A Life or Death Decision
Amicus briefs fly as groups line up on both sides of right-to-die case

By Mike McKee
The Recorder
July 21, 1999

If Robert Wendland only knew the fuss he's stirred up.  But, then again, maybe he does.  It's hard to tell, and that's the problem.

Brain-damaged since wrecking his truck on Sep(. 23,1993, the 47-year-old Stockton man exists in a twilight state. He has some limited motor functions but hasn't uttered a word in nearly six years. How much awareness he has is hotly debated.

In his silence, family members and complete strangers have fought at home and in the courts about whether the former motor parts salesman - who never put his wishes in writing - would rather be dead than hooked to a machine for life. And now a broader audience is weighing in.

Just last week, the last of five amicus curiae briefs was filed in a Sacramento appeal court by groups with strong opinions on Wendland's right to die or right to live.  Two back Rose Wendland, who wants to unhook her husband's feeding tubes based on a pre-accident conversation in which he expressed no desire to be kept alive artificially.  Three support Wendland's mother and one of his sisters, who think such an action is murder,

All five briefs, though, make it clear that the appeal court's decision could have tsunami-sized repercussions. Not only does the case have an impact on the rights of the disabled, the amici argue, but it also will determine whether court-appointed conservators have absolute authority in making life-and-death decisions.

Furthermore, no California court has ever authorized termination of life support in a situation like Wendland's - involving someone who is semiconscious and neither terminally ill nor in a persistent vegetative state.

"This case has society-wide significance," Oakland attorney Wesley Smith wrote for one pro-life group, "testing as it does the moral stature of our civilization."

In re Conservatorship of Robert Wendland, CO29439, landed in the Third District Court of Appeal after San Joaquin County Superior Court Judge Bob McNatt in December 1997 denied Rose Wendland's request to terminate life support.  He found that she had not proved by "clear and convincing evidence" that her husband would have preferred death.  That conclusion puzzled many because McNatt also ruled that she had acted, as the law requires, in good faith based on valid medical advice.  Rose's in-Iaws had argued otherwise.

Those points are being attacked vociferously on appeal by the separate attorneys representing Rose and Robert Wendland.  California Probate Code §2355, they insist, gives conservators - such as Rose - complete authority to make all medical decisions and doesn't require any evidentiary standard, let alone one as stringent as that set by McNatt.

"Once the conservator is in place, she is granted exclusive authority to make medical decisions," wrote San Francisco attorney James Braden, who represents Robert's interests.  "The exercise of that type of authority neither requires judicial pre-approval nor could it plausibly be subjected, as the trial court here thought, to the onerous '.clear and convincing' evidence standard.  When the Legislature uses 'exclusive' in a statute, it means precisely and literally that."

"Always imposing medical treatment on the disabled is just as wrong as always denying them treatment," San Francisco lawyer Lawrence Nelson, who represents Rose, wrote independently.  "An individualized decision should be made on the merits of each case -and this is exactly the wisdom of the legal process created by §2355 and by the courts of this state."

DEJA VU?

The current appeal isn't the first time the Third District has taken a look at the Wendland case.  On September 11, 1996, the court approved a separate lawyer for Wendland, over the objections of Rose.

"Because Robert's very life is at stake," the court held in Wendland v. Superior Court of San Joaquin County, 49 Cal.App.4th 44, "he is entitled to counsel to represent his interests, whatever those interests might be."

At the same time, Justices Richard Sims III, Robert Puglia and Vance Raye took Judge McNatt to task for calling the issues "simple" and hinted that they might not be favorable toward Rose's plan to terminate her husband's life.

Raye was especially pointed.  He noted in a concurrence - written "to emphasize the complexity of the life-and-death issues underlying this litigation" - that Robert's appointed counsel should not take the court's "silence" on the merits of the case as agreement with McNatt that simple issues were at stake.

He also stated that withdrawing water and nutrition from a permanently unconscious patient "does not have the same consequences it would have for a person [like Robert] with even limited cognitive functions."

Even worse for Rose's goal, Raye said in a footnote that the constitutional right to withdraw treatment "arguably. ..cannot be exercised" by a surrogate decision maker.

If the justices build on those remarks when they discuss the merits of the current case, it could be bad news for Robert's lawyer, Braden, and Rose's lawyer, Nelson.

Indeed, Nelson admits "concern" about Raye's comments, but says he and Braden believe federal and state case law and statutes prove the judge wrong.

"There is plenty of law out there that says the incapacitated simply cannot lose certain fundamental rights, and certainly bodily invasion and a right to refuse treatment is considered fundamental," he said. "Now, to be sure, Mr. Wendland can't exercise his own wishes because he can no longer do that, but that's why our Legislature has seen fit to transfer that power and, we would argue, transferring that right to the conservator under §2355 of the Probate Code."

Braden's and Nelson's positions were backed wholeheartedly by three powerful groups -the California Medical Association, which filed its own amicus brief, and the Los Angeles County medical and bar associations' Joint Committee on Biomedical Ethics and the L.A. bar's Bioethics Committee, which filed a joint brief.

