http://www.flcourts.org/pubinfo/summaries/briefs/03/03-1242/Filed_08-
07-2003_JurisdictionSchindler.pdf

IN THE SUPREME COURT OF FLORIDA
CASE No. SC03-1242
In Re: THERESA MARIE SCHIAVO
Incapacitated.
ROBERT and MARY SCHINDLER,
Petitioners,
v.
MICHAEL SCHIAVO,
Respondent.
JURISDICTION BRIEF
OF PETITIONERS, ROBERT AND MARY SCHINDLER
Petition for Discretionary Review of an Order of
the Second District Court of Appeal Case No 2D02-5394
Affirming the Trial Court's Order of Withdrawal of
Food and Water from an Incapacitated Ward
PATRICIA FIELDS ANDERSON, ESQ.
Fla. Bar No. 352871, SPN 00239231
PATRICIA FIELDS ANDERSON, P.A.
447 Third Avenue North, Suite 405
St. Petersburg, FL 33701
727 / 895-6505; 898-4903 (facsimile)
Attorney for Petitioners
i
TABLE OF CONTENTS
TABLE OF CITATIONS AND
AUTHORITIES......................................
ii
STATEMENT OF THE CASE AND THE
FACTS..................................
1
SUMMARY OF THE
ARGUMENT........................................................
4
ARGUMENT..............................................................
.........................
....
5
CERTIFICATE OF
SERVICE...............................................................
..
10
CERTIFICATE OF
COMPLIANCE........................................................
10
ii
TABLE OF CITATIONS AND AUTHORITIES
STATE CASES Page
Corbett v. D'Alessandro, 487 So.2d 368 (Fla. 2d DCA
1986)..............
6
In re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA
1984)........
6
In re Guardianship of Browning, 568 So.2d 4 (Fla.
1990)...................
Seriatim
In re Guardianship of Schiavo, 780 So.2d 186 (Fla. 2d DCA
186)(Schiavo
I)....................................................................
................
2
In re Guardianship of Schiavo, 792 So.2d 551 (Fla. 2d DCA
2001)(Schiavo
II)...................................................................
..............
3
In re Guardianship of Schiavo, 800 So.2d 640 (Fla. 2d DCA
2001)(Schiavo
III)..................................................................
..............
3, 7
In re Guardianship of Schiavo, __ So.2d __, 2002 WL 31817960
(Fla. Cir. Ct.
2002).................................................................
..............
4, 8
In re Guardianship of Schiavo, 2003 WL 21295656 (Fla. 2d DCA
2003)(Schiavo
IV)...................................................................
.............
4
John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d
921 (Fla.
1984).................................................................
....................
6
Krischer v. McIver, 697 So.2d 97 (Fla.
1997)......................................
9
iii
Satz v. Perlmutter, 379 So.2d 359 (Fla.
1980)......................................
6
State v. Klayman, 835 So.2d 248, 252(Fla.
2003).................................
5
CONSTITUTIONAL PROVISIONS
Florida Constitution, Art. I
§2..............................................................
5
Florida Constitution, Art. I
§3..............................................................
5
Florida Constitution, Art. V §3(b)(3), §3(b)(7),
§3(b)(1)......................
4
STATUTES
Fla. Stat.
§765.101
(12)..................................................................
.......
4
Fla. Stat.
§765.401
(3)...................................................................
........
7
OTHER AUTHORITIES
http://www.census.gov/statab/ranks/rank04.html. 10
http://www.censtats.census.gov/data/FL/390128280.pdf 10
Page 1 of 10 Pages
STATEMENT OF THE CASE AND THE FACTS
This is the third time review has been sought in this Court, but the
first time a full evidentiary record concerning the ward's medical
condition and prognosis has been present. In February, 1990, Theresa
Marie Schiavo ("Terri" or "the ward")collapsed in her home, and
interruption of blood flow to her brain resulted in significant brain
damage. She left no advance directive expressing her wishes about
medical decisions in the event of her incapacity.

