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Robert's wishes

Court struggles to set the parameters of the right to die.

(Published June 2, 2001)

It isn't hard to understand why California's Supreme Court justices are treading carefully toward the wrenching and portentious decision they must make in the case of Robert Wendland.

Eight years ago, a car crash left the Stockton man, now 49, in a "minimally conscious state" with severe brain damage and no hope of recovery. He cannot walk, talk, eat or go to the bathroom.

His wife, Rose, and brother say he once told them he never wanted to be kept alive on life support as a "vegetable"; Rose and his three children want his feeding tube removed so he can die. But Wendland's mother and sister have fought them in court for six years, saying that because he can respond at times to simple commands he is not "vegetative." Within 90 days, the high court must decide how to honor the wishes of a man who can no longer communicate those wishes.

But if Wendland had left a "living will" or "advanced directive" clearly stating his written wishes, the court might not be in this uncomfortable position, and his family might not have been as tortured by the aftermath of his accident. But fewer than one in five Americans have left such instructions, leaving emotionally fraught and ethically delicate decisions to their families and doctors, and sometimes to the courts.

All that's needed is a handwritten note outlining the author's wishes about the circumstances under which he would prefer not to be resuscitated, or when he would like to be removed from life support. The will should be signed and dated by the author and two witnesses, at least one of whom is not an heir. Alternately, patients undergoing surgery or other procedures can simply state their wishes to their doctor, who will note them in his chart, making them just as enforceable as a written will.

Ethicists caution, however, that while living wills may avert confusion and heartache for many, they aren't fail-safe, for they can't foresee every circumstance. Wendland, for instance, talked about not wanting to be vegetative, but didn't specify whether minimal consciousness was acceptable.

California law allows conservators -- in this case, Rose Wendland -- to act in accordance with what they believe to be the patient's wishes. The court will now struggle to find the standard of evidence it should apply before allowing the tube to be removed. But had Wendland's wishes been spelled out more explicitly in advance, the justices and, more important, his family, might not find themselves in so unenviable a position.

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