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Friday, February 25, 2000

Wife Prevails In Right-to-Die Case, Court Says

By Mike McKee


......... R E L A T E D  L I N K S .........

+ Arguing Over Life and Death  

S etting a precedent sure to shock right-to-life forces, a California appeal court has ruled that a Stockton woman has the right to withhold life-sustaining treatment from her disabled husband even though he isn't terminally ill or in a vegetative state.

But, the court held Thursday, she first must prove by clear and convincing evidence that her decision was made in good faith on sound medical advice and took into consideration her husband's best interests and prior expressed wishes.

The ruling by Sacramento's Third District Court of Appeal had been eagerly awaited because no California appeal court had ever ruled that conservators -- who make medical decisions for mentally incapacitated patients -- could terminate life support for someone in a state of semi-consciousness.

"While we recognize a distinction has been made between sapience and the vegetative state," Justice Richard Sims wrote in a 71-page opinion, "we do not believe that any non-vegetative state of a conservatee removes from the conservator the statutory authority to make a decision to withhold life-sustaining treatment."

Sims was joined in Conservatorship of the Person of Robert Wendland, C029439, by Justices Arthur Scotland and Fred Morrison. The quickness of the ruling caught many by surprise because the court had heard oral arguments only eight days earlier.

The case involves attempts by Rose Wendland to terminate life support for her 48-year-old husband, Robert, who has been hospitalized since wrecking a truck north of Stockton in September 1993. While able to perform some limited motor functions, Robert Wendland isn't expected to regain complete cognition and is kept alive by a feeding tube.

Rose had argued that her hard-drinking husband made it clear in talks before the accident that he would never want to be kept alive by machine. But Robert Wendland's mother, Florence, and a sister, Rebekah Vinson, disagreed and went to court to block Rose.

In December 1997, San Joaquin County Superior Court Judge Bobby McNatt ruled against Rose, saying that although she acted in good faith and upon valid medical advice -- as required by Probate Code 2355 -- she hadn't proved by clear and convincing evidence that he would have preferred death.

On appeal, San Francisco lawyer Lawrence Nelson, who represented Rose, and San Francisco attorney James Braden, representing Robert's interests, argued that Probate Code 2355 gave Rose Wendland, as conservator, exclusive authority to make life-and-death decisions on Robert's behalf. Once McNatt had approved her as conservator, they said, his job was done.

The appeal court agreed with Nelson and Braden in Thursday's ruling, citing prior authority in Conservatorship of Drabick, 200 Cal.App.3d 185, a 1988 ruling from the Sixth District Court of Appeal that upheld a conservator's authority. That case involved someone in a persistent vegetative state, but the Third District agreed with Nelson and Braden that the ruling could be interpreted more broadly.

"It applies," they ruled, "to a conservator's decision to withhold life-sustaining nutrition/hydration from a conservatee who has been adjudicated to lack capacity to make his own decision, but who is not terminally ill or [in a persistent vegetative state]."

The justices also ruled that McNatt erred in requiring Rose Wendland to prove by clear and convincing evidence that her husband would have preferred death. Instead, they said, she must meet that high standard in proving that she acted in good faith and on valid medical advice in seeking to terminate life support.

The grave consequences of a conservator's decision in such a case, they said, makes a high burden of proof mandatory.

The case was remanded to McNatt to give Robert's mother and sister an opportunity to prove that Rose had not met her burden.

Janie Hickok Siess, the associate at Stockton's Brown, Hall, Shore & McKinley who represented the mother and sister, had also raised constitutional issues, claiming that treatment termination would violate Robert's fundamental right to life. But the court swept that argument aside, pointing to the California Constitution's privacy provision that allows someone to determine the scope of his or her own medical treatment.

"The constitutional right to life -- under either the California Constitution or the Fourteenth Amendment to the United States Constitution -- is not infringed by allowing a surrogate to exercise a person's right to refuse medical treatment," the court held.

"Thus, even assuming there is 'state action,' we agree with the Wisconsin Supreme Court, which said ... that a guardian's withdrawal of life-sustaining treatment from a ward does not constitute a deprivation of life; rather it allows the disease to take its natural course."

Nelson couldn't be reached for comment Thursday and Siess declined comment because she hadn't seen the ruling.

Braden said he generally liked the ruling, calling it well-reasoned and well-researched.

But he took exception to the court's holding that Rose Wendland needs to show by clear and convincing evidence that she has met her requirements as a conservator, and the holding's remand on that topic. Rose has already proved at trial and in a subsequent hearing, he said, that she acted in good faith and on sound medical advice.

"This issue has been decided now twice by the [trial court] judge," he said. "A remand here is not a small thing."