Skip to comments.Terri Schiavo Case: Creditable Witnesses & the 1st Guardian
Posted on 11/04/2003 9:07:14 PM PST by flattorney
The Guardian - In 1998, Terri Schiavo's first guardian ad litem filed a report on her case. It makes for interesting reading today.
THE TERRI SCHIAVO CASE continues to take dramatic twists and turns. Even as Michael Schiavo attempts to have Terri's Law declared unconstitutional, pursuant to the law's requirements, a judge has appointed a guardian ad litem--Professor Jay Wolfson, of the College of Public Health at the University of South Florida in Tampa--to represent Terri's interests.
There has been some confusion as to whether Wolfson replaces Terri's quasi-estranged husband Michael Schiavo as guardian of Terri's person. (I use the term "quasi-estranged" because Schiavo effectively shattered the sanctity their marriage years ago by entering a committed relationship with another woman and starting a family with her.) He does not.
Wolfson's sole responsibilities are to determine whether Terri should be allowed a swallow test, whether she should be provided rehabilitation, and to write a report with his recommendations about these matters--all within 30 days. In the meantime, Schiavo remains fully in control over Terri' life and care (or the lack thereof)--with the exception that he cannot, for now, remove her tube-supplied food and water.
A little known but interesting facet of this case is that Wolfson is not the first guardian ad litem appointed to represent Terri's interests. When Schiavo first petitioned the court for permission to dehydrate his wife in 1998, he properly admitted that he had two significant conflicts of interest: He was likely to want to remarry and if Terri died, he would inherit the more than $700,000 then on deposit in her trust account. (For those who have not followed this case, Terri received the money in a medical malpractice lawsuit.)
Because of these conflicts of interest, the Probate Court appointed Richard L. Pearse Jr. of Clearwater, Florida, as Terri's guardian ad litem and instructed him to investigate the matter and report back with a recommendation. Pearse filed his report with the court on December 28, 1998 urging that the court deny the petition to remove Terri's food and water.
Considering that the Pearse's report was written long before the Schiavo case became an international cause celebre, it makes interesting reading. The guardian ad litem supported Schiavo's position on some points and the Schindlers on others. The following are its pertinent portions:
Pearse unambiguously accepted the diagnosis that Terri is in a persistent vegetative state (PVS) based on the opinions of two doctors, one who treated her and one who consulted on the case. This diagnoses was--and remains-- disputed by Terri's parents, Bob and Mary Schindler. Indeed, subsequent to Pearse's report, the Schindlers energetically attempted to garner evidence that she is conscious.
To some degree, they have succeeded: Four board certified neurologists, two board certified internists, one neuro-psychologist, and two speech pathologists have testified in person or by affidavit that Terri is not PVS. These opinions were reinforced by the affidavits of three nurses who cared for Terri in the mid-1990s and who claim to have observed her being interactive. Moreover, millions have viewed videos of Terri and been shocked by the extent to which she appears to aware and awake. (The courts have ruled consistently that Terri is PVS.)
Pearse claimed that Terri has muscle contractures despite receiving "regular physical therapy." He may have assumed that she received such care--it is routine for bedridden patients, after all. Yet, according to Patricia Anderson, the Schindler's attorney, there are no entries indicating that PT was ever performed in Terri's chart after 1992. Indeed, in 1998, when a new doctor urged Schiavo to approve an evaluation of Terri so that a plan of physical therapy could be developed, he refused to permit it.
Pearse confirmed the charge by the Schindlers that once the medical malpractice money was in the bank, Schiavo began to refuse medical treatment for Terri, writing:
After February 1993, Mr. Schiavo's attitude concerning treatment for the ward apparently changed. Early in 1994, for example, he refused to consent to treat an infection from which the ward was then suffering and ordered that she not be resuscitated in the event of cardiac arrest. The nursing home where she resided at that time sought to intervene, which ultimately led the ward's husband to reverse his decision and authorize antibiotic treatment. Perhaps because of the intervention by the home, Schiavo soon moved Terri to a different nursing facility.
Schiavo admitted to the guardian ad litem that he had at least "two romantic involvements" after Terri's collapse. "It is apparent to me," Pearse wrote the court, "that he has reached a point that he has no hope of the ward's recovery and wants to get on with his own life." (To say the least. At the time of Pearse's investigation, Schiavo was already living with the woman who would become the mother of his children.)
Contrary to Schiavo's allegation on Larry King last week that the Schindlers "really basically didn't have any care with Terri," Pearse painted a vivid picture of parents worried deeply about the quality of care their daughter was receiving and profoundly committed to remaining involved in her life:
From the time of the ward's accident, the ward's parents have been vitally interested in her welfare . . . After the falling out between the ward's parents and her husband, Mr. and Mrs. Schindler pursued removal litigation in an effort to have Mr. Schiavo removed as their daughter's guardian and to have themselves appointed guardians of her person . . . They have also pursued litigation against him to gain access to medical and financial information concerning the ward which was withheld by the ward's husband, with only partial success.
