SAN DIEGO NEWS NOTES




Contents © 2002
by Jim Holman.
All rights reserved.
jholman@nethere.com



Big Win for Life

But Why Did Catholic Hospitals Push Euthanasia?

By Christopher Zehnder

"Do you have pain? Yes. "Do your legs hurt? No. "Does your buttocks hurt? No. "Do you want us to leave you alone? Yes. "Do you want more therapy? No. "Do you want to die? No answer." Picture two men, one asking the questions, the other responding, not in speech, but on an "augmented communications device" or "yes/no board." The questioner, a doctor, seeks to learn how far the recovery of the respondent, his patient, has progressed. This is an important question for the patient, Robert Wendland; it could determine whether he will be fed, or left to starve to death.

This "conversation" took place in 1997, almost four years after Robert Wendland rolled his truck in a 1993 high-speed accident near Lodi (10 miles north of Stockton). For some time after the accident, Wendland was in a coma; but sometime in late 1994 or early 1995 his wife, Rose, noticed signs of responsiveness in him. By late spring of 1995, Robert's "cognitive responsiveness" had improved to where he could throw and catch a ball, operate a wheel chair (with some assistance), draw an "R", make circles, and follow two-step commands. Robert couldn't feed himself, though, and received food and fluids through tubes inserted in his stomach. In 1996, Rose, in consultation with her daughters and Robert's brother, decided not to approve another operation to replace the dislodged feeding tubes, though she had approved similar treatment three times before. Robert would have been left to die, but for the intervention of his mother, Florence, and his sister, Rebekah.

So began a pivotal court case. Florence and Rebekah instituted court proceedings to keep Robert's doctor from removing the feeding tubes. (The doctor had inserted a feeding tube through Robert's nose while the hospital's ethics committee decided whether to accede to Rose's decision to forgo the operation to replace the tubes in Robert's stomach.) Rose Wendland then petitioned the court to make her Robert's "conservator," which, according to court records, gave her the authority "to withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration."

The court decided that a conservator did not have the authority to order the removal of life-sustaining assisted hydration and nutrition unless he could give clear and convincing evidence that the conservatee, while still competent, would want to die under the circumstances. Failing that, the conservator must prove that to remove the tubes would be in the conservatee's best interest. The court ruled that Rose Wendland, as Robert's conservator, had not met the clear and convincing evidence standard, and so found in favor of Florence Wendland and her daughter, Rebekah.

Rose appealed the ruling, and the court of appeals reversed the trial court's decision. While, in the opinion of the appeals court, the trial court "properly placed the burden of producing evidence" on the consevator and "properly applied a clear and convincing evidence standard," the trial court "erred in requiring [the conservator] to prove that [the conservatee], while competent, expressed a desire to die in the circumstances." The trial court should have been content "merely to satisfy itself that the conservator had considered [the conservatee's] best interests."

The California Supreme Court granted a review of the appeals court decision. While oral arguments were being given in July 2001, Robert Wendland died of pneumonia. But the supreme court did not dismiss the case, and on August 9, 2001, the supreme court gave its decision. Writing for the unanimous court, Justice Werdegar said: "we conclude a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence that the conservator's decision is in accordance with either the conservatee's own wishes or best interest. We reverse the decision of the Court of Appeal."

Rita Marker, an attorney with the Steubenville, Ohio-based Ethics and Advocacy Task Force of the Nursing Home Action Group, had filed an amicus curię ("friend of the court") on behalf of Florence and Rebekah. Marker said she found nothing disappointing in the Wendland decision -- except the position of those on the other side of the case. "The Wendland decision," she said, "is a magnificent decision;" because of it, "conscious, vulnerable people will be not be victimized in the way the other side sought to do."

Janie Siess, the attorney who represented Florence Wendland, said, "Those in the disability rights community, those against euthanasia, or anybody who believes in the sanctity of human life, see this case as the victory that it is."

According to Siess, Rose Wendland had no good reason to order the removal of Robert's feeding tubes. She had no financial obligations; the state of California paid for Robert's treatment after his insurance ran out. Rose's lawyer, Lawrence Nelson, admitted, "It's true [since 1996] the frequency of their visits went down. They didn't see him getting any benefit" from the treatments, said Nelson, and found it a "heartbreak to see him in that condition."

Three to four days a week, said Siess, Florence Wendland took the bus from Stockton to the hospital in Lodi, and spent the entire day with Robert. "Florence is a devout Christian," said Siess. "She prays, and she gets these little devotional magazines. She would read these to Robert, and she said he really enjoyed hearing those daily devotionals. She prayed with him and sang little Bible songs to him. You know that old hymn, "In the Garden"? [refrain: "He walks with me and He talks with me, and He tells me I am his own."] It's kind of hokey. That's one of Florence's favorite songs. She would sing that to him."

The difference between Florence and Rose Wendland, said Siess, is significant. "Florence Wendland looked at her son," said Siess, "and he was still her son. And she always loved him, the way a woman loves her child; for her, the glass was half full. Rose Wendland looked at Robert Wendland and no longer saw the man she'd married and no longer loved him for the man that he was now as opposed to the man he used to be."

On July 17, the Los Angeles Times said, quoting Lawrence Nelson: "At some point during his illness, Rose Wendland 'made the decision that aggressive treatment was not in his interest, and he was kept comfortable.'") "I went to the trial court," continued Siess, "and to the appellate court to get information about Robert's illness, to get my doctor in to examine him, and to find out what was going on with him, and they both denied me. I was literally at the clerk's office at the supreme court filing an emergency petition at the moment of Robert's death."

