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Oakland Tribune August 10, 2001

Court limits right to die

State case may set national precedent

By Josh Richman

A family can't let an incapacitated but conscious person die without clear and convincing evidence that's what he or she wants and needs, the California Supreme Court ruled 6-0 Thursday.

Robert Wendland of Stockton, for whom this case was filed, died of pneumonia last month at age 49. But the court still used the case -- involving a man who wasn't in the persistent vegetative state often central to right-to-die cases, and who hadn't left a written record of his wishes -- to set a precedent with national implications.

"California has done exactly what it had to do to protect the disabled," said attorney Janie Hickok Siess, who represented Florence Wendland in her battle to keep her son alive.

"The California Supreme Court has now had the courage to join an elite group of supreme courts which have looked at these issues and drawn a line in the sand, saying 'We're not going into that zone ... where you can start disposing of disabled people.'"

Just as she cited similar Michigan and Wisconsin court rulings to make her case, Siess said, attorneys across the nation now can cite this ruling.

But some saw Thursday's ruling as an erosion, not a protection, of patients' rights.

"This decision is contrary to the philosophy of bioethics and the practical experience of health care providers, and that's a shame," said Jon Eisenberg, an Oakland attorney for health care groups and bioethicists who supported Rose Wendland's right to choose death for her husband.

"The good news from this decision is that if you've executed an advance written directive or formally appointed a surrogate decision maker, your wishes will be honored," he said.

"The bad news is that a majority of people don't do that, and the courts are going to hold them to a level of proof so high that it will be very, very difficult to satisfy."

Wendland, a former autoparts salesman, was profoundly hurt in a 1993 drunken driving accident, leaving him somewhat conscious but unable to talk, walk, control his bowels or feed himself. His wife and mother disagreed on whether he could communicate meaningfully or even recognize his family, and so began their legal battle in 1995.

Rose said her husband had told her before his accident he'd never want to live like a vegetable. She asked the courts to let her withdraw his feeding and water tubes to let him die. Florence fought to keep her son alive.

A San Joaquin County trial court ruled for Florence, finding Rose hadn't proved by clear and convincing evidence either that Robert would have wanted this or that it was in his best interests. The California Court of Appeal reversed that ruling, finding the lower court should have deferred to Rose's decision.

Taken to its literal extreme, Justice Kathryn Werdegar wrote in Thursday's opinion, state law would let a conservator withdraw care from anyone judged incompetent to make their own health care decisions -- regardless of how impaired that person was, based simply on the conservator's good-faith word that dying was in the person's best interests due to poor quality of life.

The court doesn't believe lawmakers intended Probate Code Section 2355 "to confer power so unlimited," Werdegar wrote. "Under these circumstances, we may properly construe the statute to require proof by clear and convincing evidence to avoid grave injury to the fundamental rights of conscious but incompetent conservatees."

Rose Wendland offered only her own judgment of her husband's quality of life, and legally insufficient evidence that he would have wished to die, so the trial court's ruling was correct, Werdegar concluded.

However, the "clear and convincing" evidence standard is too strict for most decisions made under this law, Werdegar wrote, so Thursday's ruling "affects only a narrow class of persons: conscious conservatees who have not left formal directions for health care and whose conservators propose to withhold life-sustaining treatment for the purpose of causing their conservatees' deaths."

The ruling doesn't affect people who are permanently unconscious, including those in comas or persistent vegetative states; people who leave formal health care directions; or decisions which aren't life-or-death.

"Except for losing Robert, I feel great now -- this is what we were aiming for," Florence Wendland said Thursday. "The precedent is now going to be that nobody can have done to them would have been done to him, no more tube-pulling."

Rose Wendland was in tears Thursday. "What kind of hope is there for any of us now?" she asked. "How much clear and convincing evidence can a person ever have, more than Robert had?"

"Thank God Robert passed already. It's a sad day for all of us -- not only for our family but for everyone."

Her attorney, Lawrence J. Nelson, said the ruling means "thousands of Californians could become trapped, doomed, in a life they don't want, ... stuck in a nursing home or hospital for decades, ... even if your whole family agrees you didn't want to live like that."

Before his accident, "Mr. Wendland clearly said, 'I don't want to be a vegetable,'" Nelson said. "He wasn't in a vegetative state, but he was pretty damned close. How specific do you have to be? What she (Rose) was saying was he didn't want to live like this, with a life as shrunken as it was."

The California Medical Association, which supported Rose Wendland, expressed disappointment Thursday and urged people to make out written advance directives immediately. Studies show fewer than one in five people now do so.

American Civil Liberties Union attorney Margaret Crosby, who also wrote a brief on Rose Wendland's behalf, said the ruling wasn't a total loss.

"It's an important decision in the court's recognition that there is a fundamental constitutional right to control treatment decisions, including the right to die. This is the first time the California Supreme Court has established that principle," she said. "But the experience to date tells us many people express their wishes the way Robert Wendland did, and from now on, they may find themselves trapped by a technology they don't want."

Others were elated.

"Today the Supreme Court of California affirmed Robert's personhood and with it, all of ours," said Carol Cleigh, board member of the Illinois-based disabled rights advocacy group Not Dead Yet, which had filed a brief supporting Florence Wendland. "Though this does not take away the pain of knowing there are people who want us dead, it is comforting to know that there are also powerful people who will work to stop them."

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