They express extreme frustration with the current situation in which they have virtually no input into the decision making process concerning their own daughter. The ward's parents visit her regularly but at times when they won't have to confront Mr. Schiavo. Moreover, rather than the Schindlers not being interested in seeing Terri, as was asserted on Larry King, Pearse noted that it was Schiavo who "has isolated the ward from her parents."
As of April 4, 1998, Terri's trust fund held $713,828.85. "Thus," wrote Pearse, "Mr. Schiavo will realize a substantial and fairly immediate financial gain if his application for withdrawal of life support [tube-supplied food and water] is granted." (Schiavo now claims that there is only $50,000 left in the account, the bulk of the money having gone to pay his attorneys.)
At the time of the report, only Schiavo claimed that Terri would not wish to be kept alive if severely incapacitated. "However," Pearse opined, "his credibility is necessarily adversely affected by the obvious financial benefit to him of being the ward's sole heir at law in the event of her death while still married to him. Her death also permits him to get on with his own life." (Subsequent to the filing of the report, and perhaps in response to it, Schiavo's brother and sister-in-law came forward to claim Terri made similar statements in their presence. In this regard it is worth noting that no member of Terri's family, or any of her friends, recall her ever making any such statements to them.)
Pearse concluded, "Given the inherent problems already mentioned, together with the fact that the ward has been maintained the life support measures sought to be withdrawn for the past 8 years, it is the recommendation of the guardian ad litem that the petition for removal be denied."
UNFORTUNATELY, Pearse's opinion held scant sway with the court. After filing his report, he requested further court instructions to authorize him to continue to represent Terri as guardian ad litem. Schiavo's attorney, George Felos objected, and attempted to have Pearse removed for bias. This attempt failed but after his report was received, Pearse was discharged from participating any further in the case. And despite Schiavo's continuing conflicts of interest--which only deepened on the personal level as he sired children--no other guardian ad litem was ever appointed to represent Terri during the years of litigation, proceedings that culminated in an October 15, 2003 court order requiring Terri Schiavo to be deprived of all water and food toward the end that she dehydrate to death. ----------- Wesley J. Smith is a senior fellow at the Discovery Institute and an attorney for the International Task Force on Euthanasia and Assisted Suicide. His current book is the updated and revised "Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder."
BTW, has anyone posted a thread about Terri's guardianship hearing tomorrow?
Whenever Wesley J. Smith addresses this subject, he positively ROCKS.
great post. thanks.
THIS COURT is criminal. It ONLY listens to the testimony of Michael and his friends.
This court TRUSTS MICHAEL (that they were happily married, and NOT about to divorce)
This court TRUSTS MICHAEL (that he did not strangle her)
This court TRUSTS MICHAEL (that she had bulemia)
This court TRUSTS MICHAEL (that Terri would prefer to die)
... here are TERRI's OWN WORDS:
" Where there's life, there's hope."
By MARY JO MELONE, Times Staff Writer
Published November 6, 2003
On the crowded stage where the melodrama about Terri Schiavo is played, Richard Pearse Jr. had a smallish role.
The Clearwater lawyer served as Schiavo's guardian ad litem for a year, from the middle of 1998 to 1999. His job was to represent the young woman's interests in one of the hearings where Schiavo's husband sought removal of her feeding tube.
Pearse investigated her case. He interviewed her relatives. He read the medical records.
Then, in December 1998, he recommended to the judge that the feeding tube remain.
His reasons have become familiar to us all:
Terri Schiavo's own wishes were unclear.
Her husband had a substantial conflict of interest, Pearse said. If the tube were removed and she died, Michael Schiavo stood to inherit $700,000 left over from a malpractice settlement. Pearse also was troubled by Schiavo's conduct. He had stopped trying to get therapy for his wife after the money came through, Pearse said.
Pearse also noted that Terri Schiavo's parents, Bob and Mary Schindler, had a potential conflict. If Michael divorced his wife and the Schindlers took over her care, they would stand to inherit the $700,000.
Pearse's recommendations went into the thick file of the Schiavo case. January 2000 brought a weeklong trial. When it ended, Pinellas Circuit Judge George Greer drew other conclusions. Terri Schiavo was in a persistent vegetative state, he said. There was no doubt of that. Her feeding tube could be removed.
I went back to Pearse earlier this week because the feeding tube is still the issue of the hour. The intervention of the governor and Legislature saw to that.
I wanted to test the strength of my own opinions. Was I wrong to side with Michael Schiavo?
