Friday, February 01, 2008

I Am Asked About the Lauren Richardson Case

James asks:

Wesley, What's your take on the Lauren Richardson case in Delaware? Can you get involved to protect the life of this young woman?
Lauren Richardson, for those who may not know, is a young woman diagnosed to be persistently unconscious whose parents are fighting in court over who should be named her guardian. How the court decides that question is literally a matter of life and death. Her mother wants to pull her feeding tube, her father does not. Here's the tragic story.

James. I have received several inquiries such as yours. It is a reasonable question that breaks my heart and deserves a bluntly honest answer: I am at a loss to know what I can do. I haven't been called to help and it is not my way to interpose myself into these gut wrenching situations. A blog entry isn't going to matter, nor sending ten articles to the New York Times--which wouldn't be published anyway. Dehydrating the cognitively devastated is a ubiquitous practice in US hospitals and nursing homes. It isn't even controversial unless, as in this case and a few others such as Terri Schiavo and Robert Wendland, there is a family division and someone kicks up a fuss. Usually, families go along and no one is the wiser.

Let me repeat this sickening fact: The dehydration of people who are elderly stroke or dementia patients, people of all ages with brain injuries, and others with profound cognitive incapacities who require feeding tubes goes on ALL THE TIME in ALL FIFTY STATES to people who are both CONSCIOUS AND UNCONSCIOUS. And society generally applauds.

Like I said: What can I do? But I appreciate very much the love in the hearts of everyone who contacted me about Lauren and my deepest respect to all who care so profoundly about the life of a tragically injured young woman whom they have never met.

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20 Comments:

At February 01, 2008 , Blogger James said...

Wesley,

The father, Randy Richardson was just on Hannity and Colmes. Obviously, he seeking the media's help in this tragic situation.

You are a lawyer. Perhaps you can get with Rita Marker and her organization and with the father's lawyers to see if you get some type legal standing in the case such as an Amicus Brief.

You might also know some pro-life doctors that might be able to help.

Of course, the first thing you would have to do is contact the family to see if they would willing to consider your help.

I agree simply barging into the situation would not be wise.

You contact many people, but ultimately it must the family who solicitates your help.

 
At February 01, 2008 , Blogger Tony Jones said...

I don't think society "applauds" dehydration. Most people feel that such matters are intensely personal, and those closest to them have are most likely to know what their views are.

Michael Schiavo spent more time with her during her last years (before she became brain dead) than her parents did, and as such would have a better idea of her views.

If he really wanted to kill her, why wait over half a decade to remove the feeding tube?

 
At February 01, 2008 , Blogger Wesley J. Smith said...

Tony: That's not how it was. 1. Malpractice case settles 1992. About $750,000 K for Terri, about $250 K for Michael. Money in bank early 1993. Michael refuses any rehab for Terri in Feb 1993 causing huge fight and breach with Schiavos. (M says it was because Mr. S wanted a piece of the action, but the subsequent actions of the parties suppot Mr. S and not M. Also, I know Mr. S. He is not venal and he is devastated by the death of his daughter. STILL! But I digress.) June 1993, Terri gets serious infection. M refuses antibiotics for her. Schiavos sue to get guardianship so treatment will be given. Case settles when Michael agrees to provide continuing treatment. Schaivos' big mistake.

Later, he meets a woman, falls in love, and they set up house. Have one kid, and later a second kid. By now dehydration is better known. There is still $700 K in Terri's account. He proceeds to seek permission from court to withdraw feeding tube. Schiavos sue for guardianship. The rest is history.

 
At February 02, 2008 , Blogger Tony Jones said...

So did Michael Schiavo train to be a nurse and respiratory therapist? Just to make it look like he cared?

 
At February 02, 2008 , Blogger Lydia McGrew said...

Wesley, I appreciate your just making known that you consider this to be another of those sickening cases where the wrong thing is going to be done.

It is my opinion that it's a major problem for us to say we must dehydrate people to death if they "said they wouldn't want to live like that." If a young woman says it would be "gross" to be elderly, we don't kill her when she gets elderly. Yet probably many young people do feel that way. But a brain-damaged case is considered to be over the line, and especially if there is a feeding tube, about which so many people have a phobia. The idea that you should just never dehydrate someone to death seems far too radical for most people.

 
At February 02, 2008 , Blogger James said...

The idea of Michael getting a job in medical community was probably an idea driven by his lawyers. Obviously, if the jury and court saw that Michael wanted and was becoming nursing that would help their case.

