Right-to-Die Case Reaches Top State Court -- The wife of a semi-conscious man wants his feeding tube removed, but his mother and sister say he should be kept alive.

S.F. Daily Journal - May 31, 2001

By Peter Blumberg
Daily Journal Staff Writer
        

        SAN FRANCISCO - In a nationally watched right-to-die case, the California Supreme Court wrestled Wednesday with whether to pull the plug on a semi-conscious man whose wife wants his feeding tube disconnected.
        The justices heard oral arguments in a novel case about removing life-sustaining treatment from a patient who is incompetent to make medical decisions, but who is neither terminally ill nor in a persistive vegetative state.
        During the hour-long hearing, the justices struggled with how to weigh the best interests of the patient alongside the judgment of his conservator to determine whether his life is worth living.
        At issue is the life of 49-year-old Robert Wendland, who suffered traumatic brain injuries in a 1993 car accident that left him paralyzed and unable to speak, eat or control his bowel movements. He resides in a Central Valley hospital, where doctors have said he could continue to live in his current condition for many years, but with little hope for improvement.
        His wife, Rose, who insists that Robert would prefer to be dead, has been locked in a court battle since 1995 with his mother and sister, who both favor keeping him alive.
        In 1998, a San Joaquin Superior Court judge sided with the mother and sister, saying that Rose Wendland  failed to show "clear and convincing" evidence that her husband would have wanted to die.
        But the trial judge was overturned last year by the 3rd District Court of Appeal in Sacramento, which held that Rose's wishes should be honored because she acted in good faith based on medical advice.
        The 3rd DCA panel ordered the case back to the trial court for more hearings in front of Judge Robert McNatt, but the Supreme Court intervened at the request of the mother and sister.
        The key question for the high court Wednesday was how much authority to give a conservator - in this case, Rose Wendland - to substitute her own judgment about life support when her husband is so incapacitated that he can't communicate for himself.
        Courts have long recognized, dating back to the landmark case of Karen Ann Quinlan in 1976, that comatose or permanently unconscious patients can be removed from life support. The same goes for terminally ill patients.
        But last year's 3rd DCA decision was the first in the nation to authorize the removal of a feeding tube for a patient who is not terminally ill, but what doctors describe as "minimally conscious" because he exhibits some mental functions.
        The lawyer representing Robert Wendland's mother, Florence, argued Wednesday that the patient's constitutional "right to life" requires courts to give extra scrutiny when a conservator is making his health care decisions.
        Janie Hickok Siess of Sacramento said it's appropriate to require "clear and convincing" evidence that Robert Wendland would want to die before allowing a conservator to make that decision for him.
        Some of the justices indicated Wednesday that the matter is not so simple in light of legislation enacted last year that redefines conservatorship and does not explicitly discuss standards of proof for resolving life-or-death controversies.
        Under the revised language of Probate Code Section 2355, a legal conservator has broad authority to make medical decisions based on good faith and advice from doctors if they are made in the patient's best interests and account for the patient's values.
        "What does the trial court have to find?" asked Chief Justice Ronald George. "Does the trial court have to find what the wishes of Robert would have been or what they are with Robert, or must it also find that the removal of the feeding tube is in his best interests, and find both of those by the standard that you recognize?"
        Justice Kathryn Mickle Werdegar pointed to a precedent involving a patient in a vegetative state where the court ruled that the conservator could pull the plug as long as the decision was made in good faith.
        Asked to distinguish that case, Siess replied that Robert Wendland's ability to respond to "stimuli" and perform certain tasks demands more protection for his right to continue living.
        "The law is very clear and the law requires a higher standard of proof as you move down the continuum from a persistent vegetative state and permanent unconsciousness to an individual who is conscious and able to interact and respond to commands," she said.
        Later in the hearing, Justice Janice Rogers Brown indicated sympathy for Siess' argument that severely disabled patients targeted for sterilization enjoy more legal protection than patients such as Wendland whose lives are at stake.
        Beyond the legal issues, much of Wednesday's hearing was devoted to debate over Robert Wendland's cognitive capacity and how much he can understand and interact.
        The justices were curious, for instance, about the significance of Robert's response when he was asked to indicate 'yes' or 'no' to a series of questions using a push-button device. He gave neither a yes or a no when asked whether he wanted to die.
        Justice Marvin Baxter wondered whether Robert Wendland is even competent to answer such questions.
        Attorneys on both sides said he's not competent, but gave very different assessments of his mental acuity.
        Siess emphasized that Wendland participated and cooperated with his caregivers during therapy, a sign that he wants to live.
        But the attorney appointed by the court to represent Robert Wendland told the justices Wendland "has never even been close" to being able to competently answer yes or no questions about his fate.
        "This strikes me as a man who would probably not want to continue and would be much better off than he is now," said James Braden of San Francisco.
        Equally contentious was the issue of how to interpret Robert Wendland's own comments shortly before his 1993 accident about what he would want to happen to him if he were ever incapacitated.
        In trial court testimony, his wife and brother recounted that he discussed the subject at length and stated clearly that he never wanted to live as a "vegetable."
        Several of the justices wondered Wednesday whether such statements, while medically incorrect as a description of Robert's condition, could nonetheless satisfy the "clear and convincing" evidence standard to allow his conservator to end his life.
        "Is that a standard which can actually be met in the absence of very specific, precise instructions?" Brown said. "Can that standard ever be met?"
        George suggested it would be wrong to interpret Wendland's request not to be kept alive as a vegetable as broader consent to withdraw his life support while in a semi-conscious state.
        Lawrence J. Nelson, a San Francisco attorney representing Rose Wendland, said it's unrealistic to expect people to be familiar with fine distinctions in describing incapacitation.
        "Lots of bioethicists don't even get the terms straight," he said.
        The chief justice also expressed concern about opening the door for conservators to make life-ending decisions in cases where the patient is "quite cognitive," but has no physical capacity to communicate.
        Baxter said the court might send the wrong message to health care institutions and the public if it fails to insist that a patient must make his precise wishes known in advance in the event of a catastrophic accident or illness.
        "Shouldn't people be encouraged to set forth their instructions in a very specific way?" he said.
        George made an analogy to written wills, saying that careful people plan ahead.
        Oakland attorney Jon Eisenberg, representing a coalition of health care providers, argued in support of Rose Wendland that most people will never write down precise instructions about how they wish to be care for while incapacitated, even though that's precisely what is called for by the current Probate Code.
        "What this court says is not going to get people to leave instructions," he said.
        The case, Conservatorship of Wendland,, S087265, garnered major media attention Wednesday as one of the biggest right-to-die disputes in recent memory.
        The case also has drawn a variety of amicus briefs, from the American Civil Liberties Union and the California Medical Association on Rose Wendland's side, to disability rights and anti-euthanasia groups supporting Florence Wendland's position.
        Experts expect the case will have a broad impact, because the court's ruling could affect not only other people who were involved in traumatic accidents, but also thousands or millions of patients incapacitated with everything from Alzheimer's disease to senility.
        After Wednesday's hearing, as a slew of TV camera crews interviewed attorneys in the courthouse lobby, Siess said that if she loses at the state Supreme Court, she will file a petition the next day with the U.S. Supreme Court.
        "We will not stop," she said. "We will not allow this man to die."
        The court is expected to rule within 90 days.