The Schiavo Case in Wisconsin

Robyn S. Shapiro writes

... L.W. and Edna [Lenz v. L.E. Phillips Career Development Center (In re Guardianship of L.W.), 167 Wis. 2d 53, 482 N.W. 2d 60 (1992), and Spahn v. Eisenberg (In re Guardianship & Protective Placement of Edna M.F.), 210 Wis. 2d 557, 563 N.W. 2d 485 (1997)] suggest that if Terri Schiavo's case had unfolded in Wisconsin, the following analysis would apply:

Given that Terri Schiavo was in a persistent vegetative state, Michael Schiavo, Terri's legal guardian, would have had the authority, pursuant to L.W. and Edna, to direct the termination of her artificial nutrition and hydration, regardless of the weight of evidence about Terri's previously expressed wishes to forego life-sustaining procedures if she were to experience her current circumstances.

While Michael Schiavo's decision to direct termination of Terri's artificial nutrition and hydration would not have required prior court approval, Terri Schiavo's parents would have been able to challenge Michael's decision in court, pursuant to L.W. At that point, Michael would have had the burden to show, to a high degree of medical certainty, the existence of a persistent vegetative state and to show that his decision to have Terri's artificial nutrition and hydration withdrawn was in Terri's best interests and made in good faith. ...

Importantly, as noted by the L.W. court, best interest arguments against treatment termination could not be based on the need to protect Terri Schiavo from the potential pain and discomfort involved in the withdrawal of artificial nutrition and hydration. As explained by the L.W. court, this concern is inapplicable to individuals in a persistent vegetative state, because they cannot experience pain or discomfort. ...

Wisconsin Lawyer June 2005