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WORDS THAT KILL: "TERRI, BITE YOUR TONGUE!"

 


Dr. Madeleine Cosman, Ph.D., ESQ
April 7, 2005
NewsWithViews.com

“Words kill!” “Bite your tongue!” Those were my Grandmother’s stern warnings if as a child I dared talk about injury or death. “Hush your mouth! If you talk about horror, you invite it.” Terri Schindler Schiavo did not have my Grandma’s advice to avoid words that kill. Word justified Terri’s judicial murder. Terri’s own words ostensibly said to her husband when she was young and healthy doomed her to die. The legal meanings of specific words sealed Terri’s fate because those same words in medical law were bent and flexed in court. A murderer, rapist, or arsonist has more protections of life and liberty under criminal law procedures than a physician or patient under modern medical law. Power of words to kill agitated many principled, ethical people on opposite sides of the political divide to join to save Terri’s life. Terri was thrust into a crematory jar by the medical-legal uses of hearsay, clear and convincing evidence, guardian, hospice, life support, feeding tube, right to die, and Persistent Vegetative State. Though Terri could not talk, her major legacy is that cluster of Words that Kill.

TERRI’S WORD AND HEARSAY

Judge Greer decided as legal fact that Terri truly desired to die if severely handicapped. Once he made that decision, “right to die” rules enabled Terri’s guardian to remove her food and water tube and let her starve and dehydrate to death. Terri’s guardian was court-appointed to the duty to protect and preserve his ward’s rights and to care for her. He was acting for her in this most critical medical decision as if she were acting for herself. However, before a court deciding a non-medical law case can determine anything as legal fact, the judge and jury customarily have sitting before them in the courtroom
a) a visible, observable witness
b) who makes a statement under oath, with a punishment of perjury for lying,
c) who speaks in context of a larger story that confirms the sincerity and accuracy of the testimony
d) and who can be cross-examined to determine the truth

When Terri’s words came to Judge Greer’s court, Terri was not there. She had made an offhand hearsay statement years before, apparently declaring that she would never want to live helpless. Her husband reported her words to the court. Terri, of course, was not observable, not under oath, not telling her story in context, and not cross-examined so that the court could be certain her statement was absolutely, positively true to her intentions and desires. Four potential dangers in any actual testimony are insincerity, ambiguity, faulty perception, and erroneous memory. In hearsay, all four dangers are exponentially magnified. A good confidence man perjuring himself under oath can claim anyone declared anything about anybody.

Grandma would have advised healthy young Terri, “Hush your mouth! Quiet your tongue!” If you watch a terrifying movie depicting tortured people, do not speak a word. If in a restaurant you notice a misshapen, crippled person, keep your mouth shut. If you watch a crime show on television and commiserate with the beaten victim, bite your tongue. Keep your opinions, your ideas, and your reactions to yourself. Never ever say, “I would not want to live like that!” Never say, “That is a fate worse than death!” Never say, “I prefer to die than live hopeless and dependent!”

Such words killed Terri. Words could kill you too if your spouse especially loves you, hates you, or wants to get rid of you. In a court such as Judger Greer’s your spouse will remember your words, then relate your comments after you are injured and unable to argue that you want to live.

Hearsay evidence almost never is admitted in court. Hearsay evidence is stunningly difficult to prove true. Contemplate the problems even for the most ethical, unbiased, truth-seeker. Michael quoted Terri’s statement as true, as if Terri were swearing under oath in court that she said it and that she meant exactly what she said. Terri supposedly declared her desires, therefore called in law the declarant, and Michael heard her say her words and faithfully reported them. Article VIII of the Federal Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible except as provided by law or by the Rules of Evidence.

Since the person herself is not in court to be observed and cross-examined against her possible insincerity, ambiguity, incorrect memory, and inaccurate perception, the court must separate fact from fiction. The trier of fact not only must determine the credibility of Michael making the assertion about the declarant Terri, but the judge must be sure that Terri is personally credible and that her declaration is truthful. Some states, in fact, distinguish between assertion-centered hearsay and declarant-centered hearsay. Assertion-centered hearsay emphasizes the power of the statement offered to prove the matter asserted, namely that Terri, unambiguously, sincerely, perfectly perceived and remembered that she wanted to die if she was severely disabled. Declarant-centered hearsay, however, depends for its value on the declarant Terri’s credibility, that she, in addition to what she said, was completely credible, sincere, unambiguous, and free of personal problems of memory and of perception of reality. Customary strictness in both Federal and state courts to reject hearsay makes Judge Greer’s easy acceptance of Terri’s offhand hearsay words all the more frightening.

