New motions in Terri Schiavo case could nudge judge to void original order

CLEARWATER (FBW)—Challenging a judge’s ruling whether there was “clear and convincing” evidence Terri Schiavo would not have wanted to live in her physical state, attorneys Mar. 4 won a small victory when Sixth Circuit Court Judge George W. Greer scheduled an expedited Mar. 8 hearing on that matter and another related to Terri’s medical condition.

“What we are asking the court to do is basically admit a huge mistake was made,” attorney David W. Gibbs told Florida Baptist Witness Mar. 5. “We are asking Judge Greer to do what is the only noble and right thing.”

The action came the first full week after Greer’s Feb. 25 order directing the cessation of nutrition and hydration in the case of the 41-year-old disabled woman whose family believes her husband and guardian, Michael Schiavo, has not acted in her best interest.

In 1990 Terri Schiavo suffered brain damage after her heart stopped beating. Some doctors have said she is in a Persistent Vegetative State, while others disagree and say she is in a Minimally Conscious State and with rehabilitation can improve.

Terri Schiavo’s parents, Bob and Mary Schindler, disagree with Michael Schiavo over whether she should live. Although Michael Schiavo says his wife would want to die, no written request from Terri Schiavo exists. Michael Schiavo lives with his girlfriend, with whom he has fathered two children.

Both motions Greer plans to hear Mar. 8 request a “relief from judgment” of Greer’s Feb. 11, 2000, order to permit Michael Schiavo to withdraw Terri’s feeding and nutrition tube. One motion is based on Greer’s ruling that the testimony of Terri’s college and childhood friend, Diane Christine Meyer, about Terri’s end-of-life wishes, was not credible. The other asks Greer to consider new medical advances in the area of brain injuries and allow for an updated evaluation of Terri’s condition.

Meyer was considered a key witness in sharing Terri’s 1982 views about the Karen Ann Quinlan case. Quinlan was a young woman whose parents fought the courts to remove her from a respirator in 1976. Quinlan did not die at that time, however, but lived in a nursing home until her death in 1985. Meyer had testified that she and Terri talked about Quinlan after watching a movie about the case, and that Terri, who was 19-years-old at the time, did not approve of the parent’s action in removing their daughter’s life support.

The motion asserts the court ruled incorrectly in determining Meyer’s testimony irrelevant because it based its ruling on the presumption that Quinlan was not alive in 1982 and therefore determined the conversation in question would have taken place before Terri was an adult.

Gibbs said the case is further complicated because it’s not a criminal case where new evidence would demand a new trial, but it’s a civil case where there are “not a lot of precedents on how you handle the death penalty.” For this reason the motion does not ask that Greer “void” his original order or stay action, but that based on this new evidence, the order be “vacated.”

“Diane was someone Terri would have been completely open and honest with,” Gibbs said, in emphasizing the importance of her testimony. “I am very hopeful that [Greer] does what I think to be the right thing.”

A motion asking for a current evaluation of Terri’s condition given new advances in medicine and a relatively new description of persons in a Minimally Conscious State (MCS), also asks the court permit an evidentiary hearing to determine if Terri would wish to refuse her “assisted feeding” as the court has previously ruled.

The medical-related motion lists the following six items as grounds for vacating Greer’s Feb. 2000 order:
• Mrs. Schiavo’s previous evaluations are out-dated;
• There is a high rate of misdiagnosis of persistent vegetative state (and) some severely brain-damaged patients do improve;
• Mrs. Schiavo has moved into a “minimally conscious state” since her 2002 evaluations three years ago;
• A new neurological test can determine whether Mrs. Schiavo is minimally conscious;
• Therapeutic methods developed since 2000 may help Mrs. Schiavo learn to swallow;
• Mr. Schiavo testified that he would want Mrs. Schiavo to receive any treatment that would help her.

With the medical motion are 17 affidavits from neurology and speech specialists from throughout the country who have offered their observations and services, to include the administration of swallowing tests and therapies, MRI’s and other diagnostic tests. Many refer to recent gains in the area of understanding and treating brain injuries.

Gibbs told the Witness the second of two motions Greer will hear Mar. 8 is based on information that would not have been available when Terri was previously evaluated.

“What everyone is in agreement on is that medically speaking there have been major developments in the field of technology in the past three years,” Gibbs said. “What we believe is that if you look at the evidence of 2005, with what we know today, Terri is not in a Persistent Vegetative State.”

Describing what is know about the brain’s function, Gibbs said previously medical experts compared it to a computer’s hard drive.

“The miracles we are seeing and the new studies indicate the brain works more like an Internet,” Gibbs said. “The design the Lord builds into our brain can rebuild the connection.”

At the Mar. 4 hearing, Greer also scheduled time for expedited hearings throughout the week of March 7-11 to consider 11 motions related to his Feb. 25 order authorizing the Mar. 18 cessation of Terri’s feeding and hydration, absence any stays in the matter or orders issued by that time.

Greer also set aside Wed., Mar. 9 to hold a hearing to determine whether Florida’s Department of Children and Families can intervene in the case. Greer had previously ordered, Mar. 3 that the motion for intervention should not be sealed, as DCF had requested. The motion was made available to the media, Mar. 4.

DCF’s motion asks for intervention in the case due to an ongoing investigation of allegations of abuse of Terri Schiavo received on or about Feb. 18 and Feb. 21

The motion states DCF is obligated by law to investigate cases of abuse which might call into question the actions of the ward’s guardian in relation to, among other things:
• Current confinement issues at the ward’s residence;
• Denial of access to legal counsel on different occasions is a supervision issue never previously investigated and goes directly to health decisions;
• Experimental procedures performed without proper medical and legal procedures observed;
• Lack of manipulation of ward’s arms causing severe contractures.

The Schindler’s have long contended that abuse may have occurred at the time of Terri’s injury, and have sought DCF’s action in regard to her care.

George Felos, an attorney for Michael Schiavo, has said repeatedly that Terri is not cognizant of her surroundings, that her husband loves her and feels obligated to respect what he has said are her end-of-life decisions, and that DCF’s involvement in the case is nothing more than political grandstanding.

Felos told the Witness Feb. 23 that he considers Terri to be “terminally ill” and that withholding nutrition and hydration in her case is appropriate care, despite the belief by many that this action will cause her death, rather than a disease or illness.

In other action, Greer reserved the right to retain jurisdiction on motions filed which relate to the fitness of her husband, Michael Schiavo, to continue to serve as her guardian; and a motion asking for Terri to be assigned a guardian ad litem who would initiate divorce proceedings on her behalf.

The Second District Court of Appeal Mar. 1 released an order granting the expedition of an appeal of Greer’s Feb. 11, 2005 order denying a motion that asserts Terri has been denied her constitutional rights under the law and asks she be appointed an independent attorney. The order says no new arguments will be heard in the case, and that they will attempt to make a final decision before Mar. 18. In light of their pending decision, they deferred a ruling on an emergency stay of the order until Mar. 17 at 5 p.m. EST or earlier.

To see related stories, go to the Special Reports section on the Witness Web site at “Terri Schiavo: A Life at Stake.” To view the motions and related court documents, go to: www.Terrisfight.org.