IN THE TWILIGHT BETWEEN LIFE AND DEATH

By Jeff Stryker - 04/09/01

 

Medical tragedies can help cement families or tear them apart. In the case of Robert Wendland, a tragic auto accident initially brought his family together.

On September 29, 1993, Robert Wendland failed to negotiate a U-turn and flipped his Dodge Ram truck. No poster boy for highway safety, he had been drinking and had not fastened his seat belt. The catastrophic accident seriously injured his passenger, a sister-in-law, who later recovered. Robert did not. He has been in the hospital ever since the accident. The accident partially paralyzed him and rendered him comatose. His coma initially stretched on for 16 months, during which time he occasionally twitched or moved his fingers but showed no awareness. For more than a year his family visited Robert every day. They brought a VCR and refrigerator into the room; his children did homework there.

What Kind of Mental Life?

Finally, in 1995 Mr. Wendland emerged from his coma. He recovered only partially, however, achieving only a minimally conscious state and showing some modest signs of awareness. He would move his hand or leg when asked, for example.

Eventually the family had a falling out over Robert's treatment. The divisions emerged in the months after Robert regained some level of awareness. During the summer of 1995, he pulled out his feeding tube for the fourth successive time. His wife and daughters took this as a sign he no longer wished to live. Rose Wendland maintains that stopping treatment is not only the merciful course, it is what her husband would want, were he able to express his wishes. With the support of Robert Wendland's doctors, a hospital ethics committee, and an ombudsman, Rose Wendland, acting as her husband's conservator, asked that the feeding tube be withdrawn. For her, Robert "had already died" at the time of the accident.

But someone at the hospital alerted Mr. Wendland's mother, Florence, and she and Mr. Wendland's sister, Rebekah Vinson, sought a restraining order to block the withdrawal of treatment. In Florence Wendland's view, the prospect of her son dying of starvation and dehydration is barbaric.

The battle over Robert Wendland's treatment has stretched on for years. Today, he lives at Lodi Memorial Hospital, sustained by tube feeding. He cannot walk, talk, or communicate any meaningful thoughts. He is not, however, in a persistent vegetative state. Beyond that, the nature of his mental life and the meaning attached to his few communications is a matter of debate.

Robert Wendland does not recognize his wife or children. On his best days, Mr. Wendland, who used to be an avid reader and mechanical tinkerer, can hold a cup, roll a ball down a bowling ramp, and use a paint brush. His mother takes a bus three times a week to visit him at Lodi Memorial Hospital. She believes that he has "moods" and "preferences," even though he cannot speak to articulate them. Her confidence in the extent of Robert's awareness outstrips that of his doctors. She believes Robert "watches" television; the neurologists say it is more likely that he looks at the colors and shapes without being able to process what they mean.

Battles in Court

The fight between Robert Wendland's wife and his mother over his care has been winding its way through California courts for years. At issue is a California statute that vests the conservator with "exclusive authority" to make health care decisions. Does this violate the conservatee's constitutional right to life?

The case came before Stockton, California, trial court judge Bob McNatt in September 1995. He denied Rose the right to remove the feeding tube. "I don't know at this point whether here today I am preserving Robert's life or I am sentencing him to death," worried Judge McNatt.

As in many such cases, Mr. Wendland had left no living will or other documents to signal his values or beliefs regarding end-of-life care; nor had he appointed a health care proxy. The issue had come up not too long before his accident, however. Only three weeks before the truck accident, Rose had to decide about withdrawing life-sustaining care from her dying father. Rose Wendland maintains that in the course of helping to make this decision, Robert spoke about his own wishes in regard to end-of-life care. Judge McNatt concluded that Robert's remarks were too speculative and too remote to reflect accurately his wishes in the current predicament. Robert's remarks were thus not sufficiently "clear and convincing" for Judge McNatt.

An appellate court disagreed with Judge McNatt and ruled that he had applied the wrong test. The conservator did not have to show clear and convincing evidence of the patient's wishes, but merely had to demonstrate that she was acting in good faith and upon medical advice. Last summer, the California Supreme Court agreed to hear the case.

Beginning with the Karen Quinlan case in New Jersey in the 1970s, courts have allowed third party surrogates, usually close family members, to withdraw medical treatment from incompetent patients, including life-sustaining artificial feeding and hydration. Until now, the patients involved have been either fully unconscious or terminally ill. Robert Wendland is neither. State high courts in Wisconsin and Michigan have refused to let family members withdraw artificial feeding from relatives who were not in persistent vegetative state or terminally ill.

Pro-life and anti-euthanasia groups such as Not Dead Yet have aligned themselves with Florence Wendland in her fight to keep her son alive. They fear the Wendland case represents the next step on a slippery slope that will lead to the withdrawal of care from the most vulnerable of patients, such as those with Alzheimer's disease, mental retardation, and a range of mental and physical infirmities.

Robert Wendland's doctors, mainstream medical and bioethics groups, and the American Civil Liberties Union have lined up with his wife Rose and his daughters. The medical establishment worries that if the bar is set too high it will rarely, if ever, be permissible to withdraw treatment.

According to ACLU-Northern California staff attorney Margaret Crosby, although most people think about and discuss end-of-life issues from time to time, too few take the trouble to reduce their wishes to writing and communicate them to their doctors and loved ones. Requiring "clear and convincing" evidence of their wishes would be too difficult. "Imposing such a high evidentiary burden would impede many genuine treatment desires, thereby blocking a patient's constitutionally protected choice," said Crosby.

Lawyers for both sides will soon get a chance to tell their stories to the California Supreme Court.





©2000 California HealthCare Foundation. All Rights Reserved.
Privacy Policy. If you encounter any problems please contact
Customer Support.