Terri, Feeding Tubes and Life Support

The Terri Schiavo saga is almost done, the Almighty Courts have spoken, and we can begin what one would hope to be a mercifully short post-mortem on the issue itself. I have two thoughts on this, regarding mainstream media treatment of the matter, and then about the nature of end-of-life law itself.

First- media performance. Once again, the Big Media coverage has been lousy, and it is almost impossible to tell if it is the result of pure incompetence and laziness or promotion of its standard position- scientists and rationalists versus the dogmatic and ignorant religious zealots. The truth is almost certainly a combination of the two.

The most obvious example is the constant characterization of Mrs. Schiavo as a vegetable on life support, essentially described that way by ABC News in its push-poll a week ago. This matches the willful ignorance of my favorite lefty friend, who has variously scolded me in the last week for promoting lawlessness, insensitivity to "states rights", immorality for supporting a president who signed a Bill in Texas that permitted a level of cost analysis to be incorporated into "pull-the-plug" decisions, and of promoting heroic artificial life-extension measures for accepting what he repeatedly referred to as "artificial nutrition and hydration" to keep her alive (his final comment was: " hey a lump of cancer is alive... lets feed that too"- this sensitive statement gives you an idea of the real attitudes of some of the far left on these matters). Regarding the latter point, he revealed that he is just as confused about this as every lazy network "reporter" out there. If you polled the public on this subject, you would likely find that a large majority is sure that Terri was being fed either intravenously or by a tube stuck down her throat, and with respiratory and circulatory assistance as well. Wrong.

When I was in nursing school (I have a current license which I earned when I was deputy principal investigator on clinical trials while managing operations for a small medical device company; I now work in the support area for an academic medical research facility), I took care of patients like Terri. People who were demented to varying degrees, from loss of short term memory all the way to total unawareness of surroundings, incontinent, and immobile. We would awaken them in the morning, get them cleaned up and dressed, administer morning meds, then get ready for breakfast.

I had one particular patient who took all his nutrition and hydration through a percutaneous endoscopic gastrectomy (PEG) tube, just like Terri. Folks, do you know what that really is? It is a funnel, into which you pour Ensure- just because it is easier to do it that way than to spoon-feed. Period.

It is used in two types of situations: 1) the patient has trouble swallowing, or 2) it is simply a lot easier on the nursing care staff and more efficient to feed the client that way. There is nothing wrong with any of the GI tract- the stomach works just fine, the intestines absorb nutrition totally normally. And, regarding the swallowing difficulties, any person who has ever spent any time around a long term care facility knows that up to half of the residents have trouble swallowing, so all of their liquids are mixed with thickeners to make them more viscous and easier-to-swallow.

So Mrs. Schiavo had a fully functioning cardiac system, and a fully functioning GI tract. Her "life support" consisted of being fed by use of a funnel to dump in the most common over-the-counter "instant breakfast". Yet the Big Media types seem to have done their best to obfuscate reality, by never explaining the PEG tube, in fact, they seem to have gone out of their way to suggest that a "vegetable" was getting D20-plus-lipids through some kind of intravenous infusion. The reality is that, if Terri had been given to custody of some other party, the twelve-year-old kid next door could have fed her just fine. No significant infection issues, no special medical problems.

There is no question that the mischaracterizations of her physical (not mental) condition fed a public impression that was quite different from reality. Why? Couldn’t those advocating death for Mrs. Schiavo make the case honestly? One wonders. Especially given the behavior of ABC and the Washington Post regarding that mysterious talking points memo never tied to any Republican lawmakers, handed to them by Democrat staffers, yet somehow reported as a Religious Republican Right Manifesto. (update- this memeo actually turned out to have been created by a legislative assistant to Sen. Mel Martinez, so we can leave out the "Democrat conspiracy" and simply note that ABC still did not perform well before that source was reveaed)

That brings us to the second point. One can have a variety of views on what should have been done in this case, what the trial judge did and should have done, whether or not Congress should have acted, and so on. There was a lot of unseemly preening and posturing on both sides, from those who favor the Netherlands "duty to die" euthanasia philosophy to those who seem to believe that they need to take care of God’s business here on earth for Him because He cannot take care of the souls of the fetuses and neglected unles the activists are there to scold us on His behalf.

