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Tuesday, October 28, 2003
Inspired by James Taranto (scroll down to "Maybe We Should Call It a Bye-Ku"):

Haughty French looking
Brain was seared in Vietnam
Taxes need raising

In other news, I have to take issue with Taranto's posts (here, here, here and here) concerning Terri Schiavo. Taranto correctly points out that Schiavo is not brain dead, but consistently misses (or, given his intelligence, chooses to miss) the point, which is that Mrs. Schiavo, were she competent, could elect not to receive any treatment, and could also elect to refuse nutrition. Since she is not competent, the law provides that she can still act through a proxy such as a guardian. Without any written evidence of her desires, in the form of a living will, the parties (her husband on the one hand and her parents - and apparently Jeb Bush - on the other) are reduced to arguing about what Taranto dismisses as "secondhand reports of offhand comments."

First, it is not clear that the reports are secondhand or that the comments were offhand. Personally, I would not lightly make a comment like "I would not want to live like that" or "Don't let me live like that".

Second, even if it is true that these are "secondhand reports of offhand comments", no one is claiming that this is the best possible evidence, but it is evidence. And I have seen no reports of comments leaning the other way.

Third, and most importantly, Taranto is clearly wrong when he tries to argue (here) that the absence of a living will by Mrs. Schiavo should doom her to continued existence in an "undead" persistent vegetative state. Yes, her desires would presumably be clear if expressed in a living will. Unfortunately, not many twenty five year olds (Schiavo's age when she was last competent) have them. No one has any real desire to think about the possibility of being in Schiavo's situation. It most frequently comes up when discussing your Last Will and Testament, when the subject of ones death is already on the table. Not too many twenty five year olds have discussed estate planning.

The absence of a living will creates no presumption one way or the other as to a person's desire to continue, commence, withdraw or withhold medical treatment or procedures such as feeding tubes. Florida law (and every other law permitting living wills with which I am familiar) states that where there is no living will, a proxy will be appointed from a ranked list of classes of people, and that proxy may make health care decisions:

Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

Florida Statutes, Title XLIV, Chapter 765, Section 401, emphasis added.

In the Schiavo case, even according Taranto, there is an indication of what his wife would have chosen. The issue of the weight to be accorded to that indication was settled by the Florida Legislature in the statute. It is given controlling weight.

As near as I can tell without being actually involved in representing one of the parties, the best medical evidence available is that Mrs.Schiavo, while not dead, is gone, and she won't be coming back. Her husband and her parents both have my sympathy. For their sakes, I wish it were not so.

But it is so, and the parties simply have to deal with both the situation and the law as they find it, not as they would wish it to be.
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