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New twist in cases over right to die
Patient is in twilight state, not in a coma

Harriet Chiang, Chronicle Legal Affairs Writer
  Wednesday, May 30, 2001

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Eight years after a horrific car accident, Robert Wendland spends his days in a Lodi hospital, unable to speak or walk, a shadow of his former self.

His eyes are open, and he is conscious, but the accident left the former salesman severely brain-damaged and paralyzed on his right side. At one point, he could toss a ball and maneuver his wheelchair. But now he just sits as nurses and visitors drift in and out.

Wendland's wife and three children want to remove the tube that provides him with life-sustaining food and water. But his mother and sister insist that he continue to receive treatment.

What began as a bitter family fight has escalated into a major right-to-die case with national repercussions. The two sides will argue their case today before the California Supreme Court, which must decide one of the most agonizing legal issues: whether to allow the removal of life-sustaining treatment for those who some doctors describe as "minimally conscious."

What distinguishes this case is that Wendland, 49, is not in a coma or a persistent vegetative state. Instead, he lingers in a kind of twilight, conscious but incompetent to make his own decisions. Legal experts say a ruling in this gray area of the law could affect stroke victims, Alzheimer's patients and hundreds of thousands of others suffering from degenerative mental diseases.

"It's profoundly important to every one of us," said Jon Eisenberg, an Oakland lawyer who is representing the California Medical Association as well as several other medical groups and 43 bioethicists. "We are all going to grow old," he said, "and many of us are going to have to make end-of-life decisions for ourselves or for our family members."

As far as Rose Wendland is concerned, her husband died Sept. 29, 1993. But because of the legal battle, "there's no peace for him yet," she said. He doesn't smile, she said, and there is no sign that he can think or respond. "This man is in living hell."

His mother disagrees. Florence Wendland believes that she is doing the right thing by fighting to keep him alive. "Would you want someone to put your son to death?" said the 79-year-old mother of eight, who sings and reads to her son during weekly visits. "I enjoy his company. I'm sure he enjoys mine."

QUINLAN CASE REPERCUSSIONS

The right to die became a national issue in 1976 when a New Jersey court allowed the parents of coma patient Karen Ann Quinlan to order the removal of a respirator that allowed her to breathe.

Since then, courts -- including those in California -- have allowed life- sustaining treatments for patients in a coma-like state to be stopped.

Lawmakers have also recognized that those who are competent have a fundamental right to refuse medical treatment. In the 1980s, state courts allowed quadriplegic Elizabeth Bouvia to refuse a feeding tube.

In 1993, the California Supreme Court, ruling in the case of a quadriplegic prisoner, held unanimously that mentally competent adults have a fundamental right to refuse life-saving medical treatment.

But the Wendland case looks at the critical question of when a guardian can withdraw medical treatment for a patient who is conscious but no longer able to make his own decisions.

Generally, judges have been reluctant to decide these intensely private issues. "I suspect that decisions like this get made fairly frequently without anybody ever going to court," said Alan Meisel, who teaches bioethics at the University of Pittsburgh and wrote "The Right to Die."

For Rose Wendland, the decision came almost two years after her husband's accident. He had been in a coma for 16 months following the rollover crash of his pickup after he had made a U-turn on an on-ramp. His blood alcohol level was twice the legal limit. Eventually, he regained consciousness and could draw the letter "R" and other limited acts, but only after painful and exhausting physical therapy, she said.

In 1995, Rose Wendland asked that her husband's feeding tube, which had come out several times, not be reinserted. The hospital's ethics committee agreed to her request.

But Wendland's mother received an anonymous call from a hospital staff member, telling her of the plan. Florence Wendland went to court and obtained a restraining order preventing her son's wife from taking any action.

JUDGE UNPERSUADED

Rose Wendland said that her husband had told her before the accident that he would not want to be kept alive under the circumstances he now faced. Three months before the crash, her father had died after his life support machine was turned off at the family's request. Five days before his accident, she said, Robert Wendland told her, "Don't let that happen to me. Just let me go."

His brother testified that Robert Wendland had made similar comments to him.

But a trial judge ruled in favor of Wendland's mother, saying that his wife had failed to prove by "clear and convincing evidence" -- a high standard of proof -- that Robert would have wanted to die.

A state appeals court overturned that decision in February 2000, ruling that the law requires only that Rose Wendland, as her husband's conservator, act in good faith.

In similar cases, courts in Michigan and Wisconsin have refused to allow the guardians of neurologically damaged patients to withdraw life-sustaining treatment. "In these cases, the courts want a higher level of certainty that this really was what the patient wanted," Meisel said.

But those states had no laws governing the rights of conservators at the time.

In their appeal to the California Supreme Court, Florence and her daughter Rebekah Vinson are challenging a California law that specifically gives conservators the authority to make medical decisions for a patient as long as they act in good faith based upon medical advice.

CALIFORNIA LAW CHANGED

The Legislature amended the law effective July 1, 2000, requiring the conservator to follow any clear wishes of the patient.

The mother and sister say that the law leaves mentally disabled people at the mercy of conservators, and they warn of a "slippery slope" if the high court allows Rose Wendland to withdraw her husband's feeding tube.

"We're talking about a surrogate making a decision that literally results in the death of someone else," said Janie Hickok Siess, Florence Wendland's attorney. Several advocacy groups for the mentally disabled have filed briefs in support of the mother and daughter.

But Rose Wendland's attorneys, backed by bioethics and medical groups, say that she met the burden of proof and is fulfilling her husband's wishes.

"There's nothing left of the man," said her attorney Lawrence Nelson. "It's a tragic case."

E-mail Harriet Chiang at hchiang@sfchronicle.com.


 
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