Who, besides God, knows which side is right? The key is that the record shows that the trial court made a lot of rulings it didn't have to make, for reasons we don't understand- perhaps the judge is upset that his judgement is being questioned, etc. In a case like this, we need laws that leave egos at the door and opt for the best expression of morality. We need 50 state laws that say:

1) If a patient is in such a non-communicative state, but the major organ systems function normally, so that there is no artificial respiration or circulatory support, or and the gut will absorb nutrition, and
2) if there is no written legal document of at least the same evidentiary (Statute of Frauds, for contract matters) level as we require to buy a $500 item of hardware,
3) if there is a dispute among the family over the inferred wishes of the patient, and
4) a first order relative is willing to take on the custody, care, and support of that patient, then:
- the system should "err" on the side of life. That does not apply if some family member wants the patient alive but desires that the government pay for it all; if we are pro-life, pay the price, personally. If the patient is left as a ward of the state, the Florida-type law can be used to deal with the situation.

My own experience tells me that this has probably been hopeless all along, but the law failed miserably in its duty to Terri Schiavo to protect her from those who-let’s be blunt- wish her ill. If a doctor messes up a terminal cancer case that costs a patient a possibility of 20% chance of recovery instead of sure death, the patient wins 20% of the award in a malpractice case.

The Solomonic solution was there all along for those with a moral compass- let Michael have his divorce, let the Schindlers try 6 months of intensive rehabilitation therapy to confirm the mental state insofar as we can. And leave the rest of us out of the private family matter. A minister friend of mine was the police chaplain who counseled Mrs. David Mack after her Minneapolis police officer husband was shot and in an extended coma- then, suddenly woke up and lived five more years, awake and alert. My memory of that case, and the talk then about the futility of the situation haunts me now.

Moral considerations are difficult- but one thing far worse than making the wrong decision is ducking the moral consequences of the debate. If we are going to avoid the head-first dive down the slippery slope, we need some changes in law, now.

The Statute of Frauds and Terri Schiavo

The law allegedly has a strong bias in favor of truth, reasonableness, justice, and avoidance of moral hazards. One of the best illustrations of this is a universal US law that is enshrined in both the Common Law and by the Uniform Commercial Code governing all US sales transactions.

As law professors explain, the real meaning of the term is "the statute for the prevention of frauds". The idea is that there are certain kinds of dealings that inherently offer the temptation to cheat. Hence, to eliminate both the temptation, and the possibility, of either party being less than truthful about oral communications alleged to have occurred between the contracting parties, certain kinds of contracts must be in writing, and signed by the person you are trying to enforce the agreement against. The exceptions are few, and only are allowed if they provide very strong circumstantial support for the claims.

Now, this principle of law applies to agreements of two types: contracts to buy things "of great value", and situations where the temptation to, er, liberally interpret to your benefit (that is, "lie") is "easily imagined". For example, if you want to buy a piece of real property, land, the seller must give you a signed piece of paper clearly describing the specific piece of land, the price she is willing to sell it to you for, and then sign the paper. Or, if there is an agreement that I will cover the bad debts of my worthless brother-in-law, that is, act as guarantor for his purchase of a used Geo Metro on his salary flipping hamburgers down at the local bowling alley, I have to provide the seller of the car a signed piece of paper indicating that when, not if, Lazy Larry defaults on the loan, I will write a check. Then another check, then another…..

The same principle is found outside of contracts, in areas where "strict liability" applies; if a man erotically amuses himself with a girl of fourteen, he is guilty of statutory rape no matter how old he thought she was. It is too easy to play he-said-she-said with the truth, and public policy should discourage opportunities for older men to take advantage of young women.

To illustrate what the law considers to be a contract of significant "value" the Statute of Frauds requirement for transfer of goods kicks in at a sales price of $500. If you are going to write a contract to buy anything worth more than $500, you need to have the deal in writing and signed by the other person. Period.

Now, let’s consider Terri Schiavo, the woman in Florida whose brain injury has led to the battle between her husband and parents over starving her to death by removing her feeding tube so her husband, Michael, can marry his live-in girlfriend and "legitimize" their two children. She is physically healthy, not on any kind of respiratory or circulatory support systems. The question is entirely whether the nursing home should stop giving her meals and water so she can starve to death and free old Michael up so he won’t have to fuss with a divorce. Since her parents are eager to assume responsibility for her care, Michael must have come from a tradition where divorce is, literally, worse than death. Or something like that. Nice to know that he has such a strong commitment to marriage.

The Florida judge on the case has apparently adopted this as his personal "right to die" crusade. He refuses to consider transferring custody of Terri to her parents, who promise to take care of her and provide various kinds of physical and occupational therapy that might improve her condition. Their petition is opposed by Michael, who swears, honest, that Terri had told him when she was about 27 years old, conveniently not long before her highly unusual and unforeseeable injury, that in the event that she was ever in such a "vegetative state", she wanted him to starve her to death.