The L.A. groups point out that Rose's goal Is supported by two 1988 appeal court rulings -Conservatorship of Drabick, 200 Cal.App.3d 185, and Conservatorship of Morrison, 206 Cal.App.3d 304.  "Both," Terri Keville, a partner in L.A.'s Manatt, Phelps & Phillips, wrote, "held that conservators could consent to withdrawal of feeding tubes from their conservatees who. like Robert here, had no hope of 'return[ing] to cognitive and sapient life.' "

The CMA, offering a broader perspective, cautioned that upholding McNatt's ruling would clog the courts with end-of-life disputes because doctors won't be willing to make the legal determination about what constitutes clear and convincing evidence.

"Health care providers, fearful of potential liability, will certainly refuse to act without prior court approval in all these cases," CMA lawyer Alice Mead wrote.  "Families will be forced to bear the emotional burdens, delay and expense of litigation, and already-full court dockets will be further stretched."

The opposing side argues that the case law in Drabick and Morrison is irrelevant because they were factually different, dealing with people who were comatose and who all parties agreed had no cognition.

To illustrate that Wendland is far from unconscious or non-cognitive, Janie Hickok Siess - who represents Wendland's mother, Florence, and one sister, Rebekah Vinson - listed several things he can do physically. Among them, she said, he can operate a wheelchair with his left hand or foot, throw and catch a ball, and pick up colored pegs on command.

State probate codes weren't fashioned for such situations, Siess said.

"Nothing in the record," she wrote, "suggests that the Legislature considered, deliberated upon or ultimately intended to include withholding life-sustaining treatment such as nutrition and hydration within the statutory scheme of §2355."

Siess, an associate in Stockton's Brown, Hall, Shore & McKinley, also noted that McNatt relied, in part, on Lillian F. v. Superior Court, 160 Cal.App.3d 314, a 1984 appeal court ruling that said clear and convincing evidence is the proper standard of proof for involuntary medical treatment because of the high stakes involved.

"Inarguably, an erroneous decision would result in a final and irrevocable deprivation of Robert's fundamental right to life, causing him to suffer grievous and permanent loss," Siess wrote.  "Thus, the trial court correctly ruled that when the conservator's proposed decision to withdraw food and fluids from a conscious but incompetent patient is challenged, the burden must shift to the conservator to present clear and convincing evidence of the correctness of her decision."

SLIPPERY SLOPE

Siess was backed by the Ethics and Advocacy Task Force of the Nursing Home Action Group, the Coalition of Concerned Medical Professionals, and Not Dead Yet, a nationwide, grass-roots disability rights organization that has participated as amicus in cases before the U.S. Supreme Court.

Not Dead Yet's lawyers  -  Max Lapertosa and Stephen Gold of the Public Interest Law Center of Philadelphia -   argued in their brief that the Americans with Disabilities Act prohibits Rose Wendland from withdrawing life support.

"Mrs. Wendland bases her decision to remove Mr. Wendland's treatment on the fact that he is disabled and on her prejudices about the experience of disability," they wrote.   "[But] the ADA bars Mrs. Wendland in her role as conservator from ordering the removal of Mr. Wendland's treatment on the basis of her quality-of-life assessments of his disabilities. ... A claim that 'the patient would not want to live like this,' without real evidence of the patient's views, more likely disguises animus and furthers prejudice."

Oakland lawyer Smith, writing for the Coalition of Concerned Medical Professionals, and Steubenville, Ohio, lawyer Rita Marker, writing for the nursing home group, take that view a step further by invoking the slippery slope argument - that letting conservators cut off life support could lead to widespread mercy killings.  Smith even calls it "medical cleansing," in an obvious play on the term "ethnic cleansing."

"Indeed," Smith wrote, "it is not an exaggeration to state that the decision made by this court could be the difference between helpless, cognitively disabled people continuing to live, or being made to die by having their food and fluids withheld."

He also argued that state probate codes gave McNatt the power - which he exercised - to approve Rose Wendland as a conservator, and to limit her authority by prohibiting her from depriving her husband of nutrition and hydration.

"That is precisely the type of order contemplated by the statute when it specifically gave this discretionary power to "trial courts," Smith wrote.  "This common-sense policy permits courts to tailor conservatorships to protect conservatees based on individual circumstances."

AMICI MISSION

Oral argument in the case hasn't been set yet, and it's unlikely that amici lawyers will participate when it is.  But they hope their written input will have some impact.

"When you are serving as an amicus, you are freer to explain the ramifications of the policy issues," CMA's Mead said last week.  "We are able to give the court a more detached view. ... The amicus has an obligation to look at the broader picture."

Diane Coleman, the Not Yet Dead founder, concurs, but said Friday that her Forest Park, Illinois-based group hopes the court recognizes that the Wendland case is about pushing the envelope "a little further about who you can kill."

"Our organization is an organization of people with disabilities, and we are, as an advocacy group, saying that we are going to fight back," she said.  "We will not yield to this [killing] mentality and I hope the court will listen to the voices of the disability community."

The case's outcome could come down to the definition of cognition.  While Wendland's mother and sister may take any evidence that their son and brother is aware of It; is his situation as a sign he could snap awake at anytime, says Rose's lawyer, Nelson, they are wrong.

"It is not that he just cannot walk, talk or go to the bathroom by himself," Nelson wrote.  "The man who was husband to Rose, the father to Kerrie, Katie and Robbie, the man who had plans, dreams, ideas and favorite activities like boating on the Delta - he is gone forever. Respondents' wish to the contrary just does not comport with reality."

Associate editor Mike McKees e-mail If address is mmckee@therecordel:com
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