Was I missing something more clear to somebody on the inside of the case, like Pearse?
Well, yes, I was. I didn't know that Pearse's views had changed since 1998. He no longer opposes the removal of Terri Schiavo's feeding tube.
Most of the medical testimony, given at trial and after Pearse issued his recommendations, concluded she would never recover.
The primary reason for Michael Schiavo's conflict of interest is gone. Only about $50,000 of the original $700,000 settlement remains. The rest reportedly went to Terri Schiavo's care and legal fees.
The case itself has been closely scrutinized by judge after judge, and their findings have been unanimous. The judges thought they knew what Terri Schiavo would have wanted.
They also found Michael Schiavo credible. Even with a conflict of interest, Pearse said, he could be right about his wife's wishes.
One day, this all must stop.
Pearse has a word for what is needed.
That's what courts are supposed to provide, Pearse said. They are supposed to sort through our biggest disputes and put them to rest.
Once the governor and Legislature stepped in and pushed through Terri's Law, the courts were denied their usual role.
Pearse called the law stunningly bad policy.
Note to the GOP: Pearse is a Republican.
He predicted, as others have, that Terri's Law will be struck down as unconstitutional, a case of unequal protection under the law. The concept means that it's illegal to give Terri Schiavo a right that others don't get. Terri's Law was written to cover her situation and hers alone.
The fight now is on two fronts.
In one court case, Michael Schiavo mounts a challenge to Terri's Law, before Pinellas Circuit Judge W. Douglas Baird.
The other battle is before Judge Greer, as it has been for years. Terri Schiavo's parents are asking, as they have repeatedly, for the ouster of Michael Schiavo as his wife's guardian. Like Pearse, the rest of us can only watch.
- You can reach Mary Jo Melone at firstname.lastname@example.org or 813 226-3402.
WHAT? So because Schiavo did exactly what the guardian ad litem was afraid he would do - use the money for his own interests - now it's ok to kill her. Yeah right.
The whole thing STINKS to high Heaven!!! And frankly... knowing what I now know about Mikey and his motives for wanting Terri dead and immediately cremated, I'm beginning to doubt that she can ever be saved!!!
As I see it
By Frank Attkisson
Recently, the Florida Legislature became involved with the Terri Schiavo situation. Because of the significance of the case, and as a prime co-sponsor in the Florida House of the resulting bill, I want to share my view and reasoning for my support of the bill.
Initially, most would look at this as a judicial issue and feel that the Legislature should stay out of it. In this case, we must examine the laws that the courts have interpreted to see if we, as Floridians, truly want these laws controlling our families and individuals in the matter of death.
As I looked at the case I saw three troubling issues.
First, an individual having the responsibility for life or death decisions with regard to a family member must be unbiased and without conflict in the process. The allegation of money being left for the surviving spouse in this case shows a potential conflict of interest that should be removed.
Second, it is known that Mr. Schiavo has a fiancée who has been living with him for at least the last 6 years and who will soon bear a second child fathered by him.
What woman would want an individual making life or death decisions when they have to factor in their statutory responsibilities to other children they have fathered during the illness. This at least calls for an independent guardian ad litem to review the situation, which is what this legislation does. What woman would want an adulterous husband who has been living in this situation for the past 6 years making a life or death decision on her behalf? She is not capable of asking for a divorce, much less requesting another guardian.
Third, Floridas contract law doesnt allow verbal promises or intent to overcome specific wording of a contract or for an individual to make a verbal statement of his intent to leave assets to an individual; in this case, life is at stake instead of property and our statutes permit oral statements to determine whether someone lives or dies. Yet, in this case we allow a simple statement made following an emotional movie some 15 years ago to be a controlling factor of the individuals intent and the statement was not even mentioned in the previous law suit when he stated he would care for her until she dies.
Family members must be allowed to make personal decisions concerning their loved ones when their loved ones are not able to make the decisions on their own. We owe it to the individual to ensure that the decision maker is unbiased and free of conflict when he or she must make the call.
The facts raised enough questions that the Legislature felt compelled to act to make sure our most vulnerable citizens have every opportunity to live and have rehabilitation in the absence of a written advanced directive stating their wishes. The life God gives us is precious and governmental laws should never be used to take it in this situation.
Frank Attkisson, R-Kissimmee, is state representative for District 79, which covers portions of Okeechobeee, Orange and Osceola counties.
I/ we do not belive you, Harv.
Could you prove yourself to the fine freepers here please? I think we would all agree that while you call most of the freepers here posting on Terri's case ignorant of the facts, we indeed do like people ,who claim to be "experts" ,to be able to back up what they say.
You refuse to do so.. why?
We/I are waiting ... Will you run and hide again ,or answer the question?
Speaking of Saveterri1 ... where did he go anyway?
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