Michael Schiavo was inspired to remember this "kill me!" conversation by warm thoughts of Terri immediately after winning a lawsuit that provided $1.7 million, much of designated to provide the care and therapy to help her condition improve. Of course, since she had really wanted to die anyway, he would just use the money in her memory after she was gone, presumably thinking of her with every bite of gourmet food and over every mile traveled in the new car.

So now we see the comparison of what is too morally risky to leave to one person’s unsubstantiated assertion. If you are buying a used Geo for $600, you need a written contract signed by the car dealer. If the object is the life of your wife, you don’t need anything in writing from her- you can just suddenly remember that she had said once, by strange coincidence not long before having a tragic accident, that she wanted you to kill her if she ever had just such an accident. And the judge, having just finished ruling that a writing is needed in a dispute regarding sale of a used drum set, will pat you on the head and say that he will do everything he can to help you starve her to death. Even though her parents have asked you to simply divorce her, give them custody to care for her, and go on with your own life.

Ironically, if Terri and Michael had made a contract to get married, in exchange for Terri giving Michael title to that $1.7 million, the deal would have had to be in writing under the Statute of Frauds. The idea is that it is easily imagined that one might be tempted to stretch the truth a little bit with that kind of incentive, so the moral hazard is avoided altogether by simply requiring written proof.

We don’t know what Terri said to Michael about the possibility of death in this kind of circumstance; I know that my wife and I have been married for 30 years and never talked about that, nor do I know anyone else who set up a plan at an age under thirty when most young people feel immortal. I do know that if Michael had tried to force someone to sell him a Geo for $600 he would have been tossed out of court without written proof, and a $1.7 million incentive to enforce the unwitnessed oral terms would have only reinforced a judge’s hunch that the evidence offered might be a bit tainted.

We are doing a fine job protecting the rights of those owners of $600 Geos- on the off chance that they didn’t really want to sell.

(this post was edited on 3/21/05 to improve the illustrative examples and correct name spelling error)

Blogdom Civil Disobedience!

The blogosphere is abuzz with back-and-forth outraged commentary over the not-so-veiled threats to free speech in the US posed by an activist judge. This would not necessarily be a problem, since court rulings are not necessarily sacrosanct if there are other courts that actually respect the Constitution, but the (big-D) Democrat-bloc on the FEC has prevented an appeal of Judge Colleen Kottar-Kotelly's made-up ruling that "campaign finance reform" (read: Incumbent Protection Act, AKA "shut-up, you inconvenient non-MSM pajamahadeen") applies to blogs.

The K-K ruling is based on some breathlessly creative and specious "reasoning". I suspect a convenient new emanation of a penumbra, or whatever that last one was (Harry Blackmun's creative writing in 1973 regarding "privacy" showing up in the margins of the First Amendment and what that means about legislatures writing laws).

It is kind of amazing what the First Amendment says these days, and what it doesn't say.

This makes old conservative me wonder what would happen if we operated here the way they do in other countries that are just coming out from under the yoke of totalitarianism. If the Orange Revolution can defy Putin, and the Cedar Revolution can defy Assad, why can't the PJ Revolution tell the New Age censors in our midst, "Byte Me"? Could everyone who has ever posted an entry (whether or not a site that no one would ever read, such as mine, or Instapundit, which everyone reads) band together and simply refuse to comply with the planned gag orders from the hoped-for 21st century keepers of the Electronic Gulag?

Will those who claim to be libertarians (a couple of big ones come to mind)- who actually have readers- take the lead in organizing the rest of us to stick out our little smiley tongues at the decisive group of crypto-fascists in the FEC (Weintraub, this means you) and the Appeals Courts?

When Big Brother comes to restrict our rights of free expression, presumably in time for the 2006 mid-term elections, there will be court orders shutting down servers. Google, of course, would terminate any Blogspot bloggers, so there would need to be new available outlets. Who are the experts who can start planning the underground insurrectionist servers (offshore? Wherever the porn purveying autodialers, who face no threat whatsoever of censorship, originate out of the reach of all of us?) to which folks could migrate when Kotar-Kotelly mounts her broom to come after us all, with John and Russ, the virtuous censors of political speech, riding shotgun.

Who's in charge here, in the event that this nonsense is not turned on its ear by a SCOTUS properly stricken with remorse over the BCFR decision?