Sunday, January 18, 2009

Looking up legal docs

Update: Document found. Thanks to Jonathan Prejean, who directed me to LEXIS/NEXIS. Yeah, I know: Why didn't I check that myself first. Well, see, I've never done it before, and... It took a bit of searching even there, but I now have the entire text. An interesting document. It looks to me like the 2DCA was very reluctant to say that her death was not "imminent," and that this was why they referred it to the Supreme Court as a question. There is even an urgent little bit at the end where they ask the Supreme Court to hurry up and hear the case lest (heaven forbid) the person in question should die with feeding and hydration in place while waiting for the courts to "assert her right of privacy." In fact, that's exactly what did happen in this case. But it does contain the "err on the side of life" direction, for what it is worth.

(Original post)

Not being a lawyer, I refer the following question to my sage readership. How can I get a copy of the actual text of the following appellate court opinion from Florida?

In re Guardianship of Browning, 543 So.2d 258 (Fla. 2d DCA 1989)

I rather fancy myself a rad Googler, but I've googled 'n' googled, and what I've come up with is the Florida Supreme Court opinion by the same name from 1990, here, and a summary of the 2DCA appellate court's opinion, here. It's at least mildly interesting that the summary of the 2DCA opinion says that it held that "a guardian of a patient who is incompetent but not in a permanent vegetative state, and who suffers from an incurable but not necessarily terminal condition, cannot terminate life-sustaining treatment and feeding by tube." The Supreme Court decision by the same name holds just the opposite. In fact, it concludes that a person's death is "imminent" if that person's death will be imminent if food and hydration are removed. Cute, huh? So all of us are "imminently" dying. One would normally conclude that the Florida Supreme Court had simply overturned the 2DCA on this point, yet the Supreme Court's decision is worded rather as an answer to a "question" which the 2DCA has referred to it. In fact, there's no reference in the Supreme Court's opinion at all to the fact (if the summary article is right) that it is coming to the opposite conclusion to that of the appellate court on a fairly important point. Just to make things a little more interesting, the appellate opinion is often quoted as stating that a proxy must "err on the side of life" when trying to decide what a ward's wishes would be regarding treatment (where "treatment" includes, perversely, food and water), but the Supreme Court decision neither affirms nor rejects this instruction. It doesn't mention it at all.

All of this makes me curious to see the full text of the appellate court's decision. Since Google has failed me, I'd like to know what to try next. Esteemed husband has a pretty good interlibrary loan service here at Big State University, but there is (as far as I'm aware) not an actual law library. Does one simply take the reference for the opinion to ILL and say, "Here, find me a copy of this, please"? Or is there some other database one can sign into to see it if one's university subscribes?

This is all for an article I'm working on that will be a restrospective of some of the legal issues surrounding the murder of Terri Schiavo.

Thanks to all you legal eagles in my readership for info.


William Luse said...

"a guardian of a patient who is incompetent but not in a permanent vegetative state, and who suffers from an incurable but not necessarily terminal condition"

The latter part of the sentence, beginning with "who", is a perfect definition of the condition named in the first part. The separation is evil. It's all right to be incompetent, as long as you're not in a pvs. They've got it marked out as a "special" condition requiring special treatment. It is to be found in both court decisions and legislative statutes in my wonderful state.

I'm surprised Lexis-Nexis was required. You'd think court decisions would be easily accessed as a matter of public record.

Interesting digging you're doing, btw.

Lydia McGrew said...

My impression is that they already had precedents in place allowing people to be dehydrated to death if they _were_ in a PVS. So this was an attempt to _extend_ that wonderful "right" to be dehydrated to death to other incompetent patients.

Be it noted that the Florida Supreme Court was only too happy to extend it. During Terri's death many people believed that if it could be shown that she was not actually in a PVS she could be saved. As it happens, the Supreme Court in the appeal decision I linked ruled that a person who was _not_ in a PVS could _also_ be dehydrated to death if it were determined by "clear and convincing evidence" that that was the decision the person "would have made for himself." So in other words, even if it could have been determined that Terri was not in a PVS, she was probably doomed.

Lydia McGrew said...

I should add, however, that it was highly questionable whether Terri's wishes were established by "clear and convincing evidence." To put it mildly. Not that one should be able to be killed even under those circumstances, but Greer really didn't make much attempt to hide his bias. Clear and convincing, my eye.