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August 28, 2001

Wendlandís wife petitions high court to clarify ruling

By Julie Z. Giese/News-Sentinel staff writer

Attorneys for the widow of Robert Wendland are petitioning California Supreme Court to clarify details on when conservators can remove life support.

The stateís highest court unanimously ruled earlier this month that conservators need clear and convincing evidence to remove life support from an incapacitated patient who didnít leave written directions.

The petition for rehearing, which was filed Friday, requests the court give direction to doctors and patients in making end-of-life decisions by modifying its ruling.

ďItís fine tuning that could have a big impact,Ē said Jon Eisenberg, an Oakland attorney representing a handful of health care organizations and bioethicists.

Eisenberg, who filed the petition on behalf of two other attorneys, said the court has stated the level of evidence needed to pull the plug on life support in Wendlandís situation.

But it didnít address the proof needed to meet the lower standard of preponderance of evidence if a person designated a health care agent or wrote an advance health care directive, he said.

Some health care providers are unsettled on whether statements Wendland made to his wife, Rose, would be enough to withhold life-sustaining treatments had he left directions, Eisenberg said.

Wendland, 49, died July 17 of bronchial pneumonia at Lodi Memorial Hospital before the state Supreme Court ruled in favor of his mother, Florence Wendland, who fought to keep him alive.

The former Stockton man suffered severe brain damage following a 1993 auto accident where he reportedly drove drunk and rolled his pickup truck on an Interstate 5 onramp outside of Lodi.

He was left incapacitated from the crash, unable to speak, feed or care for himself. He spent eight years on life support.

Rose Wendland fought a six-year legal battle to remove life support from her husband, claiming he twice told her he didnít want to live like a vegetable. But Robert Wendland never put his medical care wishes in writing.

State law allows conservators to remove feeding and hydration tubes for patients who are unconscious or in a permanent vegetative state.

Lodi attorney Janie Hickok Siess, who represented Florence Wendland, called the petition a last-ditched effort to salvage the case.

ďItís extremely unlikely the court would touch that because thatís not the case that was brought before the court,Ē Siess said.

However, Eisenberg argues the clarification would benefit many patients and doctors.

He also contends the state Supreme Court improperly reformed the state probate code which gave conservators exclusive authority to make health care decisions based on considering the incapacitated loved oneís best interest and medical advice.

The court ignored the intent of the state Legislature in Assembly Bill 891, which amended the probate code last year, according to Eisenberg.

But Siess said the higher standard is needed to protect patients from dying of starvation and dehydration without sufficient proof they would refuse such medical care.

ďIt doesnít matter what the Legislature wanted if it violates the constitutional standard,Ē she said.

The petition also seeks to have the courtís opinion omit references that Robert Wendland attempted to communicate, saying it was contrary to what the Superior Court found.

Siess said she plans to file an answer to the petition with the state Supreme Court by Friday, opposing any changes to the opinion.

The court could decide whether it will rehear the new arguments in the case in two weeks.

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