Wesley Smith: The Guardianship of Terri Schiavo

The Guardian
In 1998, Terri Schiavo’s first guardian ad litem filed a report on her case. It makes for interesting reading today.
by Wesley J. Smith 11/04/2003 7:40:00 AM

http://www.weeklystandard.com/Content/Public/Articles/000/000/003/337laakp.asp

THE TERRI SCHIAVO CASE continues to take dramatic twists and turns. Even as Michael Schiavo attempts to have Terri’s Law declared unconstitutional, pursuant to the law’s requirements, a judge has appointed a guardian ad litem–Professor Jay Wolfson, of the College of Public Health at the University of South Florida in Tampa –to represent Terri’s interests.

There has been some confusion as to whether Wolfson replaces Terri’s quasi-estranged husband Michael Schiavo as guardian of Terri’s person. (I use the term “quasi-estranged” because Schiavo effectively shattered the sanctity their marriage years ago by entering a committed relationship with another woman and starting a family with her.) He does not. Wolfson’s sole responsibilities are to determine whether Terri should be allowed a swallow test, whether she should be provided rehabilitation, and to write a report with his recommendations about these matters–all within 30 days. In the meantime, Schiavo remains fully in control over Terri’ life and care (or the lack thereof)–with the exception that he cannot, for now, remove her tube-supplied food and water.

A little known but interesting facet of this case is that Wolfson is not the first guardian ad litem appointed to represent Terri’s interests. When Schiavo first petitioned the court for permission to dehydrate his wife in 1998, he properly admitted that he had two significant conflicts of interest: He was likely to want to remarry and if Terri died, he would inherit the more than $700,000 then on deposit in her trust account. (For those who have not followed this case, Terri received the money in a medical malpractice lawsuit.)

Because of these conflicts of interest, the Probate Court appointed Richard L. Pearse Jr. of Clearwater , Florida , as Terri’s guardian ad litem and instructed him to investigate the matter and report back with a recommendation. Pearse filed his report with the court on December 28, 1998 urging that the court deny the petition to remove Terri’s food and water.

Considering that the Pearse’s report was written long before the Schiavo case became an international cause celebre, it makes interesting reading. The guardian ad litem supported Schiavo’s position on some points and the Schindlers on others. The following are its pertinent portions:

*Pearse unambiguously accepted the diagnosis that Terri is in a persistent vegetative state (PVS) based on the opinions of two doctors, one who treated her and one who consulted on the case. This diagnoses was–and remains– disputed by Terri’s parents, Bob and Mary Schindler. Indeed, subsequent to Pearse’s report, the Schindlers energetically attempted to garner evidence that she is conscious. To some degree, they have succeeded: Four board certified neurologists, two board certified internists, one neuro-psychologist, and two speech pathologists have testified in person or by affidavit that Terri is not PVS. These opinions were reinforced by the affidavits of three nurses who cared for Terri in the mid-1990s and who claim to have observed her being interactive. Moreover, millions have viewed videos of Terri and been shocked by the extent to which she appears to aware and awake. (The courts have ruled consistently that Terri is PVS.)

*Pearse claimed that Terri has muscle contractures despite receiving “regular physical therapy.” He may have assumed that she received such care–it is routine for bedridden patients, after all. Yet, according to Patricia Anderson, the Schindler’s attorney, there are no entries indicating that PT was ever performed in Terri’s chart after 1992. Indeed, in 1998, when a new doctor urged Schiavo to approve an evaluation of Terri so that a plan of physical therapy could be developed, he refused to permit it.

*Pearse confirmed the charge by the Schindlers that once the medical malpractice money was in the bank, Schiavo began to refuse medical treatment for Terri, writing:

After February 1993, Mr. Schiavo’s attitude concerning treatment for the ward apparently changed. Early in 1994, for example, he refused to consent to treat an infection from which the ward was then suffering and ordered that she not be resuscitated in the event of cardiac arrest. The nursing home where she resided at that time sought to intervene, which ultimately led the ward’s husband to reverse his decision and authorize antibiotic treatment.

Perhaps because of the intervention by the home, Schiavo soon moved Terri to a different nursing facility.

*Schiavo admitted to the guardian ad litem that he had at least “two romantic involvements” after Terri’s collapse. “It is apparent to me,” Pearse wrote the court, “that he has reached a point that he has no hope of the ward’s recovery and wants to get on with his own life.” (To say the least. At the time of Pearse’s investigation, Schiavo was already living with the woman who would become the mother of his children.)

*Contrary to Schiavo’s allegation on Larry King last week that the Schindlers “really basically didn’t have any care with Terri,” Pearse painted a vivid picture of parents worried deeply about the quality of care their daughter was receiving and profoundly committed to remaining involved in her life:

From the time of the ward’s accident, the ward’s parents have been vitally interested in her welfare . . . After the falling out between the ward’s parents and her husband, Mr. and Mrs. Schindler pursued removal litigation in an effort to have Mr. Schiavo removed as their daughter’s guardian and to have themselves appointed guardians of her person . . . They have also pursued litigation against him to gain access to medical and financial information concerning the ward which was withheld by the ward’s husband, with only partial success. They express extreme frustration with the current situation in which they have virtually no input into the decision making process concerning their own daughter. The ward’s parents visit her regularly but at times when they won’t have to confront Mr. Schiavo.

Moreover, rather than the Schindlers not being interested in seeing Terri, as was asserted on Larry King, Pearse noted that it was Schiavo who “has isolated the ward from her parents.”

*As of April 4, 1998 , Terri’s trust fund held $713,828.85. “Thus,” wrote Pearse, “Mr. Schiavo will realize a substantial and fairly immediate financial gain if his application for withdrawal of life support [tube-supplied food and water] is granted.” (Schiavo now claims that there is only $50,000 left in the account, the bulk of the money having gone to pay his attorneys.)

*At the time of the report, only Schiavo claimed that Terri would not wish to be kept alive if severely incapacitated. “However,” Pearse opined, “his credibility is necessarily adversely affected by the obvious financial benefit to him of being the ward’s sole heir at law in the event of her death while still married to him. Her death also permits him to get on with his own life.” (Subsequent to the filing of the report, and perhaps in response to it, Schiavo’s brother and sister-in-law came forward to claim Terri made similar statements in their presence. In this regard it is worth noting that no member of Terri’s family, or any of her friends, recall her ever making any such statements to them.)

*Pearse concluded, “Given the inherent problems already mentioned, together with the fact that the ward has been maintained the life support measures sought to be withdrawn for the past 8 years, it is the recommendation of the guardian ad litem that the petition for removal be denied.”

UNFORTUNATELY, Pearse’s opinion held scant sway with the court. After filing his report, he requested further court instructions to authorize him to continue to represent Terri as guardian ad litem. Schiavo’s attorney, George Felos objected, and attempted to have Pearse removed for bias. This attempt failed but after his report was received, Pearse was discharged from participating any further in the case. And despite Schiavo’s continuing conflicts of interest–which only deepened on the personal level as he sired children–no other guardian ad litem was ever appointed to represent Terri during the years of litigation, proceedings that culminated in an October 15, 2003 court order requiring Terri Schiavo to be deprived of all water and food toward the end that she dehydrate to death.

Wesley J. Smith is a senior fellow at the Discovery Institute and an attorney for the International Task Force on Euthanasia and Assisted Suicide. His current book is the updated and revised “Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder.”