Sunday, October 26, 2003

Terry Schiavo and the Limits of Expertise

It is natural, when confronted with heart-wrenching choices, to seek the counsel of others. And if a patient with a damaged brain is unable to make her own medical decisions, it is natural to seek such counsel from physicians. Anyone charged with life-and-death decisions about a loved one would want to know whether the patient is aware, can think and feel, can see and hear, can experience pain or pleasure. What do the medical experts say?

In the case of Terry Schiavo, the neurologists, as a group, would probably conclude that enough is enough, acording to a report in today's New York Times. Patients in persistent vegetative states, according to the Times's summary of the neurological criteria, do not "show self-awareness, comprehend language or expressions, or interact with others."

This sounds like something a doctor would say to explain to a relative that the patient's occasional apparent responsiveness was probably illusory. But it also sounds disturbingly like a description of many practicing attorneys. What seems missing, from all the neurological pronouncements, is a Sherman-like statement that consciousness is absent. In fact, on closer inspection of the medico-scientific colloquy, the question just seems to grow more and more ambiguous. One neurologist, for instance, is quoted as characterizing vegetative-state patients as in a condition of "wakefulness without awareness." If this is intended as a translation of neurological lore into helpful lay language that would dispel the uncertainties, perhaps the neurologist should give it another try. Other physicians seem to want to focus on the patient's chances of recovery -- but this seems to beg the question, because amputees don't recover either, yet we don't stop feeding them.

What the doctors should be saying, perhaps, or at least adding, is that medical science doesn't possess the answers to many of the truly central questions here. What is it to be a person, whose life is worth preserving? What is it to be conscious, to be aware? What should count as evidence, that a person understands a kiss or a caress? There may be medical facts that would inform a judgment on these questions. But the ultimate answers aren't medical or scientific. They have ethical and philosophical and humanistic dimensions not amenable to experimental test.

That is why Dahlia Lithwick has it right. Where the patient cannot make or articulate decisions about her care, the law needs to identify one single undisputed decision-maker, and for married people, there is no real choice but to make that person the spouse -- who will usually obtain medical advice and give it the appropriate weight in a decision also based on knowledge of, and compassion for, the patient as a person. If we start creating exceptions, so that all the interested parties may involve themselves with the same ease as in a probate dispute, we will inflict cruelty on all concerned, and end up with decisions based on litigation, expert testimony, and motions in limine. We need to solve fewer important problems that way -- not more.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.