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Right-to-die case back in national focus

Media attracted to struggle of Wendland family

By Linda Hughes-Kirchubel

Record Staff Writer

It began in the sleepy city of Lodi, this historic, life-or-death battle.

It may end in Washington, D.C., in the halls of the highest court in the land.

For now it's the Los Angeles Times, CNN and Time magazine that line up to present the case of Robert Wendland, a Lodi man whose wife and mother are battling over whether to remove him from life support and let him die or keep his feeding and hydration tube in place and keep him alive.

While Rose Wendland wants her husband's feeding tube removed, Florence Wendland, Robert's mother, is fighting to keep it in place. Both say they are acting in Wendland's best interests. Both say the case could land in the U.S. Supreme Court if California's highest court rules against them.

Now its landing in major publications and television shows.

"All of a sudden the L.A. Times showed up, and then I started getting calls from all over the place," said Janie Hickok Seiss, attorney for Florence Wendland. "And Florence appeared on ("Good Morning America") on the fourth of January. "The Today Show" has called. And then CNN ... and FOX wants to do another story."

The life-and-death case of Robert Wendland hit the national media once before, in 1995. Back then it was "Dateline," an NBC's news magazine, that featured the case. On Monday, Rose and Florence Wendland will join their attorneys to discuss the case on CNN's legal-issues show "Burden of Proof".

"It's the way the story is being pitched, mother vs. wife, the interfamily conflict," said James Braden, Rose Wendland's attorney. "I think the media is attracted to that. But the deeper story is obviously a very badly damaged man who doesn't have much life in him, and his wife is trying to do what she thinks he would want."

So is his mother, Seiss said.

In September 1993, Braden said, Rose Wendland confronted her husband and begged him to stop his habit of driving while drinking.

Barely a week later, with his blood-alcohol level at more than twice the legal limit, Wendland drove his pickup truck off a freeway onramp at Highway 12. He wasn't wearing a seat belt when the car overturned; the force tossed him nearly 40 feet from the vehicle.

The injuries Wendland sustained as he struck graveled ground brought him to the brink of death.

But they didn't push him over.

For more than a year he languished in a coma. When he awakened, it was to a strange state of consciousness that is key to the case. Braden calls him "minimally conscious." Seiss balks at the term.

"Robert is not semiconscious and Robert is not minimally conscious," she said. "Those are terms that are made up by the other side. They are completely inaccurate. Robert is conscious. He is interactive and has cognitive function. And so we are about to starve and dehydrate to death a conscious, disabled person."

Not so fast, Braden said.

"When I use the term minimally conscious ... it means very little consciousness," he said. "That is why the state of California will no longer pay for any therapy, because he isn't benefiting."

Rose Wendland has said she struggled over whether to pull the feeding tube. He'd made comments to her expressing his wish to "die with dignity," Braden said, but left no living will spelling out his wishes.

On July 31, 1995, Rose Wendland made arrangements to end her husband's life the way she thought he would want to die.

An anonymous phone call from the nursing staff alerted Florence Wendland to Rose Wendland's intentions. Wendland's mother filed for a temporary restraining order against her daughter-in-law, and the legal battle began.

The first trial ended in 1997, when Superior Court Judge Bob McNatt ruled in Florence Wendland's favor.

"It's my position that Judge McNatt's ruling was correct," Seiss said. "He said Rose did not meet her burden to show by clear and convincing evidence that it would be in Robert's best interest to die by dehydration and starvation, in part because she did not present sufficient evidence supporting her contention that Robert expressed a desire to die."

Rose Wendland appealed to a higher court, which produced a mixed ruling.

In a victory for Rose Wendland, the state's 3rd District Court of Appeal ruled last year that McNatt erred in his ruling and should have considered only whether Rose Wendland had considered her husband's best interests and met other statutory requirements of the Probate Code when she made her decision to remove the feeding tube.

"In our case, we have a statute that says a conservator has the legal authority to make this decision," Braden said. "Rose is following a statute on the books."

At the same time, the appellate court ruled that the U.S. Constitution, which takes precedence over California code, requires the higher standard of "clear and convincing evidence."

The California Supreme Court's eventual ruling should clarify the section of the Probate Code that governs how conservators make decisions for those whose lives they control.

Both sides predict the case could go to the U.S. Supreme Court.

"If for some reason the California Supreme Court does not rule in Florence's favor, we will certainly ask the U.S Supreme Court to hear it," Seiss said. "We are not going to back off."

Braden is more cautious.

"It would really depend on how the (state) court ruled," he said. "Certainly if there's a federal constitutional issue there, we would look very closely at whether or not we would seek U.S. Supreme Court review."

Braden predicted the current media attention will die down, only to flare up again as the time for California Supreme Court oral arguments draw near. In the meantime, his client will continue her daily routine as a small-business woman who cares for children in her home.

She rarely visits Robert Wendland now.

"It's a heartbreak to her every time she goes," he said. "He does not respond to her visits."

In the meantime, Seiss said, Robert smiles and pants and responds to his mother, now 78, who continues to visit him regularly.

"Florence goes out at least three days a week on the bus and spends several hours with Robert," Seiss said. "Life goes on."

* To reach reporter Linda Hughes-Kirchubel, phone 546-8297 or e-mail lkirch@recordnet.com