Nevertheless, the Federal Rules of Evidence provide hearsay exceptions in which the words of the declarant are admissible. Some quality in the nature of the words themselves or the circumstance in which they were said makes the words likely to be true and trustworthy. Two general classes of hearsay exceptions exist. First is the reported words admissible in court whether or not the declarant is available to come to court (such as an “excited utterance” made at a car crash because of stress of its excitement, or a “present sense impression” in which the declarant describes an event or condition while experiencing it, or immediately thereafter). Such expressions are likely to be true. Federal Rules have at least 24 such exceptions.

The second class of hearsay allowed to be admitted into evidence consists of statements the declarant made but the declarant is not available as a witness. These include a declarant’s statement about her death when believing her death is imminent, and a “statement against interest” such as a group of words so contrary to the speaker’s interest that a reasonable person in such position would never say such a thing unless it were true. At least six types of unavailable witness exceptions allow the declarant’s words, such as Terri’s, to be accepted in court as true even though spoken by another, such as Michael.

End-of-life decisions to start therapy, continue therapy, or stop therapy are profoundly personal, individualistic choices. Usually the patient decides or if not having provided written or oral instructions, the agonizing decisions are made rationally by the patient’s family. Yet sometimes the last physical acts to prolong or end life must be decided in court if the person without family cannot competently express his or her desires, or one has not written a precise and unequivocal Advance Medical Directive, or if one has not appointed a Surrogate decision-maker who will speak and act as if for the self, of if one failed to appoint a friend with a Durable Power of Attorney, or if there is a family dispute. Evidence of what the now speech-incapable patient wants in any “right to die,” mercy-killing, or euthanasia case must meet a seemingly strict standard of clear and compelling evidence.

CLEAR AND COMPELLING EVIDENCE

What does clear and compelling mean? Technical legal meaning of clear and compelling or clear and convincing evidence differs from the commonsense meanings. The clear and compelling standard in civil law differs from the standard in medical law. Terri’s words seem to have met no reasonable standard. The clear and compelling standard of proof for judgment is higher than a preponderance of the evidence. Clear and compelling evidence makes fact highly probable. But the standard of proof is lower than the most strict proof, beyond a reasonable doubt. Clear and compelling evidence meets a standard midway between the most lenient and the most stringent.

Judge Greer’s judgment that Terri’s words were clear and compelling proof of her true, sincere, direct, precise intent to die, free of vague imprecision, free of corrupted perception, and free of imperfect remembrance is remarkable. Terri’s hearsay words were reported years after the incident that caused her brain-damage. Michael remembered his wife’s desire for death about seven years after her brain-injury and after his receipt of a malpractice award compensating him with $300,000 for loss of Terri’s consortium, and with $700,000 to rehabilitate her for her long life after injury. Her words as a healthy woman in her twenties were reported by her guardian-husband who was living openly and fathering children with another woman. The hearsay words were specifically, overtly contradicted by Terri’s mother, father, sister, and brother (who additionally requested physical and financial responsibility for her). On Michael’s orders, Terri’s voluminous medical records were sealed and inaccessible. Sworn counter-evidence, to Terri’s diagnosis as in Persistent Vegetative State, and to Terri’s desire for death, was prepared by nurses, physicians, and caregivers but Judge Greer rejected all sworn affidavits as inadmissible. Judge Greer had blatant conflicts of interest.

Commonsense had no standing in the Greer court. The commonsense meaning of clear and compelling evidence that Terri preferred death to life would be a set of specific if-then clauses, items forbidden if particular events occured, with no equivocation, no ambiguity, and no room for potential misinterpretation. Michael had to be construed as truthfully and credibly portraying Terri and her word as credible, as reasonable for the time and place uttered, as verifiable (from the Latin veritas, meaning truth), and consistent with her habits and personal philosophy.

However, the Greer court set dangerous precedents. It has intruded into medical law a permissive definition of hearsay and a relaxed standard of clear and compelling proof. Subtle but sure changes in meanings of words that in the law originally were meant to protect individual rights now slacken those protections to permit political and statist intrusions. Medical-legal uses of hearsay and the clear compelling standard, along with such linguistic novelties as the definition of feeding tube, will be inspirational to physicians, hospitals, hospices, families, and attorneys in other states. New word-meanings create opportunities to review the costs of maintaining other expensive, hopelessly “incurable” people on “life support” in hospitals and homes. Especially vulnerable are all people who are classified by diagnosis of disease or injury and all people whose medical and surgical bills are paid by government. For many, costs will outweigh benefits of continued life. Patients nationwide will be Terrified.

