In re Guardianship of Schiavo, 2D02-5394.

• Decision Date: 06 June 2003
• Docket Number: No. 2D02-5394.,2D02-5394.
• Citation: 851 So.2d 182
• 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

851 So.2d 182

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. 2D02-5394.

District Court of Appeal of Florida, Second District.

June 6, 2003.

Rehearing Denied July 9, 2003.

Patricia Fields Anderson, St. Petersburg, for Appellants.

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

Jan G. Halisky, Clearwater, for Amicus Curiae Professionals for Excellence in Health Care, Inc.

Rita L. Marker, Steubenville, Ohio; and James S. Ganther, Tampa, for Amicus Curiae International Task Force on Euthanasia and Assisted Suicide.

Christopher A. Ferrara, Ramsey, New Jersey, for Amicus Curiae American Catholic Lawyers Association.

Max Lapertosa and Kenneth M. Walden, Chicago, Illinois; and George K. Rahdert of Rahdert, Steele, Bryan & Bole, P.A., St. Petersburg, for Amici Curiae Not Dead Yet, Adapt, American Association of People With Disabilities, Center for Self-Determination, Center on Human Policy at Syracuse University, The Reverend Rus Cooper-Dowda, Disability Rights Education and Defense Fund, Half the Planet Foundation, Hospice Patients' Alliance, Dr. James Hall, National Council on Independent Living, National Spinal Cord Injury Association, Self-Advocates Becoming Empowered, Tash, World Association of Persons With Disabilities, and World Institute on Disability. ALTENBERND, Chief Judge.

Robert and Mary Schindler appeal the guardianship court's order denying their motion for relief from a judgment that ordered their daughter's guardian to withdraw life-prolonging procedures. We have carefully reviewed all aspects of the record on appeal. We conclude that the guardianship court complied with the instructions provided by this court in its last opinion. The guardianship court did not abuse its discretion in denying the motion for relief from judgment. Its ruling is supported by competent, substantial evidence and accords with the law of this state. Accordingly, we affirm the order on appeal.¹

I.

This is the fourth time that this court has reviewed an order from the guardianship court in this controversy. Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176 (Fla. 2d DCA 2001) (Schiavo I); Schindler v. Schiavo (In re Guardianship of Schiavo), 792 So.2d 551 (Fla. 2d DCA 2001) (Schiavo II); Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So.2d 640 (Fla. 2d DCA 2001) (Schiavo III). This case has a long and difficult history, which we will not detail in this opinion. As we explained in our last opinion, Schiavo III:

In Schiavo I, we affirmed the trial court's decision ordering Mrs. Schiavo's guardian to withdraw life-prolonging procedures. Schiavo I, 780 So.2d 176 (Fla. 2d DCA), cert. denied, 789 So.2d 348 (Fla.2001) (table). In so doing, we affirmed the trial court's rulings that (1) Mrs. Schiavo's medical condition was the type of end-stage condition that permits the withdrawal of life-prolonging procedures, (2) she did not have a reasonable medical probability of recovering capacity so that she could make her own decision to maintain or withdraw life-prolonging procedures, (3) the trial court had the authority to make such a decision when a conflict within the family prevented a qualified person from effectively exercising the responsibilities of a proxy, and (4) clear and convincing evidence at the time of trial supported a determination that Mrs. Schiavo would have chosen in February 2000 to withdraw the life-prolonging procedures.

800 So.2d at 642 (footnotes omitted).

Schiavo III involved a motion filed pursuant to Florida Rule of Civil Procedure 1.540 seeking relief from the original judgment after it had been affirmed in Schiavo I. In Schiavo III, we held that the guardianship court must conduct an evidentiary hearing on the motion, limited to the fourth issue. We stated:

Of the four issues resolved in the original trial ..., we conclude that the motion establishes a colorable entitlement only as to the fourth issue. As to that issue—whether there was clear and convincing evidence to support the determination that Mrs. Schiavo would choose to withdraw the life-prolonging procedures—the motion for relief from judgment alleges evidence of a new treatment that could dramatically improve Mrs. Schiavo's condition and allow her to have cognitive function to the level of speech. In our last opinion we stated that the Schindlers had "presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and sound or to communicate or respond cognitively to those perceptions." Schiavo II, 792 So.2d at 560. Although we have expressed some lay skepticism about the new affidavits, the Schindlers now have presented some evidence, in the form of the affidavit of Dr. [Fred] Webber, of such a potential new treatment.

Schiavo III, 800 So.2d at 645.

On remand, we permitted the parents to present evidence to establish by a preponderance of the evidence that the judgment was no longer equitable. We specifically held:

To meet this burden, they must establish that new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex—significantly improving the quality of Mrs. Schiavo's life—so that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures.

Schiavo III, 800 So.2d at 645.

In order to minimize disputes between the parties, this court's last opinion also provided guidance to the guardianship court concerning the nature of the hearing to be held on remand. We required an additional set of medical examinations of Theresa Schiavo and the selection of no more than five physicians to provide expert testimony on the issue presented. We instructed that one of the five physicians must be a new, independent physician selected either by the agreement of the parties or, if they could not agree, by the appointment of the guardianship court. We indicated that this physician should be board certified in neurology or neurosurgery, with expertise if possible "in the treatment of brain damage and in the diagnosis and treatment of persistent vegetative state." 800 So.2d at 646.

On remand, this court anticipated but did not require that Dr. Webber, who had claimed in his affidavit that he might be able to restore Mrs. Schiavo's speech and some of her cognitive functioning, would testify for the parents and provide scientific support for his claim. However, Dr. Webber, who was so critical in this court's decision to remand the case, made no further appearance in these proceedings.

Instead, the parents provided testimony from Dr. William Maxfield, a board-certified physician in radiology and nuclear medicine, and Dr. William Hammesfahr, a board-certified neurologist. Michael Schiavo, Mrs. Schiavo's husband and guardian, selected Dr. Ronald Cranford and Dr. Melvin Greer, both board-certified neurologists, to testify. The fifth physician, selected by the guardianship court when the parties could not agree, was Dr. Peter Bambakidis, a board-certified neurologist practicing in the Department of Neurology at the Cleveland Clinic Foundation in Cleveland, Ohio. He is a clinical professor of neurology at Case Western Reserve University. His credentials fulfilled the requirements of our prior opinion.

Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.

On the issue that caused this court to reverse in our last decision, whether new treatment exists which offers such promise of increased cognitive function in Mrs. Schiavo's cerebral cortex that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures, the parents presented little testimony. Dr. William Hammesfahr claimed that vasodilation therapy and hyberbaric therapy "could help her improve." He could not testify that any "specific function" would improve. He did not claim that he could restore her cognitive functions. He admitted that vasodilation therapy and hyberbaric therapy were intended to increase blood and oxygen supply to damaged brain tissue to facilitate repair of such tissue. These therapies cannot replace dead tissue. Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

The evidentiary hearing held on remand actually focused on an issue that was not the issue we anticipated would be the primary issue on remand. The parents contended that Mrs. Schiavo was not in a persistent or permanent vegetative state. Both Dr. Maxfield and Dr. Hammesfahr opined that she was not in such a state. They based their opinions primarily upon their assessment of Mrs. Schiavo's actions or responses to a few brief stimuli, primarily involving physical and verbal contact with...