By the time Michael recieved his nurses license, he was petitioning the court to have Terri's feeding tube removed.

So much for Michael's sworn testiment about becoming nurse to care for Terri for the rest of his life.

 
At February 02, 2008 , Blogger Tony Jones said...

We wouldn't need to dehydrate them (or ourselves) to death if we decided to afford the same end-of-life rights to human beings that we currently afford to animals. No pain-relief experimentation on cats or dogs. Lucky them. Maybe if I dress up in a giant dog costume...

 
At February 02, 2008 , Blogger Wesley J. Smith said...

A reader writes: "I am writing regarding your blog entry about Lauren. You said that pulling a feeding tube happens all the time. That is precisely why we must do something. And that something is changing the law. It may be legal in all 50 states. But I hope that soon, it will only be 49. I suspect that in the next few days or weeks, bills will be introduced in the Delaware legislature, maybe even across the country. I am going to do my best to stop the practice of pulling feeding tubes in Delaware by getting one of those bills passed.

I don't know where you live, but at least you can link to Lauren's site, www.lifeforlauren.org."

Good luck with that.

 
At February 02, 2008 , Blogger Lydia McGrew said...

Unfortunately, the opinion in Cruzan puts a terrible limit on what states may do to stop this practice without the resultant laws' being (so-called) "unconstitutional."

My opinion is that the best approach is for a state to define "clear and convincing evidence" in such a way that it is very hard to meet the standard. A really rampagingly pro-life state legislator could try to write a law according to which only _written_ evidence that showed strongly informed consent could count. The "informed consent" provision might include requirements that the person signing such a living will or statement sign that he understands that death by dehydration is sometimes painful, that feeding tubes are themselves not painful, that they are not "life support machines" and are not the same thing as a ventilator, that they are merely a means of delivering nutrition and hydration to people who for one reason or another can't or can't easily get enough nutrition and hydration by mouth, and things of that sort. If you made the requirements stiff enough, the sorts of statements (like "I wouldn't want to live hooked up to machines") attributed to Lauren would not count as clear and convincing evidence of a desire to be dehydrated to death even if the mother is telling the unvarnished truth--which she may be--about what Lauren said. They would not count under my proposal both because they were oral rather than written and because they did not demonstrate informed consent.

Also, state legislatures should order that if a feeding tube is withdrawn an attempt be made to feed by mouth.

One more possible idea: Might it be a good idea for legislation to require that the "clear and convincing" determination be made by the unanimous verdict of a jury, rather than a judge?

 
At February 02, 2008 , Blogger Lydia McGrew said...

Does anyone know what Delaware law presently is on the clear and convincing standard? Would it be even an option for the state supreme court to rule that only written evidence counts, or is it statutorily provided that oral statements must be allowed to count?

 
At February 02, 2008 , Blogger Wesley J. Smith said...

Actually, Lydia, I don’t think that is true. Cruzan held that it is acceptable for a state to have a clear and convincing evidence standard, rather than the acceptable preponderance of the evidence standard. C and C is the highest standard of evidence for civil law. That is not to say a state couldn’t have a lesser standard. Alas, Cruzan also held that tube supplied food and fluids is medical treatment. And that isn’t going to change although I think we may be able to put it into a category of its own and distinguish it from other forms of care in terms of withholding or withdrawal. Indeed, WI and a few other states do have that distinction. Florida too, which requires PVS. Had Terri been found to me minimally conscious, my understanding is that she could not have been dehydrated.

 
At February 02, 2008 , Blogger James said...

Wesely,

Perhaps there is a sympathetic senator or representive in Delaware that can start crafting leglislation.

If the trial court ruled there was Clear and Convincing Evidence, then it is a good guess that it will be affirmed on appeal.

Of course, this all depends on how throughly the appeal court considers the evidence.

Some states like New York (In cases that I have seen), really do a heavy heavy analysis on the Clear and Convincing evidence. They take everything into account.

I would say Florida however has lower standard on its Clear and Convincing evidence based on the evidence presented in the Schiavo case. Greer and appeals court really didn't do throughly analysis on the Clear and Convincing evidence.

Since the Schiavo case was being controlled by the Browning Case, I think there was probably some judicial ego and bias at work in the Appeals court.

The Appeals boasted that they created their own mechanism of law to handle the Browning Case and applied that mechanism to the Schiavo case.

I am sure the appeals court was probably angred on being told by lawyers that their own crafted mechanism of law was flawed when applied to the Schiavo case.

