Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

court. that resulted in the removal of Theresa' s nutrition After a trial, at which both Michael and the and hydration tube. The underlying litigation, Schindlers presented evidence, the guardianship which has pitted Theresa' s husband, Michael @ 2006 Thomson/West. No Claim to Orig. U. S. Gov1. Works. 1 E849- A561- 497D- 9703- 0CFDA... 8/ 3/ 2006 https:// web2. westlaw .comlprint/printstream. aspx?utid=% 257b87F  Page 6 of 17 885 So. 2d 321 Page 6 885 So.2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) court issued an extensive written order authorizing or whether she would wish to permit a natural death the discontinuance of artificial life support. The process to take its course and for her family trial court found by clear and convincing evidence members and loved ones to be free to continue their that Theresa Schiavo was in a persistent vegetative lives. After due consideration, we conclude that state and that Theresa would elect to cease the trial judge had clear and convincing* 326 life- prolonging procedures if she were competent to evidence to answer this question as he did. make her own decision. This order was affirmed on see Schiavo I, 780 So. 2d at 177, direct appeal, Schiavo I, 780 So. 2d at 180. and we denied review. See In re Guardianship oj Schiavo, 789 So. 2d 348 ( Fla. 2001). Although the guardianship court' s final order authorizing the termmatlon of life-prolonging The severity of Theresa' s medical condition was procedures was affirmed on direct appeal, the explained by the Second District as follows: litigation continued because the Schindlers began The evidence is overwhelming that Theresa is in a an attack on the final order. The Schindlers filed a permanent or persistent vegetative state. It is motion for relief from judgment under Florida Rule important to understand that a persistent vegetative of Civil Procedure 1.540( b)( 2) and ( 3) in the state is not simply a coma. She is not asleep. She guardianship court, alleging newly discovered has cycles of apparent wakefulness and apparent evidence and intrinsic fraud. The Schindlers also sleep without any cognition or awareness. As she filed a separate complaint in the civil division of the breathes, she often makes moaning sounds. circuit court, challenging the final judgment of the Theresa has severe contractures of her hands, guardianship court. See In re Guardianship oj elbows, knees, and feet. Schiavo, 792 So. 2d 551, 555- 56 ( Fla. 2d DCA Over the span of this last decade" Theresa's, brain 2001) ( Schiavo II). has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid The trial court determined that the post-judgment 1996, the CAT scans of her brain showed a severely motion was untimely and the Schindlers appealed. abnormal structure. At this point, much of her The Second District agreed that the guardianship cerebral cortex is simply gone and has been court had appropriately denied the rule 1. 540( b )(2) replaced by cerebral spinal fluid. Medicine cannot and ( 3) motion as untimely. See Schiavo II, 792 cure this condition. Unless an of God, a true act So. 2d at 558. The Second District also reversed an miracle, were to recreate her brain, Theresa will injunction entered in the case pending before the always remain in an unconscious, reflexive state, civil division of the circuit court. See id. at 562. totally dependent upon others to feed her and care However, the Second District determined that the for her most private needs. She could remain in Schindlers, as " interested parties," had standing to this state for many years. file either a motion for relief from judgment under Florida Rule of Civil Procedure 1. 540( b)( 5) or an Schiavo l, 780 So. 2d at 177. In affirming the trial independent action in the guardianship court to court' s order" the Second District concluded by challenge the judgment on the ground that it is " no stating: In the final analysis, the difficult question longer equitable for the trial court to enforce its that faced the trial court was whether Theresa Marie earlier order." Schiavo II, 792 So. 2d at 560 Schindler Schiavo, not after a few weeks in a coma, quotation marks omitted). Nonetheless, the but after ten years in a persistent vegetative state Second District pointedly cautioned that has robbed her of most of her cerebrum and all that any proceeding to challenge a final order on but the most instinctive of neurological functions, this basis is extraordinary and should not be filed with no hope of a medical cure but with sufficient merely to delay an order with which an interested money and strength of body to live indefinitely, party disagrees or to retry an adversary proceeding. would choose to continue the constant nursing care The interested party must establish that new and the supporting tubes in hopes that a miracle circumstances make it no longer equitable to would somehow recreate her missing brain tissue, enforce the earlier order. In this case, if the @ 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 0CFD A... 8/ 3/ 2006 https:// web2. westlaw .com/print/printstream. aspx?utid=%257b87F I E849- A561- 497D- 9703-  Page 7 of 1 7 885 So. 2d 321 Page 7 885 So. 2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) Schindlers believe a valid basis for relief from the equitable and specifically held: order exists, they must plead and prove newly To meet this burden, they must establish that new discovered evidence of such a substantial nature treatment offers sufficient promise of increased that it proves either ( 1) that Mrs. Schiavo would not cognitive function in Mrs. Schiavo' s cerebral have made the decision to withdraw life- prolonging cortex- significantly improving the quality of Mrs. procedures fourteen months earlier when the final Schiavo' s life- so that she herself would elect to order was entered, or ( 2) that Mrs. Schiavo would undergo this treatment and would reverse the prior make a different decision at this time based on decision to withdraw life- prolonging procedures. developments subsequent to the earlier court order. Id. The Second District required an additional set of Id. at 554. medical examinations of Theresa and instructed that one of the physicians must be anew, independent On remand, the Schindlers filed a timely motion for physician selected either by the agreement of the relief from judgment pursuant to rule 1.540( b)( 5). parties or, if they could not agree, by the See In re Guardianship of Schiavo, 800 So. 2d 640, appointment of the guardianship court. See id. at 642 ( Fla. 2d DCA 2001) ( Schiavo III ). The trial 646. court summarily denied the motion but the Second District reversed and remanded to the guardianship After conducting a hearing for the purpose set forth court for the purpose of conducting a limited in the Second District' s decision, the guardianship evidentiary hearing: court denied the Schindlers' motion for relief from Of the four issues resolved in the original trial..., judgment. See In re Guardianship of Schiavo, 851 we conclude that the motion establishes a colorable So. 2d 182, 183 ( Fla. 2d DCA 2003) ( Schiavo IV). entitlement only as to the fourth issue. As to that In reviewing the trial court' s order, the Second issue- whether there was clear and convincing District explained that it was " not reviewing a final evidence support the determination that Mrs. to judgment in this appellate proceeding. The final Schiavo would choose to withdraw the judgment was entered several years ago and has life-prolonging procedures- the motion for relief already been affirmed by this court." Id. at 185- 86. from judgment alleges evidence of a new treatment However, the Second District carefully examined