Metropolitan News-Enterprise


Friday, August 10, 2001


Page 1


Supreme Court Clarifies Guidelines on Removing Life Support


By ROBERT GREENE, Staff Writer


Family members may not end life support for their barely-conscious loved one based solely on conversations in which the stricken person was remembered to have said he would not want to live like a vegetable, the state Supreme Court ruled yesterday.

Absent a living will or similar written instructions, the court said, Robert Wendland could not be allowed to die by removing his feeding tubes.

The case was deemed so important for its precedent that the high court issued the opinion despite Wendland’s death last month. The 49-year-old San Joaquin County man died of pneumonia after eight years of living in consciousness but with little if any cognitive ability.

He was seriously injured in an accident in 1993 when he rolled his truck when driving under the influence of alcohol.

Wendland became the subject of a fight between his wife, who was appointed his conservator and urged that he be allowed to die, and his mother and sister, who went to court to block the removal of the feeding tubes.

Two Statements

The wife, Rose Wendland, and his brother and daughter recalled two statements in which Robert Wendland said that he would not want to be kept alive by artificial means. One came when Robert Wendland watched as his father-in-law died of gangrene. When discussion whether to turn of the respirator, Rose Wendland testified, her husband said:

“I would never want to live like that, and I wouldn’t want my children to see me like that and look at the hurt you’re going through as an adult seeing your father like that.”

After his father-in-law’s death, Robert Wendland developed a drinking problem and his brother told him that he would one day be in a terrible accident. The brother testified that Wendland replied:

“If that ever happened to me, you know what my feelings are. Don’t let that happen to me. Just let me go. Leave me alone.”

Writing for the 6-0 court, Justice Kathryn Werdegar said that establishing Wendland’s wish to be allowed to die were he conscious but lacking in cognitive function requires more than statements recalled from conversations with his family.

Evidence Unclear

“These two conversations do not establish by clear and convincing evidence that the conservatee would desire to have his life-sustaining treatment terminated under the circumstances in which he now finds himself,” Werdegar wrote.

The decision reinstates the ruling of the San Joaquin Superior Court, which heard the matter in Stockton in 1995, and overturns the Third District Court of Appeal. Superior Court Judge Bobby McNatt ruled that Rose Wendland had not proved by clear and convincing evidence that her husband would have wanted to die, or that withholding treatment was in his best interest.

The appeals court ruled that the proper test was whether Rose Wendland was acting in good faith based on the advice of her husband’s doctors and other medical authorities.

Prior to his failing physical condition in the last several months, Wendland reportedly could answer basic questions requiring yes-or-no answers and responded to simple commands. Doctors called him minimally conscious, although they said it was impossible to gauge his level of awareness.

Werdegar noted that he used a “yes/no board” to answer a series of questions put to him by a doctor, saying “yes” when asked if he had pain, if he wanted to be left alone, if he wanted to sit in a chair and if he was angry, and “no” when asked if he wanted more therapy, if his legs or buttocks hurt, if he wanted to go back to bed or if his anger was directed at anyone. When asked if he wanted to die, he did not answer.

Declined to Answer

“We add to the trial court’s assessment only that Rose acknowledged Robert did not describe the precise condition in which he later found himself and that, while experts dispute the consistency and accuracy of Robert’s responses to questions, it is difficult to ignore the fact that he declined to answer the question ‘Do you want to die?’ while giving facially plausible ‘yes’ or ‘no’ answers to a variety of other questions about his wishes,” Werdegar noted.

The justice cautioned that the clear-and-convincing standard does not apply to all health care decisions by conservators, and does not affect patients who are permanently unconscious, in comas, or in a persistent vegetative state.

“Only the decision to withdraw life-sustaining treatment, because of its effect on a conscious conservatee’s fundamental rights, justifies imposing that high standard of proof,” Werdegar said. “Therefore, our decision today affects only a narrow class of persons: conscious conservatees who have not left formal directions for health care and whose conservators propose top withhold life-sustaining treatment for the purpose of causing their conservatees’ deaths.”

The case is Wendland v. Wendland, 01 S.O.S. 4020.


Copyright 2001, Metropolitan News Company