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Removal of guardian sought in right-to-die case
Posted By Diana Lynne On 11/19/2002 @ 1:00 am In Front Page | Comments Disabled
CLEARWATER, Fla. – The attorney fighting a husband’s efforts to remove the feeding tube from his brain-damaged wife has filed a petition seeking his removal as her guardian, claiming he has a conflict of interest due to admitted adultery.
Pat Anderson filed the petition last Friday on behalf of the parents and siblings of Terri Schindler-Schiavo who have mounted a four-year court battle to block the efforts of Michael Schiavo to
have Terri’s feeding tube removed. The petition further seeks the appointment of one of the plaintiffs as the successor guardian.
As WorldNetDaily reported, Circuit Judge George Greer is scheduled to rule Friday on the removal of the feeding tube. Though severely
brain-damaged, Terri breathes and maintains a heartbeat and blood pressure on her own. She also can
see, and video shown in court apparently demonstrates she can move her limbs on command. But she needs a feeding tube to sustain her life. Its removal would cause her to die by dehydration and starvation.
Greer already ruled in favor of Schiavo in February 2000. An appellate court, after affirming Greer’s ruling in one trial, reversed itself and remanded the case back down to the trial court, essentially ordering a new trial to determine Terri’s condition, the availability and efficacy of treatments for her and their acceptance within the medical community.
In that trial, held late last month, medical experts petitioned by Schiavo’s attorney, George Felos, as well as a court-appointed neurologist, testified that Terri is in a persistent vegetative state, one of the conditions necessary according to state statute to legally permit the removal of her feeding tube.
Physicians solicited by Anderson testified Terri shows cognitive function and would benefit from treatment of her condition.
There is no written directive from Terri. In the 2000 trial, Greer ruled it was her wish to have the feeding tube removed on the basis of testimony by Schiavo, his brother and sister-in-law that she made “casual statements” to them that she would not want to be kept alive artificially.
Schiavo, who maintains he’s determined to carry out what he believes to be Terri’s wishes, told WND he is engaged and has fathered a baby with his fiancee, but that he would not divorce Terri.
“I moved on with a part of my life. I’m sorry that the Schindlers can’t move on with any of theirs,” Schiavo told WND.
Schiavo repeated this admission and made a similar statement to CNN’s Connie Chung in a nationally televised broadcast on Nov. 4.
The petition to remove Schiavo as Terri’s guardian cites this admission in accusing Schiavo of failing to “discharge his duties in protecting the interests of the ward” per Florida Statute 744.474, by violating her right to be treated with dignity and respect and her right of privacy. The petition argues Terri deserves a divorce.
“Fidelity is a key component of the respect and dignity that our society expects one spouse to afford the other; yet, this guardian believes that Terri’s disability releases him of his legal and moral responsibility,” Anderson stated in the petition.
According to deposition testimony, Schiavo lives with his “girlfriend” – the mother of his child. The petition asserts this violates Florida Statute 798, which makes living in open adultery a misdemeanor, and proscribes lewd and lascivious cohabitation.
Under Florida Statute 744.474, a guardian found guilty, regardless of adjudication, to any offense prohibited under Florida Statute 435.03, which includes lewd and lascivious behavior, should be removed.
“I cannot understand how anyone would take that seriously,” Felos told WND in response to the misdemeanor adultery charge. “Most people would say that it’s understandable that a healthy spouse shouldn’t be sentenced to life without companionship,” he said. Felos compared Schiavo’s situation to
that of other clients dealing with spouses afflicted with Alzheimer’s who have been institutionalized and no longer recognize their healthy spouses.
Conflict of interest?
The petition claims Schiavo also has a conflict of interest in serving as her guardian because he stands to inherit what’s left of monies awarded in a malpractice lawsuit. As WND reported, some $1.3 million, minus attorneys’ fees, was placed in a medical-care fund for Terri. Felos filed a series of petitions
seeking reimbursement for attorney fees totaling $358,434. As of last month, $110,000 remained in the fund. At that time, another attorney representing Michael Schiavo filed a petition seeking authorization of pre-payment for Terri’s cremation and burial expenses out of the fund.
The Schindlers’ petition accuses Schiavo of “wasting, embezzlement, or other mismanagement of the ward’s property” by spending the money in Terri’s medical-care fund on attorneys’ fees.
“While exhausting Terri’s money for the purpose of killing her, not one red cent could be found by Schiavo to enhance the quality of her life after receipt of the malpractice award. … [A]nd the expenditure of nothing for therapy that would reduce the pain of contractures, enhance Terri’s ability to swallow, or facilitate recovery of basic abilities is the grossest form of asset mismanagement,” Anderson stated in
Medical ‘neglect’ and ‘abuse’
The petition further argues Terri’s right as an incapacitated person to receive “necessary services and rehabilitation” per Florida Statute 744.3215 has been violated by Schiavo’s neglect to seek medical treatment.
