In re Guardianship of Schiavo, 2D00-1269.

• Decision Date: 24 January 2001
• Docket Number: No. 2D00-1269.,2D00-1269.
• Citation: 780 So.2d 176,26 Fla. 1
• Parties: In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated. Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 176

26 Fla. 1

In re GUARDIANSHIP OF Theresa Marie SCHIAVO, Incapacitated.

Robert Schindler and Mary Schindler, Appellants, v. Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, Appellee.

No. 2D00-1269.

District Court of Appeal of Florida, Second District.

January 24, 2001.

Rehearing Denied February 22, 2001.

Joseph D. Magri of Merkle & Magri, P.A., Tampa, for Appellants.

George J. Felos of Felos & Felos, P.A., Dunedin, for Appellee.

ALTENBERND, Judge.

Robert and Mary Schindler, the parents of Theresa Marie Schiavo, appeal the trial court's order authorizing the discontinuance of artificial life support to their adult daughter. Michael Schiavo, Theresa's husband and guardian, petitioned the trial court in May 1998 for entry of this order. We have carefully reviewed the record. The trial court made a difficult decision after considering all of the evidence and the applicable law. We conclude that the trial court's decision is supported by competent, substantial evidence and that it correctly applies the law. Accordingly, we affirm the decision.

Theresa Marie Schindler was born on December 3, 1963, and lived with or near her parents in Pennsylvania until she married Michael Schiavo on November 10, 1984. Michael and Theresa moved to Florida in 1986. They were happily married and both were employed. They had no children.

On February 25, 1990, their lives changed. Theresa, age 27, suffered a cardiac arrest as a result of a potassium imbalance. Michael called 911, and Theresa was rushed to the hospital. She never regained consciousness.

Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma.¹ She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awareness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

Theresa has been blessed with loving parents and a loving husband. Many patients in this condition would have been abandoned by friends and family within the first year. Michael has continued to care for her and to visit her all these years. He has never divorced her. He has become a professional respiratory therapist and works in a nearby hospital. As a guardian, he has always attempted to provide optimum treatment for his wife. He has been a diligent watch guard of Theresa's care, never hesitating to annoy the nursing staff in order to assure that she receives the proper treatment.

Theresa's parents have continued to love her and visit her often. No one questions the sincerity of their prayers for the divine miracle that now is Theresa's only hope to regain any level of normal existence. No one questions that they have filed this appeal out of love for their daughter.

This lawsuit is affected by an earlier lawsuit. In the early 1990s, Michael Schiavo, as Theresa's guardian, filed a medical malpractice lawsuit. That case resulted in a sizable award of money for Theresa. This fund remains sufficient to care for Theresa for many years. If she were to die today, her husband would inherit the money under the laws of intestacy. If Michael eventually divorced Theresa in order to have a more normal family life, the fund remaining at the end of Theresa's life would presumably go to her parents.

Since the resolution of the malpractice lawsuit, both Michael and the Schindlers have become suspicious that the other party is assessing Theresa's wishes based upon their own monetary self-interest. The trial court discounted this concern, and we see no evidence in this record that either Michael or the Schindlers seek monetary gain from their actions. Michael and the Schindlers simply cannot agree on what decision Theresa would make today if she were able to assess her own condition and make her own decision.

There has been discussion among the parties that the money remaining when Theresa dies should be given to a suitable charity as a lasting memorial. If anything is undeniable in this case, it is that Theresa would never wish for this money to drive a wedge between the people she loves. We have no jurisdiction over the disposition of this money, but hopefully these parties will consider Theresa's desires and her memory when a decision about the money is ultimately required.

This is a case to authorize the termination of life-prolonging procedures under chapter 765, Florida Statutes (1997), and under the constitutional guidelines enunciated in In re Guardianship of Browning, 568 So.2d 4 (Fla.1990).² The Schindlers have raised three legal issues that warrant brief discussion.

First, the Schindlers maintain that the trial court was required to appoint a guardian ad litem for this proceeding because Michael stands to inherit under the laws of intestacy. When a living will or other advance directive does not exist, it stands to reason that the surrogate decision-maker will be a person who is close to the patient and thereby likely to inherit from the patient. See § 765.401, Fla.Stat. (2000). Thus, the fact that a surrogate decision-maker may ultimately inherit from the patient should not automatically compel the appointment of a guardian. On the other hand, there may be occasions when an inheritance could be a reason to question a surrogate's ability to make an objective decision.

In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the trial court's jurisdiction to allow the trial court to serve as the surrogate decision-maker. In this court's decision in In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d...