment.

Michael Schiavo has sued the governor and asked a court to declare Terri's Law unconstitutional. If the law is unconstitutional, Wolfson's appointment is unconstitutional, Felos said.

In his order, Demers said Wolfson should stop work if Terri's Law is found to be unconstitutional.

Pat Anderson, the Schindlers' attorney, objected to Wolfson and accused him of being biased against Terri's Law - and therefore Terri Schiavo - based on a brief television interview the professor gave last week.

In the interview, Wolfson said that if Terri's Law stands the constitutional test of the courts, ``then it certainly implies that the executive of our state has the prerogative of injecting the state into your life or your family member's life,'' according to a transcript provided by Anderson.

In his order, Demers said Wolfson did not express opposition to Terri's Law.

Felos and Anderson also differed on what they thought Wolfson should be assigned to do.

Felos wanted his activities limited to the issue of whether the tube removal was lawful.

Anderson wanted Wolfson to look at a broad range of issues, including whether Terri Schiavo would want a divorce because her husband lives with another woman and has fathered a child with her, with a second on the way.

Demers said Anderson's request was too broad and Felos' was too narrow.

[longtermmemmory]

Law professors are refugees from the legal profession.

The fact that this professor is biased against terri's law is not good.

He should have been voidired as to any bias he may have on "vegitative" states.

I wonder how he will answer the "would a woman whose husband is living with another woman and has a child with that other woman, want a divorce from that husband"?

Seems like a divorce from the husband would be the compromise that leaves everyone equally miserable.

[Pan_Yans Wife]

I suspect that there is no way the Schindlers and Schiavo could ever come to agreement on the right guardian, thus the court appointed one. I do not know what else could be done, under the circumstances.

[longtermmemmory]

They should have picked a lawyer who does this stuff every day. Not some professor.

[Pan_Yans Wife]

But Florida is lacking in the number of people who wish to be included in the pool of guardian ad litem. Anyone can be one, if they fit the criteria. Apparently the professor does fit the criteria.

[longtermmemmory]

In incapacity cases I believe you have to be a lawyer. This particular case it would probably have to be. The question for this professor is whether he will use this law he says he disagrees with to protect terri?

If this law affords him the opportunity to petition for a divorce, will he use it?


(is this professor a member of the ACLU?)

[Pan_Yans Wife]

If this law affords him the opportunity to petition for a divorce, will he use it?

The judge has already said, when the Schindler attorney brought up the point of divorce, that was too broad a reading of the guardian's powers.

I think the judge is trying to limit the guardian to only the issue at hand.

[longtermmemmory]

as an attorney at litem, I had that ability as a matter of course. This is troubling as it may demonstrate prejudice by the judge to "affirm" his prior ruling.

[Pan_Yans Wife]

ping

[Pan_Yans Wife]

In his order, Demers said Wolfson should stop work if Terri's Law is found to be unconstitutional.

I read this to say that the Legislature's action, as well as the Governor's, have actually interfered in the Schiavo case. If the law is proven unconstitutional, doesn't this then mean that all of the actions by the legislature and executive of Florida become null and void, Wolfson is removed, and we are back to the point where the feeding tube is removed?

[Cicero]

They haven't tried rehabilitative therapy or oral feeding for ten years. Now the judge expects a lawyer to investigate the whole situation and check whether she can be fed by the mouth within one month.

Does this mean that they will hold a spoon up to her mouth and, if she spills it, declare that she's unable to eat? It wouldn't surprise me. She is back in the same hospice that agreed not to give her proper medical treatment before. Moreover, according to one article published last year, Schiavo's lawyer, who is helping him kill his wife, is the head of this hospice's board of directors, a clear and scandalous conflict of interest, if true. That means that the medical personnel at the hospice know they will displease the boss if they do anything to save her.

[longtermmemmory]

Which is what I believe this judge is setting up.

This judge was basically slapped in the face and his authority limited by a change in law. (enacting laws is what the legislature is supposed to do.)

I believe the judges limitation of the attorney ad litem is an appealable issue. An attorney is supposed to be a zelous advocate, this judge may have made this attorney an advocate in name only. No teeth to do anything.

[Pan_Yans Wife]

They haven't tried rehabilitative therapy or oral feeding for ten years. Now the judge expects a lawyer to investigate the whole situation and check whether she can be fed by the mouth within one month.

I don't see how there couldn't be time constraints placed upon Wolfson. He has a very narrow duty to the court, and must comply with the court's deadline.

The true battle is the constitutionality of the bill that the legislature passed. That is where the energy should focus, today.

[Pan_Yans Wife]

If it is an appealable issue, are the Schindler's and their attorney pursuing it?

And, if they win, does this then mean Wolfson is removed, and no one replaces him? Does Schiavo go back to being the guardian?

[Daus]

Does this mean that they will hold a spoon up to her mouth and, if she spills it, declare that she's unable to eat? It wouldn't surprise me.

A 'swallow study' is generally done with a barium laced liquid, placed into the patients mouth and observed on XRay by a Speech Pathologist and a Radiologist. They are watching to see if the natural swallow reflex is executed and to make sure the liquid doesn't shoot straight into the patients lungs or pool other places in the throat.

Can you tell I married a Speech Pathologist? :)

[longtermmemmory]

IF they win:

Guardian's authority expanded.
Appointment may be revisited

Attorney ad litem is different from guardian.
Schiavo is still the legal guardian, he just has an attorney who is looking over his sholder to protect terri. In theory.

This Wolfson strikes me as a penny pincher.

[Pan_Yans Wife]

This Wolfson strikes me as a penny pincher.

What do you mean by that?

[longtermmemmory]

previous bio was posted here. Have to run off will post later.

[TheOtherOne]

Is there anyone here who will actually change their mind about Terri based on what this new Guardian Ad Litem concludes to the court.

I do not see anyone here who was against the feeding tube being removed suddenly agreeing with the conclusion that she cannot swallow.

[ampat]

A lawyer and college professor? What a combination.