| Statutory Citations |
Florida |
Florida Health Care Advance Directives Act [1984, 1985, 1990, 1992, 1994, 1997, 1999, 2000, 2001], Fla. Stat. Ann. §§765.101 to 765.404; §§765.1105 to 765.1115.
House Bill 35E: Authorizes the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration if, as of October 15, 2003:
(a) That patient has no written advance directive;
(b) The court has found that patient to be in a persistent vegetative state;
(c) That patient has had nutrition and hydration withheld; and
(d) A member of that patient's family has challenged the withholding of nutritionand hydration.
Note: This bill, referred commonly to as "Terry's Law." was hurriedly passed and signed into law on October 21, 2003. The new law authorized Florida Governor Jeb Bush to order the restoration of Terri Schiavo's tube feeding after a Florida court authorized its withdrawal after a length court battle. See Schiavo (2003) (below).
Documents
Free advance directive documents and instructions from Partnership for Caring.
| Case |
Corbett v. Alessandro, 487 So. 2d 368 (Fla. Dist. Ct. App.), review denied, 492 So. 2d 1331 (Fla. 1986). |
| Court |
Florida District Court of Appeal, 2d District |
| Year |
1986 |
| Patient (age) |
Helen Corbett (73) |
| Nutrition + hydration |
Nasogastric tube |
| Mental capacity |
Persistent Vegetative State (PVS) |
| Decision maker(s) |
Husband |
| Setting |
settng |
| Patient's Wishes |
Mrs. Corbett's husband of 45 years claimed that she would not want to be sustained by tube feeding in her present condition. |
| Court's Decision |
The court found that patients have a right to refuse medical treatment based on the right to privacy found in both the Florida Constitution (Article I, section 23) and the U.S. Constitution. The court specifically found that artificial feeding fell into the category of "extraordinary treatment" that could be withheld or withdrawn, without limitation by the legislature. The court also found that patient's like Corbett (in a PVS, with no reasonable prospect of regaining cognitive brain function) may have their right to refuse treatment put into effect by a third party (in this case, her husband).
Note: Although this ruling is binding only in Florida's Second Appellate District (central Gulf Coast: Lakeland - Tampa), the fact that the Florida Supreme Court refused to hear an appeal suggests that the precedent will hold, statewide.
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| Outcome |
Mrs. Corbett died while her case was before the courts. |
| Citation |
Partnership for Caring, Inc. (2001), Fact Sheet, Corbett v. Alessandro. |
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| Case |
In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990). |
| Court |
Florida Supreme Court |
| Year |
1990 |
| Patient (age) |
Estelle Browning (89) |
| Nutrition + hydration |
Nasogastric tube |
| Mental capacity |
Major and permanent brain damage (from stroke); conscious but incompetent to make medical decisions; a condition bordering on Persistent Vegetative State (PVS) |
| Decision maker(s) |
Doris Herbert, 2nd cousin and legal guardian |
| Setting |
Florida nursing home |
| Patient's Wishes |
Browning's living will stated that she would want medical treatment withheld or withdrawn (including tube feeding) if she was in a "terminal condition" and if her death was "imminent." Doris Herbert and several neighbors testified that Mrs. Browning would not want to be maintained on life support in her present condition. |
| Court's Decision |
The court determined the Browning's living will was operative because her condition was 'terminal" since she would surely die shortly after the withdrawal of tube feeding. More generally, the court found that the right to privacy charted in Article I, section 23 of the Florida Constitution, covers all health care decisions, is not limited to the type of treatment at issue in this case, and that the right to forgo treatment is not lost when the patient is unable to make medical decisions on his or her own behalf.
In addition, the court found that none of the traditional state interests (preservation of life, prevention of suicide, protection of innocent third parties, and preservation of medical profession's ethical integrity) were significant when balanced against Browning's right to refuse treatment.
The court also noted, however, that there must be "clear and convincing evidence" of a patient's desire to forgo life-sustaining treatment and that, in the absence of a written evidence, the burden of proof is on the party seeking to forgo treatment. Further, the patient must have no reasonable probability of recovering competence (certified by the primary physician and two specialists). Also, any limitations or conditions previously expressed by the patient must be considered.
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| Outcome |
Mrs. Browning died with her NG tube in place while her case was on appeal. |
| Citation |
Partnership for Caring, Inc. (2001), Fact Sheet, In re Guardianship of Browning. |
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| Case |
Schindler v. Schiavo (In re Schiavo), 851 So. 2d 182, 2003 Fla. App. LEXIS 8342 (Fla. Dist. Ct. App. 2d Dist., 2003) |
| Court |
Florida District Court of Appeal, 2d District |
| Year |
2003-2004 |
| Patient (age) |
Terri Schiavo (40) |
| Nutrition + hydration |
Gastrostomy |
| Mental capacity |
Persistent Vegetative State (PVS) |
| Decision maker(s) |
Husband |
| Setting |
Woodside Hospice (Pinellas Park, FL) |
| Patient's Wishes |
Schiavo's husband has testified at trial that his wife would not want not be kept alive in her present circumstance. Schiavo's sister and parents contest this point, and further argue that Schiavo's mental condition is not as bad or as hopeless as physicians appointed by the court have testified that it is. |
| Court's Decision |
The district court found that a surrogate or proxy may exercise the constitutional right of privacy for an incompetent person who, while competent, expressed his or her wishes to discontinue artificial life-prolonging procedures. As such, continued utilization of life-prolonging procedures -- specifically, tube feeding -- violates the right to privacy guaranteed to Mrs. Schindler by the Florida constitution (see Corbett and Browning above). The court found Schiavo's husband to be acting in good faith on his wife's behalf, and accepted the findings of court appointed physicians that Schiavo is in a PVS, without reasonable hope of recovery. The Florida Supreme Court refused to hear appeals of this ruling on three separate occasions. Withdrawal of tube feeding was authorized and commenced on October 15, 2003. |
| Outcome |
The Florida legislature passed and the governor signed a bill that authorizes Governor to issue one-time stay to prevent nutrition and hydration from being withdrawn for patients in a PVS when there is disagreement among immediate family members about the decision and there are no written directives in place, pending appointment of a guardian ad litem to consider the interests of the patient. Governor Jeb Bush exercised his authority in this case and forced reintroduction of tube feeding for Mrs. Schiavo on October 21, 2003.
The law was ultimately ruled inconsideration but legal wrangling over whether Terri Schiavo was actually in a persistent negative state, the suitability of her Michael to serve as guardian, and what the wishes of Terri Schiavo would be regarding continued tube feeding persisted for another year-and-a-half.
In March of 2005, the U.S. Congress passed and President Bush signed a private bill into law that gave Terri Schiavo's parents the right to have their case heard in the federal courts when it appeared all state court options had been exhausted. But federal judges in the 11th circuit and ultimately, the U.S. Supreme Court, refused to hear the case.
Terri Schiavo's feeding tube was removed (for the third time) on March 18, 2005. She died of dehydration 13 days later, on March 30, 2005.
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