“Schiavo has at every turn attempted to increase her incapacity through the denial of basic health and rehabilitative services such as range of motion therapy, other physical therapy, orthopedic evaluations and treatment, speech therapy, standard diagnostic tests and procedures, gynecological care, dental
care, rehabilitation evaluations and cognitive therapy,” stated the petition.
The petition references court testimony and deposition that Schiavo ordered that Terri not be treated
for a bladder infection, a condition he admitted could be fatal.
Victor Gambone, Terri’s attending physician hired by Schiavo in 1998, testified in the latest trial he was unsure whether his patient had her teeth cleaned in recent years and said she hadn’t received therapy. He said he accepted Schiavo’s word that therapy had been deemed unnecessary.
The petition also takes issue with Terri being “confined to the ‘death row’ of [a hospice] for over two years while the appeals in this case have been pending.”
The charges of “neglect” and “abuse” echo those laid out in an 850-page complaint filed with the Department of Children and Family last year. The charges were investigated and DCF officials concluded they were “unfounded with recommendations,” according to the anonymous complainant.
“The charge of embezzlement … is ludicrous given that the payment was done per order of the court,” Felos countered. He also said the issue of conflict of interest over the malpractice award and the claims of abuse and neglect were raised in three prior petitions denied by the court.
“The opposition has a pattern of dredging up filth in order to attack my client because ultimately they’re going to lose on the merits of the case, which is what the current medical condition of Terri is and what her wishes are. … They’re just attempts by the Schindlers to run an end-run around the ruling to end
life support,” Felos told WND.
Emergency motion hearing
At the age of 26, Terri Schindler-Schiavo collapsed at home in February 1990, and oxygen was cut off to her brain for several minutes. The cause of the collapse was determined to be a cardiac arrest induced by a potassium imbalance, although testimony given in the latest trial suggests Terri also suffered a neck injury.
As WorldNetDaily reported, Anderson’s further
review of Terri’s medical records to follow up on the testimony of the “suspiciously rigid neck” led to the discovery of a report of a full-body nuclear-imaging bone scan done on Terri 13 months after her brain injury. The report describes the accumulation of contrasting agent, or “hot spots,” that suggest
multiple fractures. In the words of an unnamed physician who reviewed the report at Anderson’s request,
“Somebody worked her over real good.”
The report specifically notes a compression fracture of her thigh “which is presumably traumatic,” according to the radiologist. Other “hot spots” are suggestive of fractures in her ribs, the first lumbar vertebra and several thoracic vertebrae, both sacroiliac joints, and both knees and ankles.
The report states, “the patient has a history of trauma” and “the presumption is that the other multiple areas of abnormal activity ['hot spots'] also relate to previous trauma.”
Anderson filed an emergency motion last week seeking a delay of Greer’s ruling on the removal of the feeding tube while she investigates this new medical evidence.
In arguments heard in court on the emergency motion last Friday, Anderson stressed the bone scan had never been litigated before and did not come to light, according to the trial record, in the medical malpractice lawsuit.
“It appears according to Mediplex records that the bone scan was ordered because Terri was complaining during physical therapy. She was saying ‘no’ and ‘stop,’ making noises and grimacing
during therapy,” Anderson told the court, noting the top of the bone-scan report reads, “evaluate for trauma.”
“It’s clear there is a possibility that this bone scan represents the true cause of Terri’s collapse,” Anderson argued. “I cannot imagine a more monstrous situation than a wife beater being made guardian of the woman he nearly beat to death. … The possibility hangs over this case,” she added.
Felos argued the “hot spots” on the bone scan show degenerative bone disease, not multiple fractures, and that it only showed a minor fracture in the femur.
“A possible ‘minor’ compression fraction of the femur occurring over 12 years ago has no relevance to the issue now before this court,” he further argued.
Felos filed affidavits from two of Terri’s treating physicians at the time who reportedly state the bone scan was ordered to explain the warmth and swelling of her knees and to specifically explore whether she suffered from heterotropic ossification.
Felos defined “heterotropic ossification” as “abnormal calcium growth on some portion of the bones” and, citing medical records, said the ossification, or abnormal growth, was due to osteoporosis, or bone loss, which he said could be explained by the combination of Terri’s immobility and the anti-seizure medication she was given.
“The smear of my client that he beat up Terri is unconscionable,” Felos told reporters following the court hearing. “She had a very common condition due to her degenerative bone loss. … [T]hat’s what these two treating physicians say. It’s not an indication of trauma,” he said.
When asked to explain the “evaluate for trauma” notation on the bone scan report, Felos called it “defensive medicine” on the part of the radiologist who he speculated was trying to protect himself and justify his conclusion of trauma.
When asked if his client ever beat his wife or hurt her in any way Felos responded, “Absolutely not. Absolutely not. Never.”
Greer said he would rule this week on the emergency motion. If he rules in favor of the Schindlers, an evidentiary hearing would be scheduled. Greer may also rule against the Schindlers on the emergency motion and then issue his ruling on the removal of the feeding tube as scheduled on Friday.
The petition to remove Schiavo as guardian is not expected to impact either ruling.
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