Wisconsin Lawyer Magazine
Vol. 78, No. 6, June 2005

The Schiavo Case in Wisconsin

Sidebars:

• Advance Directives Record Individuals' Wishes
• Advance Directives At-a-Glance

by Robyn S. Shapiro

he public spectacle encircling the tragic case of Theresa Marie (Terri) Schiavo leaves in its wake not only profound ethical questions for all of us but important legal issues for Wisconsin attorneys. This article outlines the facts and legal issues of the Schiavo case and examines how such a case might have been decided in Wisconsin.

Factual Background and Legal History of the Schiavo Case

Forty-one-year-old Terri Schiavo died on March 31, 2005, 13 days after her feeding tube was removed and 15 years after she fell into a persistent vegetative state. That condition resulted from a heart attack that, in turn, probably arose from a potassium imbalance related to an eating disorder. A persistent vegetative state is the complete and irreversible loss of all functions of the cerebral cortex. It results in a complete, chronic, and irreversible cessation of all cognitive functioning and consciousness and a complete lack of behavioral responses that indicate cognitive functioning, even though autonomic functions continue. Due to Terri Schiavo's severe brain injury, which prevented her from ingesting and swallowing food and water, she required nourishment and hydration artificially administered through tubes.

Michael Schiavo, Terri Schiavo's husband and court-appointed guardian, authorized both traditional and experimental therapies for Terri Schiavo over a three-year period before accepting her neurologists' diagnosis of irreversible persistent vegetative state. At that point, he concluded that his wife would not wish to be kept alive indefinitely in her confirmed permanent vegetative condition, given her prior statements such as "I don't want to be kept alive on a machine."

Based on his conclusion, Michael Schiavo petitioned a Florida state court for an order authorizing removal of his wife's feeding tube. In evaluating the petition, the court considered a Florida statute that requires "clear and convincing evidence that the [treatment termination] decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest." In 2001, the court granted Michael Schiavo's petition and authorized removal of Terri Schiavo's feeding tube, finding that there was clear and convincing evidence that she was in a persistent vegetative state and that she would have chosen to discontinue life-prolonging procedures under the circumstances. An appeals court affirmed this decision, and the Florida Supreme Court declined to review it.

Terri Schiavo's parents subsequently filed several court challenges, including an emergency motion for relief from the judgment. The parents claimed that they had newly discovered evidence related to a new treatment that they believed might restore cognitive function to Terri. In affirming the trial court's ruling denying that emergency motion, the court of appeals noted:

"Despite the irrefutable evidence that [Schiavo's] cerebral cortex has sustained irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained... But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband...."¹

Terri Schiavo's parents also sought help from the state and federal legislatures. In October 2003, the Florida Legislature passed a law that gave Gov. Jeb Bush the authority to order that Terri Schiavo's feeding tube be reinserted. However, in the fall of 2004, the Florida Supreme Court ruled that this law was an unconstitutional violation of the separation of powers because it permitted the executive branch to "interfere with the final judicial determination in a case."² The court also held that the law constituted an unconstitutional delegation of legislative power to the governor, in that it gave the governor "unbridled discretion" to make a decision about a citizen's constitutional rights.³

Following emergency sessions, the U.S. Congress passed and President Bush signed into law an "emergency measure" (S. 686) that provides that: "[t]he U.S. District Court for the Middle District of Florida shall have jurisdiction" to hear a suit "for the alleged violation of any right of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawing of food, fluids, or medical treatment necessary to sustain her life" and that granted Terri Schiavo's parents standing to bring the lawsuit. In addition, the law directed the court to "determine de novo any claim of a violation of any right of Theresa Marie Schiavo ... notwithstanding any prior State court determination."⁴

Despite the enactment of this "emergency measure," U.S. District Court Judge James Whittemore denied Terri Schiavo's parents' request for a temporary restraining order that would have required reinsertion of the feeding tube (which had been removed on March 18, 2005, pursuant to court order), finding that the parents had failed to demonstrate a substantial likelihood of success on the merits.⁵ Specifically, the judge found that with respect to the parents' due process claims, the case had been "exhaustively litigated," and all parties had been "represented by able counsel." In response to the allegation that Terri Schiavo's First Amendment rights to practice her religion had been violated by the state, the court held that there were no state actions involved because "neither Defendant Michael Schiavo nor Defendant Hospice are state actors." The parents lost their appeal of Judge Whittemore's ruling, as well as multiple subsequent legal appeals, and Terri Schiavo died on March 31, 2005.

