Originally Published Friday, August 10, 2001

Mom lauds Wendland case ruling

By Jeff Hood

Lodi Bureau Chief

The late Robert Wendland served his purpose on Earth, his mother said Thursday after a unanimous state Supreme Court ruled that life-sustaining treatment can't be removed from a patient who is neither dying nor comatose.

"He didn't die in vain," Florence Wendland said from her apartment near Stockton's Louis Park. "He did what he always wanted to do, which is help people."

Although Robert Wendland died of pneumonia July 17 at Lodi Memorial Hospital, the Supreme Court voted 6-0 that a conservator may not order nutrition and hydration withheld if a barely conscious patient has not left formal instructions of his wishes.

The court battle over Wendland's treatment drew national attention because of his in-between status. Wendland wasn't comatose, but neither was he fully conscious. He could breathe without a respirator, but the severe brain injury he suffered in a Sept. 28, 1993, auto accident left him unable to talk and, at times, unable to answer simple yes-or-no questions by pressing a button.

Wendland's wife, Rose, who was acting as his conservator, had asked that her husband's feeding tube not be reinserted after it had come out a fourth time in 1995. Before his accident, in which he was driving drunk, Robert Wendland had supposedly told her and his brother he would not want to live in a vegetative state. Those wishes, however, were not in writing.

Justice Kathryn Mickle Werdegar wrote that Rose Wendland failed to show "clear and convincing evidence" her husband wished to die, backing the 1997 ruling by San Joaquin County Superior Court Judge Bob McNatt and reversing a 3rd District Court of Appeal decision that said McNatt set too high a standard.

"Only the decision to withdraw life-sustaining treatment, because of its effect on a conscious conservatee's fundamental rights, justifies imposing that high standard of proof," Werdegar wrote. "Therefore, our decision today affects only a narrow class of persons: conscious conservatees who have not left formal directions for health care and whose conservators propose to withhold life-sustaining treatment for the purpose of causing their conservatees' deaths."

Attorneys arguing on behalf of Rose Wendland's right to have care withheld harshly criticized the Supreme Court, saying patients who haven't left instructions are doomed to years of suffering and a poor quality of life.

"Your wishes, your values, the things you cared most about in life, maybe once those are lost, maybe life has no value," said attorney Lawrence Nelson, who represented Rose Wendland. "I think this opinion shows a profound disrespect for that."

Nelson said McNatt's original ruling was flawed, because he appointed Rose Wendland as conservator, then wouldn't let her carry out a conservator's duties.

"Robert could do a few simple things," Nelson said. "We don't deny that. But he didn't want the type of life he had."

Robert Wendland's court-appointed attorney, James Braden, said Thursday's decision was one of the worst he has seen, saying it was filled with errors and misses the point of 1999 state legislation that allows conservators to act on behalf of patients.

"Once a person is appointed, then that person needs freedom of movement," Braden said. "Absent writing, how are you ever going to be certain?"

But a victory for Rose Wendland would have equaled court-sanctioned euthanasia, said Janie Hickok Siess, Florence Wendland's attorney. Had the court ruled otherwise, Siess and Arcadia neurologist Vincent Fortanasce said, patients with neurological diseases such as Alzheimer's and multiple sclerosis or even those with profound mental retardation could be starved or dehydrated to death if they were unable to communicate their wishes and conservators tired of caring for them.

"This has been misidentified as a right-to-die case," said Fortanasce, who examined Robert Wendland in 1995 and 1996 and testified on behalf of Florence Wendland. "A right-to-die (individual) is someone who wants to die and tells you. We agree that if a person is competent and reasonable, a person has that right. In this case, we don't know what his wishes would be."

Siess, a Lodi resident, said the 6-0 decision was her biggest thrill as an attorney, coming in her first case before the state Supreme Court.

"I lived in fear for six years of losing and looking (Florence Wendland) in the eye and saying: 'You lost that case. They're going to pull that tube, and you're going to have to watch your son die.' "

As it turned out, Florence Wendland watched her son die anyway, but not because a feeding tube was removed.

"I don't know if it could have been any harder than when he did pass away," she said.

Rose Wendland's attorney said his client will not appeal the decision to the U.S. Supreme Court.

* To reach Lodi Bureau Chief Jeff Hood, call 367-7427 or e-mail jhood@recordnet.com