After all, the appeals court boasted that own crafted mechanism of law was upheld by the Florida Supreme Court.

 
At February 02, 2008 , Blogger Lydia McGrew said...

Wesley, I think what you mean is that you don't think it's true that Cruzan puts a terrible limit on what states can do. But my understanding is that, given Cruzan, states _must_ allow refusal of food and fluids for a non-conscious person on the basis of that person's previously expressed wishes, though the state is allowed to uphold a C and C evidence standard as to that person's wishes.

Now, I call that a "terrible limit" just because it means a state can't have a law that says, "Even if you said you would want to be dehydrated to death, it's still going to be illegal to dehydrate you to death" (just like even if you said you would want to be shot in the head, it's still going to be illegal to shoot you in the head). They can't just say, "No dehydrating people to death."

But as I say, and as I think you agree, they can make or try to make the C & C standard quite high.

Does anyone know where the law and precedents are at in Delaware on that?

 
At February 02, 2008 , Blogger Wesley J. Smith said...

No, Lydia. That isn't what Cruzan was about. It was stating that the MO scheme was constitutional, not that a state HAD to honor dehydration requests.

 
At February 09, 2008 , Blogger Kim said...

The verdict in the Lauren Richardson hearing was given because Master Chancery Glasscock III considered the evidence from Edith Tower's side as "clear and convincing" That evidence being that Edith Towers and her brother heard Lauren say she would not want to live "like that."

If these statements were made, which this most certainly is in question, how many people have made statements like that? I know I have. But until this happened I never thought about what "like that" meant. Where is the line for you? When would it be okay for them to let you go and when would you want your family to decide that there is hope? Do you trust that your family would know the difference? Is there someone that you would trust to decide between the two? If you made the statement when you were on drugs do you want people to decide you should not live based on that? If you made it 5 years ago, before you were sober and before you had a child, would you want people to remove your feeding tube. When you said 'like that," did you mean on a bunch of machines? Were you aware that in some states having a feeding tube is considered life support? I personally did not. Maybe a lot of people do. Surely people with families that would need to be taken care of in the event of a tragic accident do, but people in their teens and twenties? Single people with no one to take care of when they are gone? Even people WITH families are possibly out of the loop. If a doctor said that there was a chance, a good chance, that you would be able to feed yourself again with therapy, would you want your feeding tube removed? If a judge did not let that doctor testify, would you be angry with a verdict that was going to allow someone to remove your feeding tube? What if a judge said before the hearing even started that he already had an opinion on the case? If you could swallow, but people would not be allowed to give you food or water after the tube is removed, how would you feel about that? It would be illegal for people to give you food or water even though you could swallow. People are born with disabilities that require feeding tubes or other people to feed them every single day... Should these people be starved? What makes it okay for a person born "like that," to live, but not a person who becomes disabled later in life? Neither of them can speak for themselves. But someone can just claim that a person told them once during a commercial break "I would not want to live with artificial nutrition and hydration." The possibilites are endless for what could possibly change your mind... Of course for some it is easier to think that the right thing is being done for Lauren, instead of facing the fact that our society is so uncomfortable with the disabled that they would just as soon have someone deprived of food or water then deal with it. Let's try an experiment, go a few days without food and water and see how you feel. It took Terri Schiavo 13 days to die a slow and very painful death. 13 days. What does not make sense to me is that in the United States of America we cannot help a person with a terminal illness who is in a tremendous amount of pain kill themselves. A person who CAN speak for themselves. We cannot give them drugs that would make it pain free and fast. But we can remove a feeding tube from someone who cannot speak for themselves, who is not terminally ill, who is not in pain, and watch them die a horrific death. The only reason why this has not been a bigger issue is because in a large portion of cases like this doctors convince loved ones to "pull the plug," without explaining all of the facts.

The courts are saying that if the tube is removed it will allow Lauren to die a "natural death" There is nothing natural about it. She is not dying. She will be starved to death. This is not a pro-life issue, it is a disabilty issue.

 
At May 08, 2008 , Blogger Cindy Sue Causey said...

Been drastically out of the advocacy loop so just now catching Wind of this.. Hard to tell where it stands from the website.. Waiting to see if I hear back.. Just coming in to offer a {{ cyber hug }} of unity to everyone spending all their days fighting the [status quo] so others may rightfully Live..

Peace and best wishes..

 
At July 04, 2008 , Blogger Joe said...