The Schiavo Case in Wisconsin

The Wisconsin Supreme Court decisions in Lenz v. L.E. Phillips Career Development Center (In re Guardianship of L.W.)⁶ and Spahn v. Eisenberg (In re Guardianship & Protective Placement of Edna M.F.)⁷ provide insight as to how the Wisconsin courts would deal with a case similar to Terri Schiavo's case.

In L.W., the guardian of L.W., a 79-year-old man who had a history of chronic schizophrenia and became permanently vegetative after suffering a cardiac arrest, petitioned the court for a declaratory judgment as to whether the guardian or the court had the authority to consent to withdrawal of L.W.'s breathing support. The circuit court held that a guardian has the authority to consent to withdrawal of all life-sustaining treatment, including artificial nutrition and hydration, without prior court order or approval, if withdrawal is determined by the guardian to be in the ward's best interests. The Wisconsin Supreme Court affirmed the circuit court's opinion.

First, the court held that individuals have a right to refuse unwanted medical treatment and that this right extends to incompetent as well as competent individuals. This right, the court explained, emanates from the common law rights of self-determination and informed consent, which are personal liberties protected by the 14th Amendment, and the guarantee of liberty in the Wisconsin Constitution, and it is not lost or relinquished by the individual merely because he or she becomes incompetent. ⁸ This holding accords with the New Jersey Supreme Court's 1976 Karen Quinlan ruling,⁹ the U.S. Supreme Court's 1990 Nancy Cruzan ruling,¹⁰ and the Wisconsin advance directive statutes.¹¹

Second, the L.W. court held that the right to refuse unwanted medical treatment includes the right to refuse artificial nutrition and hydration. Again, this ruling followed the U.S. Supreme Court's holding in Cruzan, in which six of the nine justices explicitly found that no legal distinction could be made between artificially delivered fluids and nutrition and other medical interventions, such as ventilator support, and the other three justices found no constitutionally relevant distinction. In Cruzan, Justice O'Connor stated: "Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed `medical treatment,' it is clear they all involve some degree of intrusion and restraint.... Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water."¹²

Third, the L.W. court stated that "clear and convincing" evidence of the individual's treatment wishes is not required for treatment termination. Rather, the court explained, if the individual's wishes for treatment to be stopped are "clear," it is in the best interests of the patient to have those wishes followed, and if there is no or little evidence of the patient's wishes (as was true with respect to L.W.), the surrogate decisionmaker must determine what is in the patient's best interests by reference to more objective, societally shared criteria. Expanding on the notion of "best interests," the court noted that in some circumstances, it may be in a ward's best interests to have life-sustaining medical treatment withheld or withdrawn, because a dignified and natural death may outweigh the interest of maintaining physiological life as long as possible.

In response to arguments that treatment termination would be an unconstitutional deprivation of life, the L.W. court explained that when a ward is in a persistent vegetative state, the decision of the guardian to withhold or withdraw life-sustaining medical care, in furtherance of the ward's best interests, does not result in deprivation of life without due process, because due process initially is accorded through the guardianship appointment procedures. The withdrawal of life support does not deprive the ward of life but rather allows the disease to take its natural course.

Finally, the L.W. court held that while a guardian's decision to withhold or withdraw life-sustaining medical treatment from a ward who is in a persistent vegetative state does not require prior court approval, court review is available when any interested party objects to the guardian's decision. The guardian then has the burden to show, to a high degree of medical certainty, the existence of a persistent vegetative state and to show that the decision to withhold or withdraw treatment is in the ward's best interests and was made in good faith.

In Edna M.F., decided in 1997, Edna's guardian (her sister) filed a petition seeking an order confirming her decision to have artificial nutrition withheld from Edna, an incompetent 71-year-old woman with late stage Alzheimer's dementia who suffered a condition that approximated but did not meet the clinical definition of a persistent vegetative state (because she exhibited some minimal response). The guardian claimed that Edna would not want to live in the condition in which she suffered, citing the following factors, among others: 1) the fact that Edna had been a vibrant, gifted journalist; 2) a statement Edna had made to the effect that "I would rather die of cancer than lose my mind"; and 3) the consensus of her family and friends that she would not want to be kept alive in her condition.