SOUL-SPEAK, HOSPICE, EUTHANASIA-ATTORNEY FELOS

Michael Schiavo hired as his attorney George Felos. Terri’s hearsay was reported through attorney Felos, a lawyer professionally committed to euthanasia and beautiful dying, who considers his work Litigation as Spiritual Practice. Felos’s book with that title describes his mystical ability to “soul-speak” with severely brain-injured people in Persistent Vegetative State who ask him to liberate them from life into death.

Attorney Felos was on the Board of the hospice in which Terri lived, and apparently helped with two unusual policy deviations. A hospice in Florida as elsewhere is a place for end-of-life palliative care, not restorative therapy. Admission to a hospice is clearly defined in laws governing Medicare and Medicaid, and in private insurance polices that pay for hospice care. The patient admitted to hospice must have a terminal illness, a diagnosis and prognosis verified and signed by two independent physicians. That terminal illness is expected to kill the patient within six months. If the disease or injury is not aggressively fought with therapy, which by law a hospice prohibits, then the illness or injury will lead inevitably to the patient’s death within about 24 weeks. Terri lived at Pinellas for about five years. Some insurances will not pay for care that extends longer than six months. Hospices have time as incentive to efficiency.

The second oddity of Terri’s hospice incarceration is that her bills were paid by Medicaid. That is a surprise because the medical malpractice award to Michael Schiavo anticipated his paying for Terri’s care and rehabilitation with the $700,000 awarded. Rehab cannot take place in a hospice by nature of hospice rules. How did Terri qualify for hospice? She did not have a terminal illness. Rather, she had a husband who wanted to terminate her life. She did not have two physicians at the time of her hospice entry confirm a terminal illness with a likely 6-month duration before death. Moreover, Terri’s three-quarter-million dollar “wealth” came from malpractice money she won because of her ability to get well, or, at least, get better. That money distinguished her as not poor. Medicaid is a welfare benefit for indigent patients.

Did attorney Felos assume that by making Terri an expensive burden on taxpayers’ monies, citizens would not object to remove her “life support”?

Lawyer Felos had little difficulty persuading Judge Greer to a) retain Michael as his wife’s guardian even though he was living with another woman for about 10 years and fathered her two children, b) ignore Michael’s failure to file mandatory annual guardianship plans and reports demonstrating his fiduciary protection of Terri, and c) grant as fact the hearsay evidence that Terri considered her dying by starving as her desired death with dignity. Judgment of fact by this one circuit court Judge Greer was upheld by all the other state and federal judges and courts without review of the substance of the case. Every appellate court reviewed only Judge Greer’s procedure, not case subject, evidence, or quality. Judge Greer successfully defied the appellate courts, the Florida legislature, Governor Jeb Bush, the U.S. Congress, and President Bush himself. Congress demanded a new, de novo, hearing of evidence. That was ignored. New hearings were required to resolve such serious questions as: What caused the initial incident that disabled the 26-year-old insurance clerk? What actually happened to her brain? Was she truly in a Persistent Vegetative State? What caused Terri’s bodily fractures that on bone scan performed a year after her initial injury show broken arms, back, pelvis, thigh, and other evidence of extreme injury or abuse? Why was her husband Michael confirmed as her guardian despite his refusal to spend money on her rehabilitation and therapy? Why didn’t a legal “next friend” speak for Terri in divorcing Michael as an adulterer, therefore disqualifying him as her guardian? Rather than a new analysis, Terri’s original word was given the force of fact by law. Word killed her.

FEEDING TUBE = LIFE SUPPORT

A pair of killing words that condemned Terri was “life support.” Michael Schiavo and lawyer Felos claimed that Terri wanted to die rather than live by artificial life support. Most fears and loathing of end-of-life machines refer to mechanisms that keep the heart pumping blood, the lungs breathing air, and the kidneys excreting urine. People apprehensive about living hooked up to fearsome mechanical devices rarely include commonplace feeding tubes that provide food and water. Even healthy, powerful athletes need nutrition and hydration to survive. Terri did not have life support. Her heart, lungs, and kidneys functioned independent of external help. She breathed and pumped blood normally for a bed-ridden person so long as she was able to eat and drink by tube.

