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
I f
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 th at
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."
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