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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tube be withdrawn.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.
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