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The Battle Over the Fate of a Comatose Patient

Aired May 7, 2001 - 12:30   ET



GEORGE FELOS, MICHAEL SCHIAVO'S ATTORNEY: Terri Schiavo didn't have a written living will. She didn't specify in writing what her wishes were, so we had to rely on oral statements. And when you have a case when family members disagree and you're relying on oral statements, you can end up with years and years of litigation, as we -- as we did here.


GRETA VAN SUSTEREN, CO-HOST: Terri Schiavo lies in a Florida hospice. A heart attack left her comatose 11 years ago. Her husband says she would not want to be kept alive by feeding tubes, but her parents say she responds to their actions.


ROBERT SCHINDLER, THERESA SCHIAVO'S FATHER: And what she'll do is, she'll have a smile on her face, and the smile grows to a laugh, like a grin from ear to ear. And then she'll start to cry. It's almost like she's begging for help.


VAN SUSTEREN: The fate of Terri Schiavo's life lies in the hands of the Florida courts. Today on BURDEN OF PROOF, her husband, Michael Schiavo, speaks out.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

Thirty-seven-year-old Terri Schiavo has been in a coma for 11 years, caused by a heart attack. She's in a Florida hospice as the legal battle surrounding the removal of her feeding tube rages around her. Terri's husband, Michael Schiavo, says it's time to let her go. He says Terri told him in spontaneous moments that she would not want to be kept alive artificially. At the same time, Terri's parents are trying desperately to keep their daughter alive.

The case has been an emotional roller-coaster as the family awaits a final resolution from the courts. Joining us today to discuss this, from Tampa, Michael Schiavo, the husband of Terri Schiavo, and George Felos, attorney for Michael Schiavo. Also joining us from Tampa, Dr. James Barnhill, the neurologist who testified on behalf of Michael in court. Here in Washington, Brian Jones (ph), Rachel Nicole (ph), Jeff Gay (ph) a, and in the back row, Russell Roy Oliver (ph) and Alan Nixon (ph).

Michael, first to you. Why do you want to have the feeding tube disconnected or terminated?

MICHAEL SCHIAVO, TERRI SCHIAVO'S HUSBAND: Well, Greta, before we start that, I'd like to clear up one fact. You folks are saying that Terri is in a coma. She is not in a coma. She is in a chronic persistent vegetative state, and Dr. Barnhill will explain that to you.

And to answer your question, it's Terri's wishes that she did not want to be like this.

VAN SUSTEREN: All right, let me -- let me back up for a second to the chronic vegetative state, persistent vegetative state. When was the last time you saw your wife?

SCHIAVO: I saw my wife Wednesday.

VAN SUSTEREN: And before Wednesday, when was the last time?

SCHIAVO: Over the weekend.

VAN SUSTEREN: How often during the course of the past 11 days would you say that you visited your wife?

SCHIAVO: I visit my wife, during these days, two times a week.

VAN SUSTEREN: Has she been at all response to you, Michael?

SCHIAVO: She is not response to me at all.

VAN SUSTEREN: Has there been any indication that -- I mean, does she react to pain, for instance, if you touch her, or does she show any sort of reaction whatsoever?

SCHIAVO: She has a startle reflex, which Dr. Barnhill can go more into for you.

VAN SUSTEREN: What do you make of the fact, Michael, that her parents seem to think that she has a different reaction, that she laughs, that she frowns? What do you make of that?

SCHIAVO: I think they're only seeing what they want to see.


SCHIAVO: Terri has made the same noises and the same moans for 11 years now, and she does it whether somebody's in the room or somebody's not in the room. VAN SUSTEREN: What -- where is it, though -- there's obviously this tension between you and the parents of your wife. I mean, why is it that you and the parents seem to be at such odds on this important decision?

SCHIAVO: I believe it's because Mr. Schindler is very angry that he did not receive any money from the malpractice case. He did testify to that in court, that he was angry about that. And they chose to take it to the courts.

VAN SUSTEREN: So in essence, to be quite bold about it, are you saying that they're money-hungry, it's a question of greed?

SCHIAVO: I believe they are money-hungry, yes. It's -- you know, 13 judges have heard this case, all the way to the U.S. Supreme Court, and they have found that money is not a motive to me. I have offered this money to charity five times, and the Schindlers refuse to accept that offer.

