Originally Published Friday, September 28, 2001
To reach reporter Linda Hughes-Kirchubel, phone 546-8297 or e-mail lkirch@recordnet.comT

Wendland decision will stand

State Supreme Court declines reconsideration

By Linda Hughes-Kirchubel

Record Staff Writer

The state's highest court has refused to reconsider its August ruling in the case of the late Robert Wendland, a Lodi man left seriously brain injured after a drunken-driving accident.

The Supreme Court denied a request Wednesday from Wendland's wife, Rose, to reconsider its Aug. 9 ruling in which it forbade removal of feeding and hydration tubes from an incompetent yet conscious conservatee unless the conservator proves by "clear and convincing" evidence that he or she is acting on the conservatee's wishes.

Robert Wendland died July 17, more than seven years after failing to negotiate an onramp from Highway 12 to Interstate 5. At the time of the accident, his blood-alcohol level was more than twice the legal limit. He sustained traumatic brain injuries that left him comatose for months.

Even after Wendland emerged from the coma, he required assistance with every facet of living. A feeding and hydration tube kept him alive. Though he was conscious, it was unclear how much he comprehended.

For more than five years, Rose Wendland -- her husband's court-appointed conservator -- and his mother, Florence Wendland, battled over whether he should live or die. Rose Wendland insisted her husband had no desire to live in such a state and went to court to win the right to disconnect his feeding and hydration tube. Florence Wendland fought her daughter-in-law for the right to keep her son alive.

The battle reached the California Supreme Court, with Rose Wendland's attorney, Lawrence Nelson, and Robert Wendland's court-appointed attorney, James Braden, arguing conservators should be held to a lower evidentiary standard than "clear and convincing" evidence. Attorney Janie Hickok Siess, who represented Florence Wendland, insisted the state's probate code was unconstitutional as written, because it violated Robert Wendland's right to life.

The court's Aug. 9 ruling was a clear victory for Florence Wendland, and Siess said Thursday that the news the Supreme Court had denied Rose Wendland's request to reconsider made her day.

"It means a person like Robert who has a conservator but is conscious cannot have their feeding tube removed unless there is a showing through clear and convincing evidence that that is what they wanted or that that would be consistent with their best interests," she said.

Wednesday's ruling also means the case "is officially over in this state," Siess said.

"I was confident that they would deny this petition, and that means that their 6-0 decision will now be final," she said.

Nelson called the court's opinion "a bad piece of legal work," predicting that it would be "roundly trashed" by bioethicists and analysts in the medical profession.

"It's an embarrassment to this court," Nelson said. "It's to their discredit that they're not astute enough to recognize that it's a bad piece of judicial writing; it's discouraging that our state Supreme Court is as obtuse as this opinion shows."

Nelson said the opinion, in some portions, "makes it sound like Robert Wendland could make his own decisions."

"They make it sound like he was able to communicate in a clear and direct way," Nelson said. "That is inconsistent with the trial court finding that Robert Wendland was incompetent. They have to follow the finding of facts by the trial court ... as long as it's backed by substantial evidence."

Nelson said he would not ask the U.S. Supreme Court to review the case, but Braden said that had Robert Wendland still been alive, he "absolutely" would have pursued it to a "higher human court."

"The (California) Supreme Court was wrong," Braden said. "I think God actually called Robert home because that's the right result here."