David Randolph Smith

Senator Frist & The Terry Schiavo Case

(AFP/File/Luke Frazza)

  • 4/6/05: An editorial in the New York Times, "The Judges Made Them Do It" noted that although Senator Frist had "tried to distance himself from Mr. DeLay's attack on the judiciary [DeLay said "the time will come" to make the judges in the Schiavo case "answer for their behavior]. . . . he complained 'of a real fire lighted by the Democrats around judges over the past few days.' By Democrats? The senator should listen to what's being said on his side of the aisle, if he can bear it."

Senator Frist's out-front position on the Schiavo case was polictical pandering. Frist took the Senate floor to decree that Terry Schiavo was not in a "persistent vegetative state" because he had reviewed family home videotapes of her condition. Although court-approved neurologists diagnosed Terry Schiavo as lacking purposeful cognitive function and being in the "PVS" state, for Dr. Frist, those physicians relied on "wrong" and "incomplete data." The Washington Post, in Viewing Videotape, Frist Disputes Fla. Doctors' Diagnosis of Schiavo reports that his "comments raised eyebrows in medical and political circles alike. It is not every day that a high-profile physician relies on family videotapes to challenge the diagnosis of doctors who examined a severely brain-damaged patient in person. . . In addition to the speeches, Frist backed a Senate strategy that threatens criminal sanctions against anyone who keeps Schiavo from attending a Washington hearing next week, to which she and her husband Michael Schiavo were invited early yesterday. . . medical professionals questioned the appropriateness of Frist challenging court-approved doctors who have treated Schiavo. Laurie Zoloth, director of bioethics for the Center for Genetic Medicine at Northwestern University, said she was surprised to hear Frist weigh in, given that he has not examined Schiavo. "It is extremely unusual -- and by a non-neurologist, I might add," Zoloth said in an interview." Frist's spokesmen say this eleventh hour intervention by Senator Frist has nothing to do with politics or an appeal to the Republican "base." But even conservative activist Gary Bauer said, Frist's intervention carries political risks because "the general public has been told she's in a vegetative state," and voters may view his actions as inappropriate meddling. Michael Schiavo's lawyers says Frist's (and the GOP intervention) is "nothing short of thuggery." A New York Times article quoted a number of legal experts. "It's simply outrageous," said Charles Fried, a law professor at Harvard who served as the solicitor general in the Reagan administration. "It is abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense." Professor Lawrence Tribe stated: "McCarthy, for all his abuses, did not reach out and try to undo the processes of a state court." "You cannot issue a subpoena that interferes with a constitutional right," said Arthur Miller, an expert on civil procedure at Harvard, referring to what he said was Ms. Schiavo's right to die. "It's a blunderbuss. It smacks of desperation."

I would concede one strong point to Senator Frist. Terry Schiavo should have received an MRI or PET scan before the feeding tube was removed. If there was reasonable doubt about the diagnosis of PVS, the feeding tube should not have been removed. Law reform should require that in the absence of a written directive, there must be clear and convincing evidence of both the PVS state and the wishes of the patient to withdraw food and hydration.

The courts have long decided that patients have a fundamental right to refuse medical treatment, including feeding tubes and respirators, and that this fundamental right of privacy and self determination is not lost when a patient lapses into a permanent vegetative state. Moreover, the AMA has detailed guidelines for diagnosis of the persistent vegetative state and has issued an ethics opinion upholding the right of decision makers to terminate life support and feeding for patients in this condition.In the Schiavo case there was clear medical evidence of the persistent vegetative state diagnosis. In fact in 1999, then-Gov. Bush signed the Advance Directives Act, which lets a patient's surrogate make life-ending decisions on his or her behalf. The measure also allows Texas hospitals to disconnect patients from life-sustaining systems if a physician, in consultation with a hospital bioethics committee, concludes that the patient's condition is hopeless.

Senator Frist should recall the Karen Quinlan case. The Quinlan case and its progeny established that an incompetent patient has a right of privacy which may be exercised by substitute decisionmakers. Senator Frist is out of bounds in interfering not just with the privacy of Terry Schiavo and her husband, but with judicial and medical determinations of her medical condition and right to refuse treatment.

In 1986 I wrote an article in the Cornell Law Review, Legal Recognition of Neocortical Death, in which I proposed that patients in the persistent vegetative state, should be declared legally dead (thus allowing re-marriage, insurance, inheritance, etc) but that family members could elect to maintain biological existence. This article is cited, if I may say so, as "an excellent article" in the leading Bioethics casebook used in law schools, Bioethics: Healthcare, Human Rights and the Law (2002) (Prof. Arthur LaFrance) and is cited by the American Medical Association Joint Report of the Council on Ethical and Judicial Affairs, "Persistent Vegetative State and the Decision to Withdraw or Withhold Life Support" (JAMA. Jan. 19,1990; 263(3): 426-430). See aslo a 1987 article in The American Journal of Law and Medicine co-authored with Dr. Ronald Cranford ( a neurologist from the Hennepin Medical Center in Minnesota).

Under the "legal definition of neocrotical death" proposal, Terry Schiavo should be declared legally dead but if her parents and siblings want to maintain her biological existence, that's entirely appropriate. Perhaps the time for that law has now come. Ironically, Senator Frist wrote a book in 1989 called Transplant: A Heart Surgeon's Account of the Life-and-Death in which he advocated changing the definition of "brain death" to include anencephalic babies. Anencephalic infants are effectively in the same medical condition as Terri Schiavo. Terry Schioavo suffered a physical trauma that put her into a vegetative state while the anencephalic infants are born with a functioning neocortex.Frist realized then that when human beings completely lack higher brain functions, it is ethical and moral to make treatment decisions that end biological existence.

What is wrong is for a politician/doctor to interfere with another physician's neurological diagnosis and a patient's right of privacy when that case is pending in the courts.