Published Friday, August 10, 2001

Court sets life support standard

  • 'Clear and convincing evidence' is needed to unplug the semiconscious

    BY MATT SEBASTIAN


    CONTRA COSTA TIMES

    Relatives can't pull the plug on semiconscious family members simply because they once said they would never want to "live like a vegetable," the California Supreme Court ruled Thursday in a major right-to-die case.

    The justices ruled unanimously that conservators can't withhold life support unless they show "clear and convincing evidence" such action is in accordance with a patient's wishes or best interest.

    The decision comes in the nationally watched saga of Robert Wendland, a brain-damaged Stockton man who spent eight years in a semiconscious state before dying of pneumonia July 18. Although the issue is moot, the court retained the case to establish precedent.

    The justices ruled Wendland's comments about not wanting to be a vegetable failed to prove that he would have wanted to die or that death would have been in his best interest. Wendland's wife, Rose, spent years battling to have her husband taken off life support.

    "In this case, the importance of the ultimate decision and the risk of error are manifest," Justice Kathryn M. Werdegar wrote. "So too should be the degree of confidence required in the necessary findings of fact."

    Conservators retain discretion in most health care decisions, the justices noted. Only the most important judgment, withholding life support, requires evidence meeting the "clear and convincing" standard set forth in the ruling, according to the justices.

    Furthermore, Thursday's decision pertains only to a very narrow class: semiconscious, but not comatose, patients who have left no formal health care instructions and whose conservators want to withhold life support measures.

    Wendland's case, watched closely by right-to-die advocates around the country, pitted his wife and children, who wanted the 49-year-old's feeding tube removed, against his mother, who fought to keep her son alive.

    Thursday's 50-page decision, in line with the handful of other state supreme courts that have addressed the issue, was hailed by right-to-life groups for establishing how judges should handle battles over partially conscious, but incapacitated, patients.

    "This is significant because it maintains the historic protection that our society has had for the vulnerable," said Brian Johnston, director of the California ProLife Council. "Our greatest concern was that the legal veil of protection would be removed."

    Disappointed right-to-die advocates say the ruling reinforces the need for so-called "advance directives," written health care instructions that can include demands that life support not be administered.

    "This case highlights the importance of advance precautions should you ever be unable to speak for yourself," said Claire Simons, spokeswoman for the Compassion in Dying Federation.

    Wendland, a one-time auto parts salesman, flipped his pickup while driving drunk in 1993. He was in a coma for more than a year but regained partial consciousness and had some cognitive functions in the years before his death.

    In 1995, after Wendland pulled his feeding tube out for the fourth time, his wife began a crusade to let her husband die. She convinced a probate court to appoint her Wendland's conservator and petitioned to have his feeding and water tubes removed.

    Rose Wendland told the court that when she was confronted with the decision to take her dying father off a respirator, her husband said, "I would never want to live like that, and I wouldn't want my children to see me like that."

    The trial court ruled Rose Wendland had not shown, by clear and convincing evidence, that her husband would have wanted to die. But the California Court of Appeal disagreed, saying she wasn't required to prove her husband's wishes.

    The state Supreme Court sided with the trial court, finding Wendland's comments did not suffice to end his life.

    "While the assessment of a conservatee's best interest belongs in the first instance to the conservator, this does not mean the court must invariably defer to the conservator regardless of the evidence," Werdegar wrote.

    The case is Conservatorship of Wendland, S087265.

    Reach Matt Sebastian at 925-943-8257 or msebastian@cctimes.com.