Terri Schiavo breathes on her own. She is not on a ventilator or
respirator. Although she swallows, she is sustained through a gastric
feeding tube. She is not in distress or imminent danger of death.
In November, 1992, Michael Schiavo testified to a Pinellas County jury
hearing his medical malpractice claim against Terri's doctors. He
made no mention that Terri would rather die than live as a disabled
person, but he did testify that he loved his wife and intended to
take care of her the rest of her life. The jury awarded significant
money to Schiavo, individually and as Terri's guardian. Some
eight months later – shortly after he received the verdict money –
Schiavo ordered Terri's caregivers not to treat an infection she had
developed, in the stated hope she would expire. In the following
years up until the present, Schiavo permitted Terri to have no
therapy of any kind, whether speech, physical, or any other sort,
1/ In November, 2002, the parents discovered a 1991 total-body bone
scan report that had been done on Terri some 53 weeks out from her
collapse. They presented the report to the trial court, asking for
time to do further investigation.

The scan showed numerous skeletal irregularities, including a
fractured spine, multiple ribs showing signs of injury, and a
suspicious area of abnormal ossification on her right femur. The
radiologist concluded Terri had a history of trauma; the
trial court deemed the report "irrelevant."

Page 2 of 10 Pages
aimed at improving her condition.1/

In May, 1998, Schiavo filed his petition for withdrawal of feeding and
hydration, to which the parents Robert and Mary Schindler
("Petitioners" or "parents") objected. That petition resulted in a
bench trial before Hon. George Greer of the Sixth Judicial Circuit in
January, 2000. In that trial, Schiavo testified for the first time
that years earlier Terri had said at the age of 20 or so that she
would not want to be a burden to anyone. Judge Greer found this to be
clear and convincing evidence that Terri would want to die rather
than live as a disabled person and, further, found her to be in a
persistent vegetative state.

The following month, Judge Greer entered his first order granting the
request to starve and dehydrate Terri.
The parents appealed that order to the Second District Court of
Appeal, and appealed its affirmance to this Court, which denied
review. In re Guardianship of Schiavo, 780 So.2d 186 (Fla. 2d DCA)
("Schiavo I"), rev. den. 789 So.2d 348 (Fla. 2001). Shortly after
Terri's death vigil began in the spring of 2001, dramatic new
Page 3 of 10 Pages evidence surfaced, and Terri's feedings were
resumed when the parents filed a motion for relief from judgment,
supported by affidavits from seven physicians and health care
professionals that Terri is not in a persistent vegetative state and
could be helped with proper therapy. Judge Greer denied the motion
summarily. The parents again appealed to the Second District, and
Schiavo cross-appealed the resumption of the feedings. The Second
District reversed and remanded, affording the parents the opportunity
to file an amended motion, concluding "that a final order entered in
a guardianship adversary proceeding, requiring the guardian to
discontinue life-prolonging procedures, is the type of order that may
be challenged by an interested party at any time prior to the death
of the ward on the ground that it is no longer equitable to give
prospective application to the order." 792 So.2d
551, 553 (Fla. 2d DCA 2001)("Schiavo II").

Upon remand, Judge Greer again summarily denied the parents' motion
without hearing, and the parents again appealed to the Second
District. This time, the Second District gave specific instructions
as to the format of a mandated evidentiary hearing, an order appealed
by Schiavo to this Court, which again denied review. 800 So.2d 640
(Fla. 2d DCA
2001)("Schiavo III"), rev. den. 816 So.2d 129 (Fla. 2002).

At the evidentiary hearing in October, 2002, six physicians testified
for six days, and videotapes of three of the physicians' examination
of Terri were
Page 4 of 10 Pages
introduced into evidence and are part of the record now. Once again,
Judge Greer ordered Terri's death deciding that "cognitive function
would manifest itself in a constant response to stimuli," thereby
adopting a medical standard inconsistent with Florida's statutory
definition of persistent vegetative state. So.2d ,
2002 WL 31817960, *2 (Fla. Cir. Ct. 2002). See Fla. Stat. § 765.101
(12).