The circuit court denied the guardian's petition, and the Wisconsin Supreme Court affirmed, holding that: 1) a guardian may direct the withdrawal of life-sustaining treatment, including nutrition and hydration, if the ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward; 2) if the ward is not in a persistent vegetative state, it is not in his or her best interests, as a matter of law, to withdraw life-sustaining treatment unless the ward has clearly indicated his or her desires; and 3) Edna's statement that she would prefer to die of cancer rather than lose her mind was not a sufficiently clear statement of intent to ground her guardian's authorization of treatment withdrawal, because that statement had been made more than 30 years previously and under different circumstances.

L.W. and Edna suggest that if Terri Schiavo's case had unfolded in Wisconsin, the following analysis would apply:

• Given that Terri Schiavo was in a persistent vegetative state, Michael Schiavo, Terri's legal guardian, would have had the authority, pursuant to L.W. and Edna, to direct the termination of her artificial nutrition and hydration, regardless of the weight of evidence about Terri's previously expressed wishes to forego life-sustaining procedures if she were to experience her current circumstances.

• While Michael Schiavo's decision to direct termination of Terri's artificial nutrition and hydration would not have required prior court approval, Terri Schiavo's parents would have been able to challenge Michael's decision in court, pursuant to L.W. At that point, Michael would have had the burden to show, to a high degree of medical certainty, the existence of a persistent vegetative state and to show that his decision to have Terri's artificial nutrition and hydration withdrawn was in Terri's best interests and made in good faith.

• In attempting to show that withdrawal of Terri Schiavo's artificial nutritional support would further her best interests, Michael Schiavo probably would have first proffered her statements suggesting that she would not want to be maintained in her current condition. This evidence of Terri's treatment wishes under the circumstances would not have been subjected to the rigorous "clear and convincing" standard incorporated in the Cruzan decision and in the Florida statute discussed above. This is because the L.W. court explicitly rejected the requirement of "clear and convincing" evidence of an individual's wishes concerning life-sustaining care as a condition of treatment withdrawal, observing that "relatively few individuals provide explicit written or oral instructions concerning their treatment preferences should they become incompetent.... This failure to act is not a decision to accept all treatment, nor should society's increasing ability to prolong the dying process make it one. To adopt the clear and convincing standard would doom many individuals to a prolonged vegetative state sustained in a life form by unwanted, perhaps detrimental, means that are contrary to the person's best interest."¹³

Additional factors that Michael Schiavo could have used to support his determination that withdrawal of Terri's artificial nutrition and hydration would further her best interests include those suggested by the L.W. court for assessing the value that continuation of life would have had for Terri (as opposed to the value that others would have found in the continuation of her life). Among these additional factors are: the degree of humiliation, dependence, and loss of dignity resulting from Terri's condition and treatment; her life expectancy and prognosis for recovery with and without the treatment; and the opinion of a bioethics committee.

Importantly, as noted by the L.W. court, best interest arguments against treatment termination could not be based on the need to protect Terri Schiavo from the potential pain and discomfort involved in the withdrawal of artificial nutrition and hydration. As explained by the L.W. court, this concern is inapplicable to individuals in a persistent vegetative state, because they cannot experience pain or discomfort.

Quoting the American Academy of Neurology, the L.W. court observed: "Persistent vegetative state patients do not have the capacity to experience pain or suffering. Pain and suffering are attributes of consciousness requiring cerebral cortical functioning, and patients who are permanently and completely unconscious cannot experience these symptoms ... Independent bases for the neurologic conclusion that persistent vegetative state patients do not experience pain or suffering [include the following:] [1] direct clinical experience ... [that] demonstrates that there is no behavioral indication of any awareness of pain or suffering ... [2] in all persistent vegetative state patients studied to date, post mortem examination reveals overwhelming bilateral damage to the cerebral hemispheres to a degree incompatible with consciousness or the capacity to experience pain or suffering ... [and] [3] recent data utilizing positron emission tomography indicates that the metabolic rate for glucose in the cerebral cortex is greatly reduced in persistent vegetative state patients to a degree incompatible with consciousness."¹⁴

Michael Schiavo also could have cited court opinions from several jurisdictions that have held that withdrawal of treatment from a persistently vegetative patient would further his or her best interests. For example, in Conservatorship of Drabick¹⁵ the California Court of Appeals authorized the removal of a nasogastric feeding tube from a 44-year-old man who was in a permanent vegetative state as a result of an auto accident, finding that the conservator's decision to terminate treatment was made in good faith and based on the patient's best interests. Similarly, in In re Conservatorship of Torres¹⁶ the Minnesota court authorized a conservator to order the removal of a persistently vegetative individual's respirator, since removal was in the individual's best interests.