In 1998, Michael Schiavo through lawyer Felos brought a court case to extricate Terri’s feeding tube. They failed because Florida law then made feeding brain-injured people mandatory. Feeding tubes were not on the list of life support devices that could be withheld or withdrawn.

Therefore in 1999, attorney Felos and the hospice helped changed Florida law to make the routine, benign, non-mechanical, plastic catheter, a feeding tube, equal to a life support machine that mechanically performs vital life functions controlling heart and lungs. The lawyer, hospice, members of the euthanasia movement’s End of Life Choice (earlier called the Hemlock Society), and others eager to reduce costs of end-of-life medical care, worked with legislators to successfully reclassified tubes for food and hydration as life support. Michael then could pull out Terri’s feeding tube.

The horror’s crown of horrors was that Terri was depicted as twice having asked for that. First, the hearsay report that she did not want artificial life support, and the reclassification of the feeding tube as life support, made pulling the feeding tube from her side the gift of death that she specifically requested. Second, the medical malpractice suit that generated her rehabilitation money was based on Michael’s claim that Terri had the eating disorder, bulimia, in which a person eats then vomits, and starves the body of essential nutrients. That allegedly caused her abnormal potassium level that the sued doctors ought to have identified. The physicians paid over a million dollars for not seeing it. The putative reason for Terri Schindler Schiavo’s mysterious collapse that initiated her brain injury was her attempt by bulimia to starve herself. Her husband simply and lovingly completed the job. Starving to death gave Terri precisely what she asked for.

PERSISTENT VEGETATIVE STATE

Diagnosis of a patient’s problem determines how much medical time, talent, medicine, and surgery shall be lavished or withheld, and whether or not the prognosis for rehabilitation and cure will lead to a life “worth living” or a “life unworthy of life.” Those said to have poor quality of life, who cannot or will not get well, and who live a life unworthy of life are draining the Medicaid water pipes that must slake the thirst of other people’s desires for free medical care. Words that represent diagnosis determine which switch is flicked on or off. Patients diagnosed as being in Persistent Vegetative State (PVS) can have their feeding tubes pulled out whereas patients diagnosed as being in Minimally Conscious State (MCS) cannot. Even the most ethical and magnanimous practitioners who believe that medicine must be rationed for the greatest good for the greatest number might be tempted to diagnose according to Medical Darwinism. Medical Darwinism consists of helping the healthy to survive as the fittest. That simultaneously inspires helping the helpless towards extinction as the unfit.

If as a nation we elect to socialize American medicine, we shall squander the magnificence of our scientific individualistic medicine that the new patient-centered, consumer-directed, physician-friendly Health Savings Accounts encourage. Diagnostic words will not hinder intelligent decisions to treat or not treat if made in the dignified two-party contract of doctor and patient. Diagnostic words definitely kill patients’ rights and patients’ bodies when the third party payer decides what is medically necessary. Whatever saves money for the state is good for the state but only accidentally good for the individual patient. I discuss medical costs and Medical Darwinism in my “Frogs, Crags, and Terri’s Terrible Death” (www.NewsWithViews.com and Journal of American Physicians and Surgeons, Summer, 2005), in my “Psychiatric Darwinism = Survival of the Fittest + Extinction of the Unfit” (Issues in Law and Medicine, v.17#1, Summer, 2001), and in my forthcoming book Who Owns Your Body?: Doctors and Patients Behind Bars (Praeger, 2005).

Dr. Bryan Jennett and Dr. Fred Plum in 1972 distinguished among several terrible brain injuries resulting in losses of consciousness, cognition, and speech. PVS differed from coma in that the patient with PVS has open eyes and follows a comparatively normal cycle of sleeping and awakening. The term “vegetable” state is intentionally powerful and denigratory, relegating the person to a rung in the hierarchy of creation below that of an animal. The traditional Great Chain of Being, traceable back through the millennia to Aristotle and Plato, then the Hebrew and Christian bibles, describes the order of the universe with God or Nature as the top link, with angels and spiritual beings next, then man and woman in the middle, with mind and spirit making the human being ascend to the spiritual, and the glories of the body’s appetites, urges, and sexuality connecting mankind to the next link down, the animal world. Below the animal link is the vegetable world. The final link is the totally inanimate objects, minerals, and rocks.