* * *

Oakland attorney Jon Eisenberg was surprised that Catholic Healthcare West, the Alliance for Catholic Healthcare, and Mercy Healthcare, Sacramento, would ask him to represent them as amici curię (friends of the court) on behalf of Rose Wendland. Eisenberg told me that he "took the traditional lawyer's approach" to understand the position of his Catholic clients: "I went to the writings of the Church and the hospital organizations." Eisenberg said that once he "became educated on the subject," he found "that it wasn't a surprise" that Catholic organizations would support the removal of feeding tubes from a patient. "There is a great deal of debate within the Church and within the healthcare organizations connected with the Church concerning end-of-life decision making," said Eisenberg.

I was surprised myself at Eisenberg's seeming interest in the question of Catholic ethics -- he told me that he himself embraced no religion, though he had an interest in theology. Eisenberg put me on speakerphone while he went through his papers to find the pertinent citations from Church documents. After he had read these citations, Eisenberg said his sense was that the debate in the Church over end-of-life decision-making has "resulted in decisions that really embrace a benefits/burden analysis, rather than any absolute approach to whether it is right or wrong to remove a feeding tube. The focus, as I understand it, even within papal encyclicals, and the guidelines for the healthcare organizations themselves, is really on benefits of treatment versus burdens derived from it."

Eisenberg quoted from directive 58 of the United States bishops' Ethical and Religious Directives for Catholic Healthcare Services: "A person may forgo extraordinary or disproportionate means of preserving life. Disproportionate means are those that in the patient's judgment do not offer a reasonable hope of benefit or entail an excessive burden, or impose expense on the family or the community."

"That is what I was referring to as benefits/burden analysis," said Eisenberg.

He then quoted directive 60 -- "Euthanasia is an action or omission that of itself or by intention causes death in order to alleviate suffering. Catholic health care institutions may never condone or participate in euthanasia or assisted suicide in any way."

"There is tremendous ambiguity here," said Eisenberg. How did Robert Wendland fit into what Eisenberg thought the key directive, number 58? "If when Robert Wendland was conscious, he had absolutely abhorred the life that he was ultimately reduced to," said Eisenberg, "and if he would have absolutely abhorred imposing the burdens on his family that they were suffering, seeing him in that condition, and if we had absolutely no doubt about that, I think the directive would fit his circumstance."

On June 1, Bishop Stephen Blaire of Stockton issued a statement on the Wendland case, which was published in the Stockton Record and on the website of the California Catholic Conference. Blaire noted that Church holds that one's "presumption must be in favor of life. Included in that is a presumption in favor of nutrition and hydration. Life is good, a precious gift from God, but not an absolute or ultimate good. Life is sacred and must be respected, but does not have to be preserved or prolonged at all costs. The ultimate good is eternal happiness in heaven."

Under what circumstances, then, may one withhold or withdraw medical treatment? Citing the 1980 Vatican document, Declaration on Euthanasia, Blaire said that "medical treatment can be withheld or withdrawn (after all proper consultations) if this treatment is of no benefit to the patient, carries a risk or is burdensome." Blaire quoted the Catechism of the Catholic Church, which says that discontinuing such procedures is permissible because, in so doing, "one does not will to cause death; one's inability to impede it is merely accepted."

Though Blaire noted the "extremes" that one must avoid -- "an insistence on useless or burdensome technology even when a patient may legitimately wish to forgo it," and the "withdrawal of technology with the intention of causing death" -- he made no statement about which course of action would be morally licit in the Wendland case. Instead, for all parties, he encouraged "prayerful discernment" in seeking the wisdom to decide what "best serves the interest of Robert, his family and the people of California."

"It is true what the bishop says, in part, about the declaration of 1980," said Father William Smith, a moral theologian at St. Joseph's Seminary in New York. The declaration, though, he said, "distinguishes between dying and non-dying patients, because it says that a refusal to use certain sorts of treatment is permissible 'when inevitable death is imminent.'" Monsignor Smith noted that two requirements come into play in deciding whether the removal of life-sustaining treatment is permissible in a particular circumstance: the first, there must be a reasonable hope that such treatment may be of benefit to the patient; and second, the treatment must not be merely "burdensome," but "excessively burdensome." Bishop Blaire, said Monsignor Smith, "needs a few more distinctions."

The "no reasonable hope of benefit" requirement, said Monsignor Smith, does not usually apply to assisted food and hydration -- "there's obvious benefit here; you're providing food and water. It's only when the reasonable hope of benefit is really mugged by excessive invasive technology that it goes down."

Monsignor Smith gleaned these two requirements both from the 1980 Declaration on Euthanasia, and from Pope John Paul II's encyclical, Evangelium Vitę, where he states that "euthanasia must be distinguished from the decision to forego so-called 'aggressive medical treatment.'" Monsignor Smith said that "most of the fireworks" in end-of-life disputes have been about assisted nutrition and hydration. "But there's another problem that the bishop [Blaire] didn't mention, and that's probably what did Robert Wendland in. That problem is antibiotics."

"I think everybody deserves regular antibiotics to ward off pneumonia the first time around," continued Smith. "If you are lying still on a bed with tubes coming in and out, it is inevitable that you're going to get infections, some of which are politely called 'nosocomial' [hosptal induced] infections. Then you get into the second round of high-tech antibiotics. Then you get into what are called guerilla antibiotics. Now it seems to me that if you are just warding off pneumonia, everyone deserves that treatment. When you go beyond that, you are, in fact, prolonging the act of dying. But this man [Robert Wendland] was not a dying patient."

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