Schiavo's Aftermath

The Schiavo case is likely to have several important implications for doctors, patients and their loved ones, attorneys, and others in Wisconsin and throughout the country.

Most importantly, the case highlights the importance of clearly expressing one's medical treatment preferences in advance of incapacity. Michael Schiavo's contention that Terri Schiavo previously expressed preferences not to be maintained under her current circumstances met with denials from her parents and skepticism from the courts and the public. In both L.W. and Edna, the Wisconsin Supreme Court stressed that if a patient's wishes are clear, "it is invariable as a matter of law, both common and statutory, that it is in the best interests of the patient to have those wishes honored."¹⁷ Honoring patients' clearly expressed wishes, without involvement of the media, the courts, the state legislature, the governor, the U.S. Congress, or the President, is respectful of patients' rights and of the appropriate roles of political leaders and institutions.

Endnotes

¹In re Guardianship of Schiavo, 851 So. 2d 182 (Fla. Dist. Ct. App. 2003).

²Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004).

³Specifically, the court said: "If the legislature with the assent of the Governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches. Also subordinated would be the rights of individuals, including the well established privacy right to self determination.... Vested rights could be stripped away based on popular clamor." Bush, 885 So. 2d at 337.

⁴The constitutionality of S. 686 is debatable, although a full discussion of this issue is beyond the scope of this article. In Plaut v. Spendthrift Farm Inc., 514 U.S. 211, 225-26 (1995), the U.S. Supreme Court clarified that Congress cannot simply overrule court decisions that it dislikes although it can prospectively amend federal statutes that have been judicially interpreted to its displeasure. In Plaut, the Court (per Justice Scalia, speaking for seven justices) invalidated a statute that in effect constituted an effort by Congress to direct the courts to reopen final judgments. Commitment to the rule of law requires that the political branches of government formulate and execute general policy in the form of legislation and implementing regulations, and that the courts apply that law to cases before them.

⁵Schiavo ex rel. Schindler v. Schiavo, slip op., No. 8: 05-CV-530-T-27TBM (M.D. Fla. Mar. 22, 2005).

⁶167 Wis. 2d 53, 482 N.W. 2d 60 (1992).

⁷210 Wis. 2d 557, 563 N.W. 2d 485 (1997).

⁸As noted by the court in Rasmussen v. Fleming, 741 P. 2d 674, 686 (Ariz. 1987), "other jurisdictions have unanimously concluded that the right to refuse medical treatment is not lost merely because the individual has become incompetent and has failed to preserve that right."

⁹In re Quinlan, 355 A.2d 647 (N.J.), cert. denied, 429 U.S. 922 (1976). In Quinlan, the New Jersey Supreme Court allowed Karen Quinlan's father, as guardian, the authority to disconnect the respirator keeping his persistently vegetative daughter alive if he determined that Karen would have chosen to do so under the circumstances.

¹⁰Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).

¹¹Wis. Stat. chapter 154 allows individuals to execute living wills that contain specific instructions as to the withholding or withdrawal of life-sustaining procedures and artificial nutrition and hydration in the event that they suffer a terminal condition or persistent vegetative state. Chapter 155 allows individuals to designate a health care agent to make health care decisions on their behalf, including decisions to withhold or withdraw life-sustaining medical treatment in the event that they lose decision-making capacity.

¹²Cruzan, 497 U.S. at 288-89 (O'Connor, J., concurring).

¹³167 Wis. 2d at 75.

¹⁴Id. at 87 n.17 (quoting "Position of the American Academy of Neurology on Certain Aspects of the Care and Management of Persistent Vegetative State Patients," 39 Neurology 125 (1989)).

¹⁵200 Cal. App. 3d 185, 245 Cal. Rptr. 840, cert. denied, 488 U.S. 958 (1988).

¹⁶357 N.W. 2d 332 (Minn. 1984).

¹⁷L.W., 167 Wis. 2d at 79; Edna, 2l0 Wis. 2d at 565.

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