Federal Judge Dismisses Parents' Lawsuit in Terri Schiavo Case

By Jeff Johnson | July 7, 2008 | 8:04 PM EDT

Capitol Hill (CNSNews.com) - A federal judge in Florida has refused to take jurisdiction over the case of a disabled woman whose husband is seeking to allow her to die of starvation and dehydration.

U.S. District Judge Richard Lazzara also refused to enter an injunction to order tests to determine if Terri Schindler Schiavo can swallow food on her own prior to next Wednesday's scheduled removal of her feeding tube.

"The motion to dismiss was granted," Pamela Hennessy, spokeswoman for the Terri Schindler Schiavo Foundation said in a telephone interview just after the hearing Friday afternoon. "He denied the injunction, as well."

As CNSNews.com previously reported Pinellas-Pasco County, Fla., Circuit Judge George Greer set Oct. 15 as the day healthcare workers must remove Terri's gastrostomy or "feeding tube."

Doctors say the 39-year-old woman, who suffered a brain injury in 1990 under questionable circumstances, is expected to die of starvation or dehydration within 10 to 15 days.

Terri's parents, Bob and Mary Schindler, filed the federal lawsuit Aug. 30 against Terri's husband, Michael Schiavo, his attorney, George Felos, and two of the nursing facilities where Terri was kept in the past.

The suit alleged violations of the Americans with Disabilities Act, the Emergency Medical Treatment and Active Labor Act, the Rehabilitation Act of 1973 and Terri's civil rights under the First, Fifth and 14th Amendments.

The action was filed after three of Terri's former caregivers submitted sworn affidavits claiming years of denied medical care, altered or destroyed medical records, and alleged attempts by Schiavo to kill his wife.

Though Schiavo has previously denied those charges, Felos has refused to discuss any aspect of the story with CNSNews.com since Sept. 16, when he falsely accused the news organization of misidentifying him in a story.

In a motion filed Monday, Felos asked the judge to dismiss the Schindlers' suit or find in favor of Michael Schiavo. Felos called the lawsuit "yet another attempt to find another forum to re-litigate what has been litigated many times before."

The motion also disputed the claims by Terri's family that Michael Schiavo stifled attempts to provide her with rehabilitation and other therapy. It was that motion that Judge Lazzara granted Friday.

Florida Gov. Jeb Bush had filed a brief with the federal court Oct. 8, suggesting that the judge gather more information before ruling.

"In light of the seriousness of this matter, and the inability to remedy an improper outcome, the governor has a strong interest in ensuring that Terri Schiavo's fundamental right to life is not deprived without due process of law," Bush wrote.

Unlike Terri's parents, Bush has conceded Judge Greer's determination that Terri would not want to be kept alive artificially. The governor argued that new tests should be administered to determine if Terri can orally ingest food and water.

"Neither oral feeding, nor the tests and therapy to accomplish oral feeding, would violate Terri's wishes. Only her wish to be free of artificial life support has been proved by clear and convincing evidence, not a wish to die," Bush stated in his 12-page brief.

"While Terri may not be able to eat orally again, there is enough doubt as to her potential for that limited rehabilitation that to do otherwise deprives her of her life without due process."

Felos told the Tampa Tribune Wednesday that the governor is only partially correct.

"In general I agree with the governor's position. We as a society have a duty to bring the spoon to the mouth of the disabled person," Felos admitted. "But the whole factual basis of the governor's argument is false."

Felos claims, based on tests conducted several years ago, that Terri is incapable of swallowing food and, therefore, providing her nutrition and hydration through the g-tube is "artificial life support."

Greer ruled Monday that no new swallowing tests would be administered. The family has not yet announced whether they will appeal that ruling. Hennessy said Lazzara's dismissal of the federal lawsuit may not be subject to appeal.

If Felos' assessment is incorrect, the hospice workers responsible for removing the tube may have to choose between violating Judge Greer's order or Florida law. Under Title 46, Chapter 825, Section 102 (3)(a) of the Florida Criminal Statutes, the crime of "neglect of an elderly person or disabled adult" occurs as the result of:

"A caregiver's failure or omission to provide an elderly person or disabled adult with the care, supervision and services necessary to maintain the elderly person's or disabled adult's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult."

Terri's parents have not yet said whether they might pursue criminal charges against the hospice workers if they attempt to remove the tube Oct 15.

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