Fighting for Dear Life Read online

  ‘‘We have a real problem,’’ the caller said. ‘‘I have just received word that the Morton Plant Hospital doctors are refusing to reinsert Terri’s feeding tube!’’ Our source wanted to know if we’d heard anything about that allegation. We hadn’t. Nor could we understand why the hospital would disregard the governor’s order. We knew that the immunity clause for the doctors had been inserted into the bill.

  Having gone six days without food or water, if Terri didn’t receive hydration very soon, her internal organs would begin to shut down— probably beginning with her kidneys. Certainly the doctors and nurses would know that Terri’s situation was critical. Why, then, the delay? I dispatched Rex to be our eyes and ears on the ground yet again. Rex snatched another copy of the governor’s order, jumped into his truck, and rushed to Morton Plant Hospital, located a few miles north of our office.

  With Rex running to the hospital, we scoured our various news sources for any late-breaking developments. We quickly learned that George Felos had called another press conference. As Michael’s attorney, he announced that he was immediately going to court to have Terri’s Law and the governor’s order declared unconstitutional and a violation of the separation of powers.

  Another news source reported that Felos’s hearing on this matter would be postponed until a later time. It seemed obvious to us what was happening. The other side intended to stall as long as possible in hopes that Terri would expire and make the whole issue moot.

  As we were debating our options, we received another urgent phone call—this time from a friend at the hospital. We were told that Mr. Felos was already roaming the halls threatening to sue any doctor who reinserted the feeding tube—despite the immunity clause that was added at the last moment by the legislature. With Mr. Felos breathing threats, we were concerned that Rex might have no access upon his arrival. Just as the other side had managed to prevent unhindered access to Terri at the hospice, we believed Mr. Felos would be working to find a way to prevent Rex from helping Terri at the hospital.

  Now what?

  First, we called Rex on his cell phone to let him know he was about to walk into a hornet’s nest of resistance; we wanted him mentally prepared for a possible confrontation. We told Rex to keep driving and that we’d have a plan in place by the time he arrived at the hospital. Second, we remembered that one of the people who had contacted us while we were drafting Terri’s Law just happened to be the wife of the former chief of staff of Morton Plant Hospital, Dr. Jay Carpenter. We called the Carpenters’ home, and although Dr. Carpenter was not there, his children gladly gave us his cell phone number.

  A call to his cell was answered immediately. We gave Dr. Carpenter a quick rundown of what was happening at the hospital. Shocked, he said that he happened to be less than ten minutes from the hospital and would immediately go there to meet Rex. We gave him Rex’s cell phone number. Dr. Carpenter called Rex and arranged to meet him at the front door of the hospital—which, we later learned, had been placed under police guard by the FDLE personnel after Terri had been moved there.

  Rex arrived at the hospital and rushed to the front door. One of the guards blocked his path. Just as Rex began to explain that he was one of the attorneys from Gibbs Law Firm assisting Terri Schiavo’s parents, a man emerged from behind the opening automatic doors. He told the guard, ‘‘I am Dr. Carpenter, and this man is with me.’’ The two men had never met before and might not otherwise have been able to find each other so quickly.

  The guard stepped aside, allowing them to enter. As Dr. Carpenter and Rex hustled through the lobby, Rex briefed the doctor with the information we had provided him from the office. Meanwhile, Dr. Carpenter steered Rex through the maze of hallways, stopping at the appropriate reception area of the hospital. After a few minutes a member of the hospital’s administration team came into the room, introduced herself with a somewhat tentative handshake, and then escorted them into her office.

  Rex advised her that our office had learned through various sources that Terri had been brought there under police escort to have her feeding tube reinserted. He asked whether she was aware that the governor had signed an order earlier that evening mandating that Terri’s hydration and nutrition be reintroduced. Rex handed her a copy of the governor’s order. When she finished perusing every word on the page, Rex told her that he had been dispatched by our office to ensure that the hospital would follow the governor’s order to reinsert the feeding tube. She responded with a certain cool detachment, Rex thought, as if unmoved by the urgency of Terri’s situation. She claimed in no uncertain terms that the hospital did not make those decisions—the attending physician in the ER was the one who would have to make the call. Rex told her she had a duty to make certain the ER doctor was aware that the hospital had just received a copy of the governor’s order; the doctor would now be under actual notice of his legal duty to reinsert the feeding tube.

