Saturday, August 16, 2008


Object Lesson

Dr. Steven Novella, a neurologist at Yale University, has begun a "dialogue" at his blog, NeuroLogica, with Dr. Michael Egnor, a pediatric neurosurgeon at Stony Brook University and Discovery Institute shill, over the Terri Schiavo case. I put "dialogue" in quotes because it is likely to be, in fact, a one-way conversation, with Dr. Novella giving thoughtful and nuanced consideration of the medical and ethical issues involved in the diagnosis of persistent vegetative state (PVS) on the one hand and Dr. Egnor, as is his wont when it comes to evolutionary science, giving crude factual misstatements on the other, such as this one:

PVS is the medical assertion that a human being is an object, but not a subject.
I'll leave it to Dr. Novella to discuss the medical attitude toward PVS. It's worth noting that Dr. Novella also gets the legal situation correct but I'd like to just add a few words on that topic.

First of all, it is the law that governs whether or not a patient is to be treated as a "person" or as an "object" (or, as Dr. Novella points out, a "corpse"). Doctors are free to have their personal philosophical opinions about the dividing line between life and death but, ultimately, their behavior is circumscribed by the law, just as it is for everyone else in society who might be contemplating actions involving the life of others.

Contrary to Dr. Egnor's assertion, the premise of the Florida courts was not that Terri Schiavo was an "object" but, rather, that she was a "person," with a "fundamental right of self-determination subject only to the state's compelling and overriding interest." In short, she had a basic right to "liberty" that included the right to refuse medical treatment. As the Supreme Court of Florida laid out in the case of In re Guardianship of Estelle M. Browning:

An integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment. "We can conceive of few more personal or private decisions concerning one's body that one can make in the course of a lifetime . . . [than] the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment."

Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. (Citations omitted)
Naturally, difficulty arises when a patient, like Ms. Schiavo, is not competent or even able to express herself. It is commonplace in such situations for the individual's right to self-determination to be exercised on his or her behalf by either natural guardians (spouses, parents or other next-of-kin) or court-appointed guardians. For example: parents decide on medical treatment for underage children and next-of-kin decide the treatment to be given to someone rendered unconscious in an accident. Again as Florida's Supreme Court said:

The primary concern ... is that this valuable right [to self-determination] should not be lost because the noncognitive and vegetative condition of the patient prevents a conscious exercise of the choice to refuse further extraordinary treatment.
It becomes even more difficult when the natural guardians disagree as to what path the incompetent would want to pursue. Then the courts have no option but to adjudicate the issue in the same manner as they do all the other disputes that arise in society (through the taking of testimony and other evidence and through logical inference), with the aim not to determine what the best course of medical treatment would be but what the person would want done if she was able to make the choice. Many thousands of hours of testimony, legal argument, judicial consideration and appeals went into making the best possible determination of what Ms. Schiavo would have wanted done to and for her in her situation. The detailed decision of Judge George Greer gives a hint of all the care the courts gave to Ms. Schiavo's rights as a person.

Dr. Egnor might feel that it was the better "treatment" of Terri Schiavo to keep her alive artificially but that's not his decision to make ... precisely because she was never treated as an "object."

P.S. Dr. Novella has posted again on the Schiavo case, reviewing the publically-available medical evidence that makes it clear that she was in a persistent vegetative state with essentially zero chance of improvement, much less "recovery."

You know... trying to debate Egnor strikes me as being about as futile as debating a Teddy Ruxpin doll.

Beautiful analysis of the way the law works in cases like these, John.

Egnor fits the stereotype of surgeons as egomanical alpha males who cannot conceive of being wrong on any point and who, therefore, delivers himself of the most egregious nonsense with utter confidence.

I suppose you have to have such a personality to cut into peoples' brains without flinching.
In the future, whether or not someone is in a PVS is unlikely to matter.

Right now, Florida state law requires that the individual be in PVS or have certain other "qualifying" conditions before a feeding tube (or respirator, etc.) can be removed.

However, federal decisions (e.g. Quinlan, Cruzan) have firmly come down on the side of the individual to refuse ANY medical care.

Justice O'Connor even talks about the "burden" of a feeding tube.

Because of those rulings I am extremely skeptical any state restrictions (must be in a PVS, etc.) would survive appeals in federal court.
Excellent entry. Absolutely right.
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