Once again, the parents appealed to the Second District, which
affirmed the trial court on an abuse of discretion standard. So.2d ,
2003 WL 21295656(Fla. 2d DCA 2003)("Schiavo IV"). The parents timely
filed their motion for rehearing, rehearing en banc and request for
certified question and amended that motion. Upon denial, Petitioners
filed their early Notice of Appeal. The Second District stayed
issuance of its mandate until 5 p.m. August 25, 2003.
Discretionary jurisdiction is sought pursuant to Art. V § 3(b)(3), § 3
(b)(7),
and, arguably, § 3(b)(1).

SUMMARY OF THE ARGUMENT
In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990) and its
predecessors require that this case be judged by a clear and
convincing evidence standard as to all elements necessary to end this
young woman's life, including her medical condition and prognosis,
especially given the possibility of foul play and neglect and the
unified objections of her blood relatives.

2/ Death is not an ordinary verdict in the civil context, but due
process necessarily is implicated where a life will end based on a
record of evidentiary conflicts on the fundamental elements of the
petitioner's case. See State v.Klayman, 835 So.2d 248, 252(Fla. 2003)
("We have held that the Due Process Clause of the Fourteenth
Amendment forbids a State to convict a person of a crime
without proving the elements of that crime beyond a reasonable
doubt.").

3/ Article I § 2 of the Florida Constitution, entitled "Basic
Rights," provides: All natural persons, female and male alike, are
equal before the law and have inalienable rights, among which
are the right to enjoy and defend life and liberty, to pursue
happiness, to be rewarded for industry, and to acquire, possess and
protect property;. . . No person shall be deprived of any right
because of race, religion, national origin, or physical disability.
(emphasis supplied).
Page 5 of 10 Pages

ARGUMENT
This is the first case of euthanasia in Florida's reported case law.
This case pits two fundamental constitutional rights against each
other, and implicates a third,2/ in the most tragic circumstances
imaginable. Does a disabled young woman who collapsed more than
thirteen years ago, who has received no therapy of any sort for
years, who survives only on a feeding tube, who is in no distress or
imminent danger of death, and who left no advance directive have the
inalienable right to continue living, as her parents maintain and as
the Florida Constitution guarantees?3/

Or may her husband assert her constitutional right of privacy in
seeking court approval to stop providing her with food and water?
Where, as here, there is an acknowledged sharp conflict among the
parties and medical experts
Page 6 of 10 Pages
about the ward's current medical condition and her prognosis and her
wishes, due process and previous holdings of this Court demand that
each element necessary to end the ward's life be proved by clear and
convincing evidence.In previous cases involving the withdrawal of a
means of medical treatment, the State was a party, seeking to protect
society's interest in life. In those cases, the patient's family or
friends were in agreement in seeking to end the patient's life.
In some of those cases, the patient had executed a written advance
directive.
In re
Guardianship of Browning, 568 So.2d 4, 7-8 (Fla. 1990); Satz v.
Perlmutter, 379 So.2d 359, 360 (Fla. 1980)(". . . where all affected
family members consent")(emphasis supplied); Corbett v. D'Alessandro,
487 So.2d 368 (Fla. 2d DCA 1986);
In re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA 1984). See
also, John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d
921 (Fla. 1984)(advance directive).But what are the contours of this
constitutional right of privacy, where the patient is merely
disabled, unable to communicate her present wishes, and where
there is no consensus about her condition or prognosis and where her
blood relatives vehemently object to ending her life? The
implications of this case have alarmed many disabled persons and
organizations, who fear that "quality of life" determinations will be
presented to the court masquerading as a "right to privacy"
4/ Four amicus briefs were filed in support of the parents during the
last appeal to the Second District, one of which was from a coalition
of disability rights organizations.
Page 7 of 10 Pages
argument.4/ What restraint does the system put on the husband who is
tired of having a disabled wife but who refuses to resign as guardian
and permit someone else to care for her, someone for whom she would
not be a burden?

Apparently sensitive to the potential for abuse, the Legislature has
required that a proxy's or a surrogate's decision to
forego "treatment" for an incapacitated person – including feeding
and hydration – be supported by clear and convincing
evidence. See Fla. Stat. § 765.401(3). Browning itself made clear
that substituted judgment as to the withdrawal of a feeding tube must
be based on clear and convincing evidence, not just of the patient's
wishes, but on the patient's medical condition and prognosis. 568
So.2d at 15 ("A surrogate must take great care in exercising the
patient's right of privacy, and must be able to support that decision
with clear and convincing evidence."). None of the reported cases
involve an intrafamily dispute nor conflicting medical opinions about
ending the patient's life.