How about a legal standard that disqualifies those suffering from a certain type of religious insanity -- you know, the kind that refuses to acknowledge that rational people may choose death over living in a vegatative state, even if they "only" need a feeding tube -- from voting on these issues. And I'm including, particularly, legislators who might mouth off ala the congress' shameful display in the Schiavo matter and the above-mentioned kooks in Delaware. That said, I'm all for living wills and directives to physicians, as long as they standards are fair and promote the goal of giving effect to the wishes of the patient. Some of the proposals above seem designed to frustrate those wishes in favor of the "pro-life" agenda. And I put "pro-life" in quotes because what's happening to the poor remnant of that girl in Delaware, as with Schiavo, ain't living. There's an irony here; the laws proposed above, while nominally couched in terms of "just making damn sure" that the person's wishes are to have the tube removed, are so much overkill that one can only conclude that the same sort of hypocrisy and deception is at work as when death penalty abolitionists challenge as method of execution, hoping to deal the death penalty the death of a thousand cuts. How hard is it to get your arms around the fact thsat every mans life is his own, not yours to play God with?

 
At July 05, 2008 , Blogger Wesley J. Smith said...

Joe: How about paying attention to what this blog advocates. The issue with Lauren and other such cases is that she HADN'T made her wishes expressly clear.

So how about if someone signs an advance directive refusing tube sustenance, we follow it. But if they haven't, we go to the default position of maintaining care. In that way, we don't make someone die slowly because we don't think their lives are worth sustaining or because we wouldn't want to live like that. And if anything is "playing God," it is taking a life based on our values, not maintaining care based on society's.

Based on you comments, you want YOUR ideas about a life worth living to prevail. The "kook" legislature of Delaware was nearly unanimous, and I doubt highly that even a majority are "pro life." The US Senate in Schiavo was unanymous for Terri's Law, including such notorious pro lifers as Hillary Clinton and Barack Obama. It was about 40% of the Democratic Caucus in the House.

Facts are stubborn thing. Thanks for stopping by.

 
At July 22, 2008 , Blogger L said...

Wesley J. Smith: how about reading a poster's comments before commenting on whether he read? Joe anticipated and addressed the point about whether wishes were made "perfectly clear."

>>So how about if someone signs an advance directive refusing tube sustenance, we follow it. But if they haven't, we go to the default position of maintaining care<<

Anyone who has any serious knowledge, experience, understanding, and competence in bioethics would realize that
(a) serious (or end-of-life or advance-directive-directed or whatever) care can be a very tricky topic, with many people failing to understand the nuances of what types of decisions could be required (e.g., what is "life-support" versus "care" versus ...), and
(b) there are fifty states, and each has its own take on the topic. It is ridiculous to expect every American who climbs onto a plane to anticipate any state over which he might fly or get diverted and then complete the paperwork for that state in advance, just in case something happens.

That's insane--even more insane than the "overkill" about which Joe complains above! A more rational approach for states is the one where the person's wishes are decided as best we can in court.

Funny that this same judicial system that directs person's lives and takes away their freedoms and rights every day supposedly can't be used to protect peoples' freedoms.

And I wonder whether your running to cheer on the kooks in Dover based on their vote is honest naivete, or is disingenuousness. Pro-life has nothing to do with this...it's a feel-good resolution during closeout that they know will have no impact on the governor's remaining days in office, similar to the "courage" shown on eminent domain that they knew wouldn't get through...once put to the test, it's funny how they weren't able to gather up their votes, eh?

No, this is about politicians being politicians, and control freaks being control freaks, trying to pretend that "clear and convincing" is a weak standard, just so they can subvert a person's own wishes.

>>>Facts are stubborn thing.<<<

Yes, they is.
Now that you've noticed, maybe you should incorporate them into your opinion..?

 
At July 22, 2008 , Blogger Wesley J. Smith said...

L:

Your approach would let the court decide--worse yet, a judge acting under the influence of bioethics so-called "experts"--allows casual conversations to literally determine life and death, and moreover, become a pretext for what could become the real agenda: "quality of life" ethical judgments to put others out of our misery. If someone wants to be dehydrated to death based on cognitive incapacity, their duty to society, family, and themselves is to make that desire very clear. Otherwise, medical judgments about patient care should prevail with regard to sustenance, not "quality of life" or "I wouldn't want to live like that" kind of thinking that too often impacts such court cases.

As to Dover, which has nothing to do with anything we dicuss here: The DI opposed the school board's policy and even filed an amicus brief against it in court.

But why let facts get in the way of a wild rant?

 

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