Posted on 04/01/2005 8:05:46 PM PST by FairOpinion
The finder of fact can give such weight to conflicting testimony as the finder of fact wishes. Greer was God, in practical effect. The abuse of discretion standard as a basis of appeal almost NEVER succeeds. You don't like it? Change the law.
They said the autopsy should be complete by June. I hope the man in charge of that isn't part of Florida's Satanic trilogy!
Florida statutes forbid the denial of food and water to disabled persons.
Florida's constitution expressly includes a right of privacy, and the Florida Supreme Court held in In re Browning that the right of privacy includes the right to refuse medical care, particularly life-sustaining medical care. Including a feeding tube. That's every Florida citizen's right.
Because this right is considered fundamental, by virtue of its inclusion in the constitution, it is not very difficult to exercise. Indeed, In re Browning decided that, for Floridians, the right could be exercised in writing or orally. If the right could be exercised only in writing, then it would be a weaker right, requiring you to jump through procedural hoops to exercise it. By comparison, a decision-making right that allows you to make a decision by announcing it is a stronger right.
So the decision that you can exercise the right to refuse medical treatment by stating your desires orally is based on the right's importance.
Now, if you can exercise this right orally, can an oral statement negate a prior written wish? Yes. In fact, if you read the facts of the Browning case, you will see that Estelle Browning had executed a document in which she declared she did not wish to be maintained by a feeding tube under certain circumstances, and the state government intervened in her case and argued that her written wishes should not be followed because it was possible that, later, she orally made a decision to the contrary.
Think about that. She said no to a feeding tube. The state embraced the notion she could have revoked that wish through oral statements and argued that because she may have done that, her written wishes should not be followed.
That didn't work -- the court made clear that it would not indulge presumptions someone did or did not say something. But the court indicated that had such oral statements been made, they would control.
So, yes, written wishes regarding end-of-life care can be orally revoked. At least in Florida. They just need to be proved by clear and convincing evidence.
For those who would rather look at a statute than dwell on constitutional principles, take a look at the Florida statute that governs this area. Section 765.104(1)(c) explains that an advance directive -- including a living will -- or the designation of a health care surrogate decisionmaker may be revoked "[b]y means of an oral expression of intent to amend or revoke." Now, keep in mind that the statutes enacted by the legislature cannot conflict with the rights provided in the state constitution, but it is certainly meaningful to see that the legislature has affirmatively recognized the signicance of oral declarations.
In Terri's case, the testimony of her husband and others (including her best friend) provided clear and convincing evidence of Terri's wishes to the Courts.
"Letting the "next of kin" "decide" to kill a person is homicide. That's what happened."
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Exactly.
"Licence to kill".
I guess it's OK to kill your next of kin, the judge will let you -- just don't kill any strangers, but as long as you are only killing your next of kin, it's legal.
But what bothers me is the way you have to spoon feed -- or force feed, not to make a pun -- the information to most people to get them to see the light. They just don't have the innate cynicism and curiosity to figure these things out on their own. I guess it's that "sheeple" thing.
"my understanding of Terri's position was that she had no standing, that her legal being is/was embodied in her Guardian. "
This is why it's a valid claim that her rights to due process were violated.
So, in other words, you don't have a problem with people making decisions for disabled people who are unable to reach those decisions on their own...as long as YOU agree with the decisions being made.
It was only after receiving MONEY that he "gave up."
Yes, for three years he did "everything" while he was pursuing a malpractice suit. He testified in court that he planned to take care of her for the rest of her life and it was estimated that she would live to be approximately 51 years old in her condition. During this initial therapy, she was able to say a few words, move her limbs and even do basic walking movements with a therapist on parallel bars.
Within a few months of settling the lawsuit, Michael STOPPED ALL THERAPY (including basic comfort therapy, like range-of-motion therapy to prevent her muscles from atrophying and stiffening) and stopped any medication for illnesses (although he did still allow pain medication). He demanded that she not have a TV on, and the radio could only be turned to one station. Nurses could not place a washcloth in her hand when her fingers began to curl ("therapy") or give her a wet washcloth to suck on. (All this according to several affadavits from nursing staff.)
