Trying to Make Out a Colorable Legal Claim
Since I wrote the previous post, I've been wracking my brains (on and off; I've been in class) trying to devise a colorable legal claim that gets to the heart of the Schindler's argument - that Terri has been incorrectly diagnosed as PVS - without just saying, "The trial court was wrong; review the facts de novo."
The best I can come up with (and I actually think it's a decent claim) is that, in cases where the the state is going to order that someone be killed*, and where the decision to kill that person hinges, as a matter of law, on a determination of a medical fact (such as a finding of PVS), the due process clause of the Fourteenth Amendment requires that all reasonable efforts be made to make that the determination is correctly made. Which would mean that, for those said to be PVS, at the very least an MRI and a substantial period of observation by the diagnosing doctor would be required. In other words, the Constitution requires that, in civil proceedings in which a certain diagnosis may mean death, the court not be permitted to rely on for-hire medical experts who fly in, make a cursory examination, give a litigant the diagnosis they want, and then leave. The Constitution doesn't require heroic levels of medical examination, but given the gravity of the constitutional right in jeopardy and the risks of misdiagnosis (in one British study, 43% of PVS diagnoses were believed to be incorrect, with another 33% of those diagnosed with PVS recovering with therapy, which, again, Terri has not had [but I digress]) something more exacting than what Terri got - 45 minutes of observation and a view of an old CAT scan - is surely required.
* as, whatever you think of the case, Terri's present state and her pre-accident desires, has clearly happened here
I don't know whether this claim would ultimately prevail, but it's at least a colorable legal claim that might prevail, and would therefore obliged Judge Whittemore to issue the TRO ordering the tube's reinsertion.
The best I can come up with (and I actually think it's a decent claim) is that, in cases where the the state is going to order that someone be killed*, and where the decision to kill that person hinges, as a matter of law, on a determination of a medical fact (such as a finding of PVS), the due process clause of the Fourteenth Amendment requires that all reasonable efforts be made to make that the determination is correctly made. Which would mean that, for those said to be PVS, at the very least an MRI and a substantial period of observation by the diagnosing doctor would be required. In other words, the Constitution requires that, in civil proceedings in which a certain diagnosis may mean death, the court not be permitted to rely on for-hire medical experts who fly in, make a cursory examination, give a litigant the diagnosis they want, and then leave. The Constitution doesn't require heroic levels of medical examination, but given the gravity of the constitutional right in jeopardy and the risks of misdiagnosis (in one British study, 43% of PVS diagnoses were believed to be incorrect, with another 33% of those diagnosed with PVS recovering with therapy, which, again, Terri has not had [but I digress]) something more exacting than what Terri got - 45 minutes of observation and a view of an old CAT scan - is surely required.
* as, whatever you think of the case, Terri's present state and her pre-accident desires, has clearly happened here
I don't know whether this claim would ultimately prevail, but it's at least a colorable legal claim that might prevail, and would therefore obliged Judge Whittemore to issue the TRO ordering the tube's reinsertion.
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