National Right to Life

June 2001

Another Dimension of Death
by Dave Andrusko

As fate would have it (and I swear this is true), only moments after I sat down to write on the fateful case of Robert Wendland my son came by to ask me to lend him a hand. David informed me (with a deadline 12 hours away!) that his AP history assignment was to research the cultural significance of Rod Serling's The Twilight Zone.

A wave of deja`vu swept over me. The Wendland case not only carries immense cultural significance, when you read about the battle this courageous 49-year-old man and his elderly mother are fighting, you're struck by the sense that, indeed, "You're traveling through another dimension, a dimension not only of sight and sound but of mind; a journey into a wondrous land whose boundaries are that of imagination. That's the signpost up ahead - - your next stop, the Twilight Zone!" Or San Francisco.

Come with me to a quiet courtroom in the city by the bay just a few weeks back. Seven justices of the California Supreme Court are earnestly engaging attorneys for both sides. Mr. Wendland's wife, Rose, is asking the court to allow her to have food and fluids removed from her husband who, while severely disabled, is neither terminally ill nor in a so-called "persistent vegetative state (PVS)," according to the San Francisco Chronicle.

While the trial court held there is no "clear and convincing" evidence that Wendland would wish to die an ugly death from dehydration, most media outlets frame his fate as the latest chapter in the ongoing "right to die" saga. To reporters caught up in the rhetoric, it's as if Robert Wendland is updating Patrick Henry. It's now "Give Me Liberty, which is Death."

The rub for those who are determined to remove his only source of food and water is that Mr. Wendland is clearly not in a PVS or "permanently unconscious," the reigning criteria for dehydrating people to death. Well, how to thread that needle? For starters, coin a new euphemism that not only sounds awful but minimizes his humanity: Wendland is said to be in a "minimally conscious state."

Understand that this factoid is a term that can be found in no medical textbook or medical journal. Rather it's one of those handy-dandy handles slapped on Wendland to get around the medical realities.

If you can believe initial press accounts, members of the California Supreme Court were skeptical, perhaps because they recognized how wide a net a decision supporting Rose Wendland might cast. As the Chronicle put it, legal experts predict that a ruling in this area "could affect stroke victims, Alzheimer's patients and hundred of thousands of others suffering from degenerative mental disease."

Gerald Uelman, a professor at Santa Clara University School of Law, has taken no side on the case. He told People magazine, "If we're saying you can disconnect life support for someone who is minimally conscious[!], the next step might be to do it for people who are mentally retarded or unable to walk."

By contrast there is Jon Eisenberg, an attorney representing the California Medical Association, which argues that Rose Wendland ought to be allowed to have her husband's food and fluids withdrawn. "It's profoundly important to every one of us," Eisenberg said, adding, ominously, "and many of us are going to have to make end-of-life decisions for ourselves or for our family members."

As Tom Marzen explains in his brilliant background analysis found on page 1, even though many vulnerable disabled people are already being quietly dispatched in our nation's hospitals and nursing homes, there are, in theory, limits.

On the one hand courts have routinely held that if a patient is deemed either to have a terminal condition or be permanently unconscious, then withdrawal of food and fluids is in the discretion of the patient's guardian or other surrogate. But, on the other hand--and this is crucial--if the individual is neither permanently unconscious nor has a terminal condition, then food and fluids can be withdrawn only if he/she has left behind "clear and convincing" evidence that this is specifically what the patient would have wanted.

Back in 1996, a trial judge dismissed Rose Wendland's case on the grounds that she had not presented clear and convincing evidence that dying would be what her husband would want. The Third District Court of Appeals, however, came at the case from a different angle.

The appellate court held that under California law, conservators (guardians) can withhold or withdraw food and fluids from their wards, regardless of whether they are permanently unconscious or terminally ill, if they decide this in "good faith" and based on medical advice. The problem is, of course, that it is very difficult to prove that a guardian is deciding in "bad faith" and there are certainly doctors out there willing to "advise" guardians to withhold or withdraw food and fluids from wards with serious and permanent mental disabilities.

There are a number of "facts" surrounding the case that do not bear up under scrutiny.

For example, habitually, the impression is left that Wendland never "woke up" from his September 23, 1993, car accident. He did - - he awoke from the coma 16 months later and has been conscious ever since.

According to Janie Hickok Siess (the attorney for Florence Wendland, Robert's mother, who is fighting for her son), Robert Wendland does not have "minimal motion." He has full motion on his left side, though he is partially paralyzed on his right side.

Nor is Mr. Wendland unresponsive. Siess and Florence Wendland (who, though frail and 79 years old, visits her son three or four times a week at the Lodi Memorial West Hospital near Stockton, California) say he responds to commands and participates in the hospital's multipurpose room. They say he likes to paint pictures and bowl.

This is by no means to minimize the severity of his injuries but to recognize that something more important is at stake. "It's like he's in a manhole and he's just climbing out," Florence Wendland told People magazine. "Let him have the chance to climb out."

If you take away nothing else from these remarks, please store away the knowledge that Wendland v. Wendland potentially could obliterate one of the most significant remaining toeholds preventing a free-fall slide down the slippery slope. A decision is expected by this fall.

Dave Andrusko can be reached at dha1245@juno.com