He stopped this therapy without approval from the court (which he apparently needed, according to guardianship laws) and against the medical recommendations of Terri's doctors. After she did not die from a couple of urinary tract infections, he finally remembered four years later (yes, seven years after the accident) that she had once said that she would have wanted to die if she were ever in this situation. Without therapy, she had deteriorated, her muscles atrophied, limbs and appendages curled, etc.
Meanwhile, he did not file the annual plan of guardianship required by Florida guardianship laws, he did not file the annual financial reports required by law (he filed some years, but not all). He got a lawyer (Felos) who knew the system and was able to play a better game (using lawsuit money) than the Schindlers (using their own money to pay legal fees).
During court proceedings, the 2 Schiavo doctors said that Terri was PVS and the 2 Schindler doctors said she was not. The court appointed doctor (a right-to-die advocate) said PVS, and based on one extra vote on the PVS side, the judge found as "fact" that she was PVS. The court-appointed guardian recommended that Terri be given a swallowing test, but it was never done. No other tests (including MRI and PET scan) were approved by Michael, as the guardian who could approve medical tests and care.
I could go on, and on, and on, but you may be one of the 9% of respondents who seemed to agree that disabled persons should be put to death, although the poll did not specify how "disabled" you had to be to be worthless.
So, sorry for wasting your time and giving you a little bit of info. There is more out there if you care to read state and federal legal filings....
If you choose to believe MS is wonderful, it's your perogative.
Hmm - well, I wont touch on the nurse part - there are certainly curious things he did with syringes ---testified too
but lets get on to Her situation. Why not then just let her parents take her?
Of course he'd have to divorce her to marry his live in, and they couldn't marry in his church as a divorced man, and then there's the money in trust for Terri and a life ins pol?
Of course, we have to remember that he cared so much for her that, once he won the millions of dollars to "take care of her" he promptly ordered all therapy, stimulation, even medical treatment stopped...not even any more trips outdoors in her wheelchair. etc etc etc.
Hey, don't you have some papers to get notarized?
Sounds like something your liberal friends in Mass. are saying. I doubt that Zogby would do that. He is a liberal Democrat as is his brother. However, he does seem to take pride in his craft, with the exception of the 2004 election which he tried to slant toward Kerry.
You are exactly right!
And .. the stat that I find interesting is the 39% who disagreed there should be exceptions to the right of a spouse to act as a guardian for an incapacitated spouse.
The reason I thought it was interesting is that the 37-39% is approx the size of the HATE-BUSH crowd.
I would certainly hope a Judge would not go back to an offhand remark I made 10 or 20 years ago, and decide it was CLEAR and CONVINCING evidence that I would want to be STARVED and DEHYDRATED to death.
What proof do you have to support that?
The same type of proof that Michael Schiavo had regarding her "wishes": an eyewitness to her statements expressing her contemplations of a divorce prior to her collapse.
I found something of interest even though it may already have been posted from empirejournal.com. I had a quote from Michael schiavo on Larry King. I checked the CNN transcript to make sure I was getting from the primary source and this is what he said to Larry King
http://transcripts.cnn.com/TRANSCRIPTS/0503/18/lkl.01.html
KING: Do you understand how they feel?
M. SCHIAVO: Yes, I do. But this is not about them, it's about Terri. And I've also said that in court. WE DIDN'T KNOW WHAT TERRI WANTED, but this is what WE want...
We the people must build a case against greer, felos, schiavo, and whoever else.
Terri ping! If anyone would like to be added to or removed from my Terri ping list, please let me know by FReepmail!
"They just need to be proved by clear and convincing evidence. "
But how can the judge consider MS's statement "clear and convincing evidence"?
One really has to be a voracious consumer of information to gain the sophistication to see the machinations of the MSM clearly, and most people are just not that interested.
Michael had witnesses...you know, legal stuff.
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