By Mike McKee
The Recorder
July 19, 2001

 

Rose Wendland Photo: Clifford Oto

After fighting in court for seven years, Robert Wendland's feuding family is in agreement about one thing now that he's dead: The life-and-death issues raised by his high-profile case should still be resolved by the California Supreme Court.

On Wednesday, one day after the 49-year-old man died, attorneys representing Wendland and his wife, Rose, asked the court not to dismiss as moot the case that could determine how much authority conservators like Rose have in terminating life support.

Wendland, who had been in a semi-conscious state since shortly after a truck wreck near Stockton in 1993, died of pneumonia at 2:40 p.m. Tuesday in Lodi Memorial Hospital. But in court documents filed Wednesday, San Francisco solo practitioner James Braden, who represents Wendland's interests, said an opinion by the Supreme Court, which heard oral arguments in May, "might provide useful guidance for those who may find themselves involved in similar cases in the future."

Agreeing was Lodi lawyer Janie Hickok Siess, who represents Wendland's mother, Florence, in opposing a bid by Rose to terminate Wendland's life support. Florence Wendland had not, however, filed a formal statement with the court.

"This is a case of overriding public importance," Siess said Wednesday. "This is a case where there could be other families like this one, where there are other conservatees at risk."

Both sides made their views known even though there's no assurance that the court will pay them heed. The justices have the discretion to end the litigation by declaring the case moot or going forward with an opinion based on their determination that the underlying facts raise issues of public importance that are capable of repetition.

Conservatorship of the Person of Robert Wendland, S087265, could very well meet the test.

Wendland was not comatose. He had some cognitive abilities and managed some limited interaction with those around him. But under current California law, conservators, such as Rose Wendland, can remove life support only when someone is terminally ill or in a persistent vegetative state.

Wendland had left no advance directives, but Rose, who is represented by San Francisco solo Lawrence Nelson, claims her husband had told her shortly before his accident that he would never want to be kept alive by machines.

Sacramento's Third District Court of Appeal ruled last year that Rose could terminate her husband's life support, but only if she proved by clear and convincing evidence that her decision was made in good faith and in her husband's best interests. At oral arguments in May, the Supreme Court seemed to be leaning in the same direction.

Not Dead Yet, a disability-rights group based in Forest Park, Ill., joined the opposing parties Wednesday in calling for a ruling.

"If the case is brushed from the docket as moot," Boston lawyer Amy Hasbrouck said in a Not Dead Yet statement, "people under guardianship will continue to be at grave risk should their intellectual capacity not measure up, and their speech capacity fails them and should their 'loved' ones not love them as persons with disabilities."

San Francisco lawyer Braden said Wednesday that his client's death could make the court's decision easier, if it decides to render an opinion.

"Now the only issue is the law and any decision by this court will not cause anyone's death," he said. "That increases the chances that they will make the right decision on the law."

On Tuesday, the Third District had refused to hear an emergency petition by Lodi lawyer Siess that asked for the immediate release of medical information about Wendland, restoration of visiting rights for Wendland's sister, Rebekah Vinson, and the preservation of Wendland's remains, presumably for an autopsy. Siess filed the same request with the state Supreme Court late Tuesday.

Opposing lawyers - who had said they would gladly reinstate visiting rights for Vinson and provide medical information as long as it wasn't relayed to third parties - said they believe the petition is likely moot now, with the possible exception of the disposition of Wendland's remains. They oppose the preservation request, saying it is premature and that Rose Wendland, as conservator, has the right and duty to inter her husband's remains.

Braden and Jon Eisenberg, who represents six health care groups and 43 individual bioethicists as amici curiae backing Rose Wendland, speculated Wednesday that Siess wants an autopsy in a bid to later pursue a wrongful death suit against Rose, her husband's doctors and others.

"It wouldn't surprise me," Braden said. "I have a feeling they will never stop pursuing this woman."

Siess didn't discuss a possible wrongful death suit Wednesday, but Eisenberg, of counsel in the Oakland office of Encino's Horvitz & Levy, said Florence Wendland couldn't easily prevail if one is filed.

"The Probate Code," he said, "requires Rose to act in good faith based on sound medical advice, which she did, so there is no basis for a wrongful death action."

Any attempt to file such a suit, Eisenberg added, "would be just more appalling conduct."

Emotions have been tense throughout the long court battle, with Wendland's wife, three children and a brother on one side and the rest of the family on the other. The bitterness was evident in comments Rose Wendland made upon her husband's death.

In a statement, she said her husband had been trapped in a life he wouldn't have wanted because of litigation "pursued by relatives he did not love and with whom he did not share any kind of a meaningful personal relationship.

"I think it is tragic, ridiculous and ultimately disgusting," she added, "that the law permitted these strangers to interfere in a decision that naturally and morally belongs to his close family."

Siess called Rose's statements about Wendland's mother and sisters being estranged a "flat-out lie," noting that Florence was at the hospital nearly every day, while Rose and her kids hadn't visited Wendland for years.

"I am sick and tired of Rose, through her attorney, referring to my clients as the estranged family members," Siess said. "That is not true. Rebekah was out in the parking lot and was deprived of the chance to see her brother before he died."

It isn't clear if or when the high court might make a decision about continuing with the case, but under its own 90-day rule the court has until late August to render an opinion. There is still a chance, however, that the case will have to be reargued because of Justice Stanley Mosk's death.