  His words appeared to fall on deaf ears.

  The administrator folded her arms. She had been told by the doctor that Michael Schiavo’s legal team had already instructed them not to reinsert the tube or they would be sued. Rex pressed the issue. He held an order from the governor to reinsert the tube. He reminded her that it was the governor’s position—not Mr. Schiavo’s wishes—that currently had the effect of law and that the hospital was now on official notice of that law. He didn’t believe that anyone at the hospital would want to permit Terri to die on their watch—especially in violation of the governor’s order.

  Law or not, she apparently wasn’t inclined to help Terri.

  Running out of options, Rex called me at the office. While standing just a few feet away, within earshot of the woman, he loudly informed me that the hospital was not being cooperative and was refusing to follow the governor’s order. In a firm tone and loud enough for her to hear, Rex began to discuss with me the whole issue of wrongful death liability and the lawsuit that was sure to be filed against the hospital and personally against any hospital personnel who allowed Terri to die in flagrant violation of the governor’s order.

  Now the hospital was in a real dilemma.

  George Felos was threatening to sue if the doctors reinserted the tube; our office was threatening to sue if they didn’t. The administrator was put in quite a bind. After some hesitation, she indicated that there was a judicial hearing coming up within the hour. Maybe we could resolve the matter there, she offered. Rex knew that was not accurate information. As I had previously told him, we knew that hearing had been postponed. Rex filled the woman in on that little detail, which took some of the wind out of her sails. Clearly, her predicament was not going to be resolved by any court order that night.

  MIDNIGHT MIRACLE

  With the tenacity of a bulldog, Rex demanded immediate compliance with Governor Bush’s order, telling this staff member that if the hospital refused to comply with the governor’s order, our office, on behalf of the Schindlers, would hold her, the doctor, and the hospital legally accountable if they allowed Terri to die. As Rex later reported to me, the tension in the room at that moment could only have been cut by a surgeon’s knife.

  Dr. Carpenter had been standing by Rex’s side the whole time, watching the verbal clash of wills. Breaking his silence, he suggested that he go check on Terri and discuss her treatment with the doctor in charge in light of the order in hand. Whether it had been the threat of legal action, the realization that Rex refused to back down, or the weight of the words spoken by the former chief of staff of the hospital, the woman consented—with one condition.

  She wanted to accompany him.

  Twenty minutes later and just before midnight, Dr. Carpenter returned with the administrator. With the skill of a seasoned professional, he reported three things: He had talked with the attending physician, he had personally seen Terri, and she would be cared for immediately. Dr. Carpenter explained that they could not discuss the terms of the treatment without the guardian’s permission, but that he and the administrator could confirm
that Terri was receiving medical care consistent with the governor’s order.

  Rex, still in legal warrior mode, asked Dr. Carpenter one more time if he was certain that Terri was being fed. Dr. Carpenter explained that generally, when a patient has been without sustenance for such a long period of time, hydration and nutrition must be carefully monitored and only gradually restored. But yes, Terri’s care was entirely appropriate for a person in her condition.

  Exhausted from several hours of this intense face-off, yet encouraged by the breakthrough, Rex called the office with this fantastic news. While he went on to thank Dr. Carpenter for his life-saving role, I called the Schindlers. The Schindlers, who had been hearing news reports that Terri was not being fed, were elated beyond words that Terri’s court-ordered date with death had passed and that she was still alive.

  Indeed, we all rejoiced and gave thanks to God for this rare, albeit temporary, victory. In hindsight, the decision to move on a legislative front provided the Schindlers with almost two additional years to enjoy the company of their daughter.

  TIME LINE OF EVENTS: 1990–2003

  February 25, 1990: Terri's Collapse—Terri Schiavo, twenty-six, collapses while at home alone with Michael, her husband of six years. Oxygen flow to her brain is interrupted for several minutes, causing permanent brain damage.

