Originally Published Wednesday, July 18, 2001

Robert Wendland dies

By Linda Hughes-Kirchubel

Record Staff Writer

LODI -- Robert Wendland, the 49-year-old Lodi man unwittingly catapulted into a legal and ethical battle that landed in the California Supreme Court, died Tuesday of pneumonia at Lodi Memorial Hospital.

Hours after Wendland's midafternoon death, a spokeswoman for the California Supreme Court said the court will wait until it has received "formal notification" of Wendland's passing to decide whether it should dismiss his case, which fixed a national spotlight on the struggle between Wendland's wife and conservator, Rose Wendland, and his mother, Florence, over whether he should live or die.

The court had until Aug. 28 to decide whether portions of the California Probate Code were unconstitutional or whether Rose Wendland was within her legal rights to authorize the removal of the tube that kept her husband alive.

"The Supreme Court does not automatically dismiss a case in the event that one of the parties dies," said Lynn Holton, spokeswoman for the California Supreme Court. "This has happened before, and the court has retained jurisdiction in the case. The court would not make a decision on this until it's received formal notification from the attorneys."

Wendland's case began the night of Sept. 28, 1993, after he failed to negotiate an onramp from Highway 12 to Interstate 5. With his blood-alcohol level more than twice the legal limit, Wendland was thrown from his vehicle and ended up on the side of the road. He suffered traumatic brain injuries that left him comatose for months.

After coming out of the coma, Wendland would never be the same. He could not speak. He could not feed himself. It was unclear how much he comprehended.

Wendland lingered in an altered state of consciousness, unable to communicate or care for himself for more than seven years while his wife and mother battled over whether he should live or die.

The hospital and surrounding neighborhood remained quiet Tuesday afternoon, even as events dramatically and quickly unfolded.

It appeared the end was near for Wendland late last week. His condition deteriorating, his mother restricted from taking him from his room, the legal battle heated up. On Monday, Florence Wendland's attorney, Janie Hickok Siess, had filed a writ asking the 3rd District Court of Appeal to release information about Robert Wendland's medical condition.

The petition also included a request the court require an autopsy in the event Wendland died. The appellate court referred the matter to the state Supreme Court.

"I was filing the petition with the Supreme Court exactly when he died," Siess said. Shortly before 3 p.m. Tuesday, Wendland died of pneumonia.

Siess said Florence Wendland was by his side.

"He was just barely breathing, and they gave him some type of shot and a few minutes later he quit breathing and that was it," Siess said.

Wendland's wife's attorney, Lawrence Nelson, said Wendland's file had for years included a "do not resuscitate" order but that doctors treated the pneumonia with medication.

"He did receive some treatment," Nelson said. "It was unsuccessful, and the decision was made not to pursue it (further.)"

Ken Owen, founder of Christian Community Concerns -- which supports right-to-life issues and once demonstrated in support of Florence Wendland's efforts to keep her son alive -- criticized that decision.

"If they said, 'He's going to die anyhow, so let's not treat him, there is something wrong with that,' " Owen said. "He had a right to live, and the doctors and his wife did not have a right to play God in that situation."

Rose Wendland, 44, called her husband's death ''peaceful, dignified and unmarred by pain or suffering.''

''Today his right to live free of tubes and medicines that could not really make him better has finally been made real,'' she said in a statement. ''But it had taken way too long for this to happen.''

Nelson said the family felt "tremendous relief" at Robert Wendland's death. Wendland's brother, Michael Hofer, did not return messages left Tuesday.

"They feel Robert's wishes and rights have finally been respected," Nelson said. "They felt this is where he ought to have been for a long time, ... had he lived and died as he wanted to."

Florence Wendland could not be reached for comment.

Siess has frequented the media spotlight, appearing at times with Nelson and Rose Wendland on morning news shows. She has argued the Probate Code is unconstitutional as written and insists Rose Wendland has no right to withdraw the feeding tube that keeps her husband alive.

Rose Wendland said her husband told her shortly before his accident that he would never want to live "as a vegetable." In 1995, she successfully petitioned the courts for permission to authorize removal of his feeding tube, but an anonymous phone call from hospital personnel to Florence Wendland caused a chain reaction of legal events in place the day Wendland died.

Florence Wendland obtained an order to halt the withdrawal of nutrients to her son, sparking a trial to determine Robert Wendland's fate. A San Joaquin County Superior Court judge ruled in Florence Wendland's favor, but a higher court said Judge Robert McNatt erred in his ruling. The matter was taken before the state Supreme Court in May.

Dr. Vincent Fortanasce is the board-certified neurologist for Siess who, after examining Robert Wendland, testified at the trial. He said he tried unsuccessfully to see Wendland earlier last week, at Florence Wendland's request.

He was told Robert Wendland was receiving morphine sulphate, he said, and expressed concern that it was a drug often used for euthanasia.

"If he did have pneumonia and was receiving morphine sulphate, that would suppress his respiration and make him go quicker," Fortanasce said. "That's the last thing you would want to give a patient with pneumonia."

Following the Supreme Court arguments, Rose Wendland said she grieved for what her husband had missed since the night of his accident.

"He missed our daughter's graduation from college," she said, surrounded by her family, her attorneys and a crush of media from both state and national organizations. "He missed our son's 16th birthday. He missed our (younger) daughter going to UC Davis. We thought (death) only happens to old people."

And she took fierce issue with those who suggested she had ulterior motives for wanting her husband's life to end.

"You think I wouldn't want him back?" she asked. "I'm fighting for his wishes, because that's all I can do for him."

With Robert Wendland's death, it remains to be seen whether the state's highest court will go forward and issue a ruling that clarifies the part of the Probate Code which Wendland's relatives fought over for more than five years.

The code requires conservators show through a preponderance of evidence that they have consulted medical experts and are acting in good faith on the conservatee's behalf. Siess had argued for a higher level of proof. She also argued the code, as written, is unconstitutional because it infringes upon one's right to life.

John Sims, professor of law at University of the Pacific's McGeorge School of Law in Sacramento, said the court could decide to rule since the issue is likely to come up again. But if the court decides it makes no sense to rule on this case, it could be over.

"(The court) is now aware that no matter what it says in that case it won't make any difference at all to parties involved in the case, so the question is should a court plunge ahead and make a decision to clean up the law?" Sims said. "Deep down, my suspicion is that court will be reluctant to render a decision since it would depend on the particular circumstances of this case."

Record staff writers Audrey Cooper and Neil Gonzales and the Los Angeles Times contributed to this report.

* To reach reporter Linda Hughes-Kirchubel, phone 546-8297 or e-mail lkirch@recordnet.com