Despite this statutory scheme and this teaching of Browning, the
Second District instructed the trial court in Schiavo III to evaluate
the medical evidence and testimony according to a simple
preponderance standard and improperly shifted the
burden to the parents. Schiavo III, supra, 800 So.2d at 645. "On
remand, we
Page 8 of 10 Pages
permitted the parents to present evidence to establish by a
preponderance of the evidence that the judgment was no longer
equitable." Schiavo IV, supra, 2003 WL
21295656 at *2 (Fla. 2d DCA 2003).

At the evidentiary hearing, the two physicians chosen by the parents
(one a neurologist and one a neuroradiologist) both testified that
Terri is not in a persistent vegetative state and that medical
protocols exist that have improved the condition of other, similar
patients. The parents had already submitted affidavits from five
other health care professionals to the trial court. The
neuroradiologist – with nearly fifty years practicing medicine –
testified that certain portions of her brain showed a
distinctly more normal appearance in the CT scan done for this
hearing, when compared to an earlier scan. The physicians chosen by
Schiavo disputed these points. Thus, this record demonstrates a
substantial and irreconcilable conflict on a crucial point: her
current medical condition and her chances for improvement.
Where there is this kind of doubt in the record, Terri's life should
not be ended.

The Second District's improper use of a preponderance standard of
proof in the trial court and an abuse of discretion appellate review
standard makes for a lethal combination for the stable but disabled
patient, like Terri, who shows no sign of dying on her own, and marks
a sharp abandonment of Browning's underlying principles of caution
and unanimity.

5/ According to the United States Census Bureau statistics for the
2000
(continued...)
Page 9 of 10 Pages
That Browning's deference to the right of self-determination is not
without limits was vividly demonstrated in Krischer v. McIver, 697
So.2d 97 (Fla. 1997).

In that case, a competent man was before the Court, asking for the
right to choose the time and manner of his own death in the future
with the assistance of his physician. This Court distinguished its
earlier opinions, including Browning, and found that "[f]irst, the
state has an unqualified interest in the preservation of life."
697 So.2d at 103. The Court found those other interests outweighed
the patient's right of privacy. Terri, herself, has a constitutional
right not to be put to death just because she's disabled, aside from
society's more generalized interest in the preservation of life –
especially where she has never been given a chance to get
better. This right must be balanced against Schiavo's late-blooming
assertion of her right of privacy in such a way as to preserve her
life, under these circumstances, but the Second District did not
adhere to the protection afforded by the clear and convincing
evidence standard.

While this may be the first adjudicated case of intra-family
disharmony and contested medical condition to reach this Court,
undoubtedly it will not be the last. Inevitably, some other case
involving a family's disagreement whether to end the life of a
relatively young disabled person will come before this Court.5/ This
Court
5(...continued)
census, Florida ranks number one in the nation for residents over age
65, with 17.57% of Floridians falling into that category. See
http://www.census.gov/statab/ranks/rank04.html. Disability is no
respecter of age, however, and the Census Bureau estimates some
23.5% – nearly one out of every
four – of the 2.2 million non-institutionalized persons of all ages
living in the Tampa-St.Petersburg-Clearwater area have some form of
disability. See
http://censtats.census.gov/data/FL/390128280.pdf
Page 10 of 10 Pages
should take jurisdiction of the case to correct a manifest injustice
and to make clear that Florida does not elevate form over substance,
nor has it become a killing ground for the most vulnerable among us.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true copy hereof was mailed on this 4th day of
August, 2003 to: George J. Felos, Esq., Attorney for Appellee, 595
Main Street,
Dunedin, FL 34698.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY this computer-generated jurisdiction brief was
prepared in Times New Roman typeface and in 14 point size and
otherwise
complies with the dictates of the Rules of Appellate Procedure.
PATRICIA FIELDS ANDERSON, ESQ.