  May 9, 1990: Terri Improves— Terri has improved from her initial acute coma status and is taken to a Florida rehab center for a rehabilitation recovery program. Later Michael takes her to California for experimental surgery.

  June 1990: Lawsuit Fails— Terri’s medical coverage is terminated, and Michael Schiavo files an unsuccessful lawsuit against Terri’s insurance company.

  February 1991: Therapy Continues— Terri continues rehabilitation therapy. At this time the Schindlers report that Terri can still say words like ‘‘no’’ and ‘‘stop.’’ She goes outdoors in a wheelchair and enjoys trips to the mall.

  April 1991: Continued Progress— Terri’s condition is improving. More advanced therapy is recommended.

  September 1991: Moving On— Michael Schiavo reportedly has started dating again.

  August 1992: First Award— Terri is awarded $250,000 in an out-of-court medical malpractice settlement with her general practitioner, who is later cleared by a Florida medical board.

  November 1992: Second Award— A malpractice trial commences against Terri’s gynecologist for $20 million, an amount calculated to provide care for Terri for her natural lifespan, which is estimated by actuaries to be at least fifty years. After attorney fees, the jury award and a previous settlement amount to $1.2 million, $700,000 of which is placed into a trust fund to pay for her medical care. The remainder is awarded to Michael for loss of companionship. February 14, 1993: Disagreement Over Care— After Michael receives the money from the medical malpractice jury award, he and Terri’s parents have a falling out when Michael refuses to use the money to move Terri from the nursing home where she is now residing to a premiere rehabilitation facility as the Schindlers had expected him to do. Michael and Bob Schindler never speak again after that day. Terri receives no rehabilitative services, swallowing tests, or therapy of any kind from 1992 until her death in 2005.

  June 1993: New Family— Michael Schiavo begins a romantic relationship with Jodi Centonze, a woman to whom he will subsequently become engaged and with whom he will have two children.

  Michael is still residing with Jodi and their children when Terri dies; Michael and Jodi marry in January 2006.

  September 15, 1993: Contesting Legal Guardianship—The Schindlers fail in their legal bid to remove Michael as Terri’s guardian.

  1994 – 1998: The ‘‘Quiet Years’’ —Terri continues to live in a Florida nursing home and receives minimal medical care and no therapy. The Schindlers believe, and records appear to confirm, that during these ‘‘quiet’’ years Michael obtains the assistance of George Felos, a leading pro-euthanasia attorney in Florida, to find a way to have Terri’s feeding tube removed.

  1998: Michael Requests Court Permission to Have Terri Die— Using a newly-enacted Florida law, Michael Schiavo petitions the Pinellas County Probate Court to have his wife’s feeding tube removed.

  February 11, 2000: Court First Rules Terri Can Die— After a trial, Pinellas County Probate Court Judge George Greer issues an order for Terri’s death, ruling that there is ‘‘clear and convincing’’ evidence of Terri’s oral end-of-life wishes, that Terri is in PVS, and that she would not want to live with a feeding tube. Although Judge Greer has never seen Terri, he also rules that she is unconscious, unaware, and without cognition, conditions that Terri’s family consistently deny.

  February 20, 2000: Petition for Rehearing— Following the trial, the Schindlers obtain affidavits from three volunteer physicians who visit Terri and determine she is not in a PVS condition. They petition for a rehearing and ask Judge Greer to allow Terri to have medical testing to determine her swallowing capabilities and her true neurological condition. These motions are denied.

  April 10, 2000: Terri Moved to Hospice — Michael moves Terri from her nursing home to the Woodside Hospice facility, where George Felos, his attorney, has served as chairman of the board, despite testimony at her malpractice trial of her anticipated longevity.

  April 24, 2001: Terri’s Feeding Tube Removed, First Time — Terri’s feeding tube is removed for what will be the first of three times, but it is reinserted two days later by Florida Circuit Court Judge Frank Quesada after one of Michael’s former girlfriends calls a radio talk show and claims that Michael had told her he had no idea what Terri would have wanted.

  November 22, 2002: Court Again Rules That Terri Should Die— Judge Greer again rules that Terri is in a PVS condition and cannot be rehabilitated.