A considerable loss of mental power classifies a person as persistently (though not necessarily permanently) lower in cognition than a dog, a salamander, or a horse. PVS means complete unawareness of self and environment. If a patient such as Terri can reveal she is in pain, as reported by nurses who cared for her, she is aware of herself. Her shouts and infantile words “Mommy,” “pain,” “No!”, her interactions with people at nurses’ stations, her responses with smiles to the voice and appearance of her mother, surely are more than mere tropism of a plant or vegetable moving toward the sun. But to the investigator who must classify her cognitive status and give her condition the name PVS versus MCS, the diagnostician who believes in his compassionate heart of hearts that “no one would want to live like that,” will instruct his mind to conclude that her awareness of self and environment is not superior to that of a squash, eggplant, or cauliflower.

Two damning criteria for the PVS diagnosis are: No evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli. No evidence of language comprehension or expression. Suppose the patient, like Terri, cannot speak and intentionally has been deprived of sensory stimuli (Michael Schiavo demanded no therapy, no pictures in her room, no voyages outside her room). Depending on one’s philosophy and politics, one will see or not see sustained and voluntary behavioral responses to sight, sound, touch, and disgusting odors. It is or is not language expression when a patient, like Terri, vocalizes variations of “Ahh, aah” on different pitches, with different durations, different rhythms, and with interspersed moans and groans. Parents of brain injured children, nurses, and therapists who long work with such patients understand a primitive language that is not the parents’ or professionals’ wishful thinking or projection onto the patient of what they want to hear. The patient intends meaning and the listener hears it. Well-intentioned physicians examining the same patient during a shorter time span might not catch that alertness or language which those with luxury of more time know to be fact, not fiction. Physicians who diagnose with the philosophy that a low quality of life as they interpret it is or is not worth living, tend to excuse a smile as an intestinal gas bubble or a volitional cry as an unintentional, mindless squawk.

AVOIDING WORDS THAT KILL

Never doubt the legal power of word. If you want your will to be done, then precisely, meticulously discuss your fears, your hopes, and your desires with your family. Learn who can be trusted with what. You can love all in your family but not trust some of its members with words. If you differ from your spouse or your child in philosophy and in interpretation of word, write a specific Advance Medical Directive, appoint a like-minded friend as your Surrogate Decision maker, and give him or her a Durable Power of Attorney for Medical Decisions. A Power of Attorney is not given to a lawyer, unless your best friend happens to be a lawyer. A Durable Power of Attorney is a notarized document that appoints a person you totally trust to speak and act for you as if you were speaking and acting for yourself, and the appointment endures (or springs into existence) after you are unable to speak or act for yourself because of illness, injury, or incapacity. Contemplate basic ideas of life and death. Test your ideas. Express them accurately in writing. Learn the legal standards of your home state.

The splendid Roman orator Quintillian said, “Let care in words show your compassion for things,” curam ergo verborum rerum volo esse solicitudinem. Terri’s life and death are fair warning. Watch your words. Words can kill.

© 2005 Madeleine Cosman - All Rights Reserved

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Dr. Cosman is a medical lawyer located in California. Her forthcoming book in 2005 is Who Owns Your Body?: Doctors and Patients Behind Bars. She lectures worldwide on medical law and medical policy, has testified before Congress on medical law issues, and has spoken in Washington for Cato Institute and Galen Institute. She wrote the ABCs of the Clinton Medical World for Congress in 1993. A Director of California Rifle and Pistol Association, she writes "Guns and Medicine" for Firing Line. One of her 15 published books was nominated for the Pulitzer Prize, National Book Award, and was a Book of the Month Club Dividend Selection.

Madeleine promotes free-market, patient-centered medicine, and Health Savings Accounts.

Her J.D. is from New York's Cardozo School of Law, Ph.D. from Columbia University, M.A. from Hunter College, and B.A. from Barnard College. She is a member of the New York State Bar, New Jersey Bar, American Bar Association's Health Law Section, and American Inns of Court. Madeleine is Professor Emerita of City College of City University of New York and a Life Fellow of the New York Academy of Medicine.

E-Mail: MadeleineCosman@yahoo.com


 

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Never doubt the legal power of word. If you want your will to be done, then precisely, meticulously discuss your fears, your hopes, and your desires with your family. Learn who can be trusted with what. You can love all in your family but not trust some of its members with words.