VAN SUSTEREN: All right, in 1992, I believe, there was a malpractice suit that was brought on -- as a result of the fact that your wife had had a heart attack and then suffered an injury as a consequence. How much was the judgment?

SCHIAVO: I believe it was $1.6 million, but by the time they figured that -- you know, the percentages that came -- Terri got a little over $700,000.

VAN SUSTEREN: How much is left today?

SCHIAVO: There is -- I can't comment on -- I don't take care of that part. The bank is in charge of that. But I can guarantee you it's extremely low.

VAN SUSTEREN: Well, is it as much as half a million dollars? Is that...

SCHIAVO: Lower than -- lower.

VAN SUSTEREN: In the -- let me ask you -- in the event, for instance, that if you divorced your wife and let the parents make the decision as to whether the feeding tube should be disconnected or not, would the money go to the parents in the event of her death?

SCHIAVO: Yes, it would. Yes, it would.

VAN SUSTEREN: And what...

SCHIAVO: And I'd like to comment on that, too. I mean, they -- you know, their question is, is why don't I divorce Terri. Number one, Terri's my -- my wife. Number two, I wouldn't -- I wouldn't leave Terri in the care of the Schindlers because they wouldn't carry out her wishes. And also, number three, that -- Mr. Schindler testified in this trial that if anything became of Terri, that he would actually remove her arms and legs just to keep her alive. He said he would also put her on a ventilator. He would also perform open-heart surgery just to keep Terri alive because it brings joy to their family. So I really wouldn't want to leave Terri in the care of that type of person.

VAN SUSTEREN: OK, you know Cindy Brashers, do you not?

SCHIAVO: I knew Cindy Brasher nine years ago.

VAN SUSTEREN: Yeah. Was she an ex-girlfriend of yours? Is that a proper characterization?

SCHIAVO: We -- we had a relationship for about six months, yes.

VAN SUSTEREN: And I assume that you're aware of the fact that she claims that your statement that your wife would not want to be on artificial life support or a feeding tube, that that is one that -- is one that you've made up.

FELOS: Well, you know, Greta, you know, I wanted to -- I wanted to address that legal point. The witness -- first of all, the witness has not given any statement. No affidavit was attached to the Schindlers' latest court complaint. And she's not alleged to have said that.

VAN SUSTEREN: All right, well, let me back up. Let me go to you, George, on this whole story. Explain to us the legal posture of the case.

FELOS: This case initially went to trial. The trial judge said that Michael was permitted to discontinue artificial life support. That decision was affirmed by the court of appeals in Florida. The Florida supreme court and United States Supreme Court both declined to intervene in the case. Based upon those decisions, Terri's artificial life support was discontinued. And three days later, the Schindlers filed a related action for damages in our local court, claiming that my client lied at trial regarding his wife's wishes. And...

VAN SUSTEREN: And their -- and their witness, of course -- at least, what they're putting out is their witness is Cindy Brasher, the ex -- at least is their characterization -- ex-girlfriend of Michael, is that right?

FELOS: Yes. And they say that Brasher's told them that Michael once said to her, "I don't know what Terri would want. We were both young at the time. I don't know what her wishes were."

But it's very interesting. They attach no statement of the witness, and the day after they filed this complaint, the witness reported to the papers that she said, "No, we were never talking about artificial life support. Michael and I were talking about whether Terri would best be cared for in a nursing home or at home. And in that contest, he said -- he said, `I don't know what her wishes would be.'"

And it's -- and it's our contention that those remarks were deliberately taken out of -- out of context before the court in an effort to get an injunction. And we're hoping and confident that the appellate court will enforce its decision and overturn that injunction promptly.

VAN SUSTEREN: All right, we're going to take a real quick break. When we come back, we'll talk to a doctor who has examined Terri.

Stay with us.


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VAN SUSTEREN: Terri Schiavo's parents took their case all the way to the Supreme Court. The highest court in the land did not consider the case, so Michael Schiavo had approval to turn off Terri's feeding tube. But a ruling by a Florida court allowed the tube to be turned back on, continuing this endless family battle.

Dr. Barnhill, let me go to you. Have you examined Terri?


VAN SUSTEREN: How many occasions?

BARNHILL: At least twice. Maybe three. I'm not sure.

VAN SUSTEREN: And approximately when was the most recent?

BARNHILL: About a little over a year ago.

VAN SUSTEREN: What was her condition when you interviewed -- or when you examined her a year ago?

BARNHILL: Well, she was in a nursing home, appeared awake, had reflex activity in her -- we call it in the brain stem. She was quadriplegic, unable to move her limbs, which are contractured, incontinent, had a feeding tube in place and had had one for, I guess, 10 yeas. On a variety of tests that I did, I could not evoke any evidence of self-awareness or ability to communicate or follow any kind of commands or questions. Essentially, she met the criteria for what, at 10 years, would be called a permanent vegetative state.

VAN SUSTEREN: Now, you say there's no evidence of self- awareness, yet you say she appeared awake. Can you explain that to me?

BARNHILL: Well, virtually anyone who survives a brain injury that initially produces coma will enter a phase at some point thereafter where they have sleep-wake cycles. At points they look awake, and at other points they look asleep. That's a typical feature of patients in chronic vegetative states. So that's -- the appearance of wakefulness without consciousness appears to be a lower brain stem function.

VAN SUSTEREN: Now, can she -- and to the best of your medical knowledge, can she feel pain?

BARNHILL: Not feel pain in the sense that she has consciousness of it, but react to pain in the sense that there are reflexes that will be provoked in response to pain. Similarly, if you step on a nail, you will move your foot before you have awareness that you have pain.

VAN SUSTEREN: If you remove this feeding tube, in essence, she will starve to death. Is that a kind of pain that she could feel in her state?

BARNHILL: Actually, she won't starve to death. What will happen is there will be initially dehydration. There will be chemical changes in the electrolytes -- the sodium, the potassium. And generally, death will ensue from complications related to the dehydration and the chemical imbalances before someone starves to death.

VAN SUSTEREN: OK, dehydration, I assume, is some level of pain to someone who is -- I mean, unless you're in a particular state. Is she likely to feel the discomfort from that?

BARNHILL: No. As people dehydrate -- and unfortunately, I've seen this many times -- they just kind of go to sleep. They become less conscious -- or since she's not conscious, that's maybe not the right -- they're less alert and gradually become unresponsive.

VAN SUSTEREN: If the feeding tube were discontinued again right now, when, to our best -- what would you -- what would be your best estimate as to when Terri will die?

BARNHILL: Hard to say, probably, I would guess, maybe two weeks.

VAN SUSTEREN: What do you make of the fact that the parents think that she responds to them, that she smiles, she laughs and she does those type of things?

BARNHILL: Well, I think Michael's right. I think that people tend to see what they want to see. They see what they believe. There are complex reflex behaviors that she manifests, such as smiling, laughing, head turning, which I think they have trouble believing that that can occur simply as a reflex without awareness or consciousness.

VAN SUSTEREN: Now, we use in the law the standard "to a medical certainty." Let me -- what is your level of certainty? Is it 100 percent that she's in this persistent vegetative state or -- I mean, can you tell us 100 percent she'll never recover?

BARNHILL: I can't say anything 100 percent, other than that everybody, virtually, will die at some point. But I'm probably 99 percent sure in this case, or greater than 99.

VAN SUSTEREN: Michael...

FELOS: Greta, I...


FELOS: I just wanted to add -- you know, this is just not the subjective opinion of one doctor, Dr. Barnhill. There have been five or six neurologists who have concluded the same thing. And also, the objective CAT scans show that Theresa's brain, most of it has died, and that her cranium is essentially filled with cerebrospinal fluid. I mean, the CAT scans don't lie. Unfortunately, this poor girl is not going to recover.

VAN SUSTEREN: Michael, is there any way that you can sit down -- I realize that a lot has gone on between you and the parents of your wife. Is there any way you can sort of sit down and try to work this out between you?

SCHIAVO: No, there's not.

VAN SUSTEREN: Why do you think that?

SCHIAVO: I have -- I have tried before. A letter has been sent to them to discuss this many years ago, but they turned that down. It's just become a very -- I'm trying to carry out what my wife would want. They have -- they have become very mean.

VAN SUSTEREN: Do you understand their grief, though, on this, that it's not just yours, I mean, that -- that they, too -- I mean, this is their daughter? Do you -- do you have some sort of appreciation for what they're going through?

SCHIAVO: I can appreciate it, but I get angry. Let's take, for instance, her brother and sister. They -- they -- they're doing a lot of talking now, but where were they for 10 years? They never, ever came to visit Terri in 10 years. And now, all of a sudden, they want to be a spokesman, and they want to start slinging mud. I don't -- and the comments that Mr. Schindler made in trial that, you know, he was angry that he didn't get any of the malpractice money -- this is all money to them. It's nothing to do with their daughter.

VAN SUSTEREN: We're going to take a quick break. When we return: Who should make decisions about an incapacitated family member? The Florida legislature is weighing in.

Don't go away.


Ronnie Biggs, a 71-year-old fugitive, returned to Britain this morning after almost 40 years of being on the run for what crime?

The 1963 "great train robbery." Biggs has been weakened by a stroke and was expected to be taken to a prison hospital. (END Q&A)



Let me go back to you, Michael. Last week, my partner, Roger Cossack, had on the air Terri's brother, your brother-in-law, Bobby, and he said that when the feeding tube was first disconnected to his sister that he attempted to go back to the hospice and have his sister fed through the mouth and that you interfered with it and didn't want that to go forward. Is that true?

SCHIAVO: Let me explain the story. Last week, Bobby and his sister, Suzanne, walked into the hospice house and immediately went into the nurse manager's office. There was a social worker there, and there was another person also there from the head office. They came to me later and told me that Bobby and Suzanne were insisting on feeding her sister by mouth. The nursing home, hospice, informed them that they cannot override the doctor's order that Terri have nothing to eat. Well, they sat there and insisted that they call the doctor or they call the head of hospice. And they sat there for over an hour and argued with these people.

Next I heard that Suzanne came down to see my wife in her room and started harassing the nurse that was taking care of her and actually harassed her so bad that she made the nurse have to leave the floor in tears.

Now, Suzanne and Bobby have been known to interfere like this, especially with the last nursing home that she was in. They interfered so bad by bringing people and the press to the nursing home and disrupting the other residents there that...

VAN SUSTEREN: Let me -- let me ask you a question about all this, Michael. I mean, it seems...

SCHIAVO: Well, let me finish this.


SCHIAVO: I mean, they -- the nursing home called me and told me that they needed to evict Terri.

VAN SUSTEREN: Here's the issue. I mean, you have the parents saying you're money-hungry and greedy, it's the malpractice. You say it's the parents who are money-hungry and interested in this malpractice award. How does one decide who's -- who's telling the truth in this?

FELOS: Well, you know, Greta, we've had a trial judge with a seven-day trial, with witnesses to judge credibility, make a decision.

VAN SUSTEREN: I know, but let me ask -- let me ask Michael. Michael, how do you -- what do you recommend, in terms of someone sorting through this? I mean, how do we measure this? SCHIAVO: As George says, we had a trial. There have been 13 judges that basically made no mention of this, except for the appellate court, and they came back and said that the money was not a motive, it was all about what Terri's wishes were. The Schindlers are basically the only ones that are -- that are harping on this money deal. I have -- I have offered to give that money to charity and leave it go.

They came back to me -- they're crying they don't have any money, and they have these attorneys that are -- that are volunteering for them that come into this case a year and a half, a year and three months later. But they're offering me $700,000 to walk away from it. Where are they getting the money?


SCHIAVO: If they don't have any money, why don't they pay their lawyers? And they're -- they have a -- this little fund set up that they're collecting money from the -- the public. Where's that money going?

VAN SUSTEREN: George, in the few seconds we have left, tell me the -- what's the next step in the court battle?

FELOS: We've appealed the injunctive order which required my client to resume artificial feeding. We filed a motion with the appellate court in the main case to enforce the mandate. These matters are going to be on the plate of the district court of appeals. They've indicated that they will expeditiously take a look at them. And we're hoping within the next few weeks that we get again an order of the appellate court affirming Terri's right not to be force-fed, to have her unwanted medical treatment discontinued.

VAN SUSTEREN: It seems to me, George, that the testimony of Cindy Brasher's going to be important one way or the other. Is she going to be a witness in some proceeding in the near future?

FELOS: Her statement -- her deposition's going to be taken -- taken this week. And we have all indications that she's going to state what she's proclaimed to the media, that her statements were taken out of context and they're being twisted by the other side in an attempt to obtain an order.

And I just wanted to mention another point, Greta. You asked about feeding Terri by mouth. We had a -- we had a court hearing on that matter, and the court found that Terri does not have the ability to take in nutrition orally. If she did...

VAN SUSTEREN: And you know what? I'm sorry, but I'm going to have to cut you off there because that's unfortunately all the time we have.

Thanks to our guests, and thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.



4:30pm ET, 4/16

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