  September 17, 2003: New Date for Removal of Tube— Judge Greer resets the date for the removal of Terri’s feeding tube for 2 PM on October 15, 2003.

  October 13, 2003: First Meeting— First meeting between Gibbs Law Firm staff and the Schindlers, in which the law firm agrees to help behind the scenes, on a pro bono basis.

  October 15, 2003: Removal of Feeding Tube, Second Time— Terri’s feeding tube is removed for the second time. Gibbs Law Firm attorneys draft an initial version of what will later become Terri’s Law and submit it to Florida house members.

  October 20, 2003: ‘‘Terri’s Law’’ Passed in the State Senate— The Florida senate votes to pass a weakened version of Terri’s Law, Public Law 03-418, authorizing Governor Bush to order Terri’s feeding tube reinserted while he reviews her situation and all similar situations in Florida. A few hours later, the tube is reinserted and Terri is rehydrated, preserving her life for a second time.

  CHAPTER SIX

  IS THERE A DOCTOR IN

  THE HOUSE?

  As I looked at Terri, and she gazed directly back at me, I asked myself whether, if I were her attending physician, I could in good conscience withdraw her feeding and hydration.No, I could not.

  —DR. WILLIAM CHESHIRE JR., MD, BOARD CERTIFIED NEUROLOGIST

  In early 2005 our law firm received sworn affidavits from more than forty medical professionals, including neurologists. None of these medical professionals were solicited. None were paid. They simply became aware of Terri’s fight through various news accounts and decided to step forward. From all across the country, these brave men and women put their reputations and licenses on the line. How so?

  By signing declarations for the court questioning the diagnosis that Terri was in a persistent vegetative state and recommending that she be reevaluated before her feeding tube was removed.

  Each one felt compelled to offer Terri his or her professional help—especially if it might save her life. But how did they know this? Michael wouldn’t permit any outside doctor into Terri’s room without his consent. In order to make some level of an assessment without seeing the patient, these neurologists had to rely upon the available video clips, court files, and public documents. Without exception,
these doctors, many at the top of their field, unanimously believed the evidence in the videotapes and reports of visits with her family contradicted a PVS diagnosis.

  Of special interest was an affidavit submitted by Dr. Beatrice Engstrand, a fellow of the American Academy of Neurology and assistant professor of neurology at the New York Medical College. This recognized neurology expert advised caution. As with the other medical personnel, she based her opinion on a careful review of what was publicly available. She did not believe Terri met the PVS criteria and offered to personally examine Terri for the court.

  Her opinion was shared by board certified neurologist Dr. Laurie Barclay. Dr. Barclay wrote:

  Terri Schiavo reacts with emotionally appropriate facial expressions, behaviors, and attempted vocalizations to her relatives, and she discriminates in these responses in that they are different toward beloved relatives than they are to strangers. These responses are not consistent with someone in a persistent vegetative state, and suggest a level of consciousness of at least ‘‘minimally conscious state’’ . . . if not even a higher level of consciousness.

  Why should these two affidavits carry extra weight?

  Both of these experts had personally studied under Dr. Fred Plum— the American neurologist who, along with Dr. Bryan Jennett, a Scottish neurosurgeon, originally coined the term PVS syndrome. The unique training afforded Drs. Barclay and Engstrand by Dr. Plum—the doctor whose contribution to science was the PVS diagnosis—is no small matter.

  This begs a question. With these two as well as more than three dozen other experts weighing in and offering their services, why would

  Judge Greer claim that all of the credible evidence pointed to a lack of cognitive activity? Furthermore, why would Judge Greer ignore the findings of two neurologists who did see Terri?

  Take neurologist Dr. William Cheshire Jr., for example. Certified by the American Board of Psychiatry and Neurology, Dr. Cheshire was appointed by Florida’s Adult Protection Services to offer his objective medical review for the Department of Children and Families during its investigation of abuse and neglect charges. Although neither he nor any other doctor was permitted by Michael and the court to actually examine Terri at that point, here are highlights from his seven-page sworn affidavit after an in-room, ninety-minute observation of Terri in March 2005: