October 23, 2003

PINELLAS PARK, Fla. -- A state protection agency for disabled persons on Wednesday was planning to launch an investigation into alleged spousal abuse against Terri Schiavo, the severely brain-damaged woman whose feeding tube was reinserted this week after intervention by the Florida Legislature and Gov. Jeb Bush.

The investigation by the Advocacy Center for Persons with Disabilities, an agency mandated in states and funded by Congress, could play a decisive role in a revived legal battle over who should be the guardian of the 39-year-old Schiavo--her husband or her parents.

Terri Schiavo was moved Wednesday for the second time in two days--this time back to a Pinellas Park hospice where she was receiving nourishment again through a feeding tube. Later, Robert Schindler, her father, said he, his wife and son visited Schiavo for about 45 minutes.

The family was annoyed, Schindler said, that Schiavo had been moved from the hospital in nearby Clearwater where she had been taken Tuesday.

Schindler said he was happy to see his daughter, but "she looked to me like a person who has the flu-- [someone who would say] don't bother me." He called his daughter "a really tired girl" and said he was struck by redness in her eyes.

Her parents also had been upset by the earlier decision of Michael Schiavo, Terri Schiavo's husband and guardian, to bar them from visiting her in the hospital in Clearwater.

"Nothing's different. It's been that way for 10 years," Schindler said of the battle between his family and Michael Schiavo over whether Terri Schiavo should be kept alive with a feeding tube or allowed to die. He made his comments outside the hospice, where Terri Schiavo had spent a week after a court approved removal of her feeding tube.

Even though lawmakers and Bush passed a law Tuesday authorizing the reinsertion of the feeding tube, her husband has authority, as guardian, to determine who is allowed to visit her.

Family alleges abuse

The Schindler family has accused Michael Schiavo of abuse and neglect as guardian, and the state protection agency's independent investigation could play a major role in removal of the husband as guardian--as well as shed light on how he managed funds during the guardianship.

Terri Schiavo's husband and her parents have been estranged for a decade while wrangling over her fate; Michael Schiavo said his wife told him she didn't want extended life support, but her parents have disagreed and have sought to keep her connected to a tube.

The law signed Tuesday by Bush requires the chief judge of Pinellas County Circuit Court to begin proceedings to appoint an independent guardian. The husband's attorney has called the law unconstitutional and is expected to initiate a challenge.

The chief judge Wednesday scheduled a Nov. 5 court hearing and has recommended Jay Wolfson, a public health professor at the University of South Florida, as guardian if the in-laws cannot agree on a new guardian.

The governor's order of reinsertion of the feeding tube has bought time for the advocacy center to conduct its investigation as to whether Terri Schiavo has been a victim of abuse and neglect in the past 10 years.

Under federal law, the agency is granted strong investigative powers, including examining medical and court-sealed guardian financial records, and its findings of abuse or neglect would be conclusive and pre-emptive of any court or other agency determination, said Patricia Anderson, an attorney for the Schindlers.

It was unclear why the agency hadn't launched an investigation earlier in the case of Terri Schiavo, who went into a persistent vegetative state after a heart attack induced by a misdiagnosed potassium imbalance in 1990. Her eyes are open, but she is seriously brain damaged, according to doctors.

The `big sharks' of disability

"They are referred to as the `big sharks' in the disability field," Anderson said of the agency. "What we have here is a guardianship system that discriminates against disabled people."

Richard LaBelle, a lawyer and agency board member who is involved in the investigation, said this week's events will aid the investigation. "I think to the extent that Terri is still alive and will be receiving food and water--we think that's a positive development," he said.

LaBelle said he did not know how long the probe would take, saying it depends on how much cooperation the agency receives in obtaining Terri Schiavo's medical records and its access to individuals on both sides of the court fight.

For his part, Michael Schiavo said Wednesday through his attorney that he is outraged that the legislative and executive branches would overturn a judge's order that had allowed the feeding tube to be removed.

"It was just an absolute trampling of her personal rights and her dignity," Michael Schiavo's lawyer, George Felos, said on NBC's "Today." "We believe that a court sooner or later, we hope sooner, will find this law to be unconstitutional."

Felos added it was "an absolute horrible tragedy for Terri Schiavo, literally being abducted from her deathbed and her death process."

Terri Schiavo already was showing signs of organ failure, Felos said. The lawyer for the parents, however, said that Felos has no medical background to make such a claim.

One legal expert, Marc Spindelman, an Ohio State University law professor who specializes in death-and-dying issues, said much is riding on what the advocacy center finds in its probe into claims by Terri Schiavo's parents that her husband abused and neglected her.

Michael Schiavo and his attorney have strongly denied those accusations.

"Should there be a determination that the allegations against Michael Schiavo are factually supported, it might be the case that the dispute gets resolved by more informal means," Spindelman said.

Some experts are viewing the case as if it's a foregone conclusion that the courts will overturn the new law, under the assumption that Bush and the Legislature overruled the courts. But that is not necessarily true, said Andrew Koppelman, a constitutional law expert at Northwestern University.

"I don't understand what separation of powers has to do with it," he said. "Some law is going to govern how people behave toward [Terri Schiavo] tomorrow. The Legislature has to have power to legislate today about what we do tomorrow, and that power is not taken away by the fact that the judiciary said something else yesterday."

Koppelman added that the Legislature's action may have aided the Schindlers' case.

"If there is a dispute about the constitutionality of the legislation or anything else having to do with the appropriateness of intervention, the court's first duty is to make sure neither side suffers irreparable injury that couldn't be remedied by subsequent litigation," he said.

Thus, the argument could be made that to remove nutrition and hydration before the case winds it way through the courts would cause Terri Schiavo to suffer "irreparable injury," experts said.

Copyright © 2003, Chicago Tribune