Civil Rights
Aug. 7, 2001
Right to Die
Robert Wendland died of pneumonia recently at age 49, eight years after sustaining profound brain damage in an automobile accident. For most of those years he had lingered in a twilight state between coma and consciousness, kept alive by surgically implanted feeding tubes, while the courts debated his fate. We now await a ruling by the California Supreme Court in Conservatorship of Wendland , S087265, to ensure that health care providers and the courts will honor end-of-life wishes such as the one Wendland had expressed before his accident.
Jon B. Eisenberg
Email: jon@eisenbergappeals.com
Jon is a retired appellate attorney and the author of California Practice Guide: Civil Appeals and Writs.
Robert Wendland died of pneumonia recently at age 49, eight years after sustaining profound brain damage in an automobile accident. For most of those years he had lingered in a twilight state between coma and consciousness, kept alive by surgically implanted feeding tubes, while the courts debated his fate. We now await a ruling by the California Supreme Court in Conservatorship of Wendland, S087265, to ensure that health care providers and the courts will honor end-of-life wishes such as the one Wendland had expressed before his accident.
Wendland's condition was tragic. He could perform simple tasks such as grasping and releasing a ball, but he was unable to speak, eat, swallow, control his bladder or bowels or communicate with other people. He did not seem to recognize his wife and three children. He spent most of his time in bed at Lodi Memorial Hospital, gazing into space, motionless except for occasionally scratching at his face or choking on secretions that had accumulated in his tracheostomy.
Wendland's accident reduced him to a condition that many people would refer to as being a "vegetable." Technically, however, his condition fell short of what doctors call a "persistent vegetative state" because he was to some extent conscious and could interact minimally with his environment.
Wendland's wife, Rose, his brother, Michael Wendland, and his three children believed, based on conversations with him before the accident, that he would not want to live under such circumstances. Two years after the accident, Rose Wendland asked the hospital to remove his feeding tube, which would have resulted in his death by dehydration within days. His doctor, the hospital's ethics committee and the county patient ombudsman supported her decision.
But Robert Wendland's mother, Florence Wendland, wanted him kept alive. Backed and funded by an advocacy group called the "Life Legal Defense Foundation," she went all the way to the California Supreme Court, where the justices heard oral argument May 30.
When Robert Wendland died of natural causes July 17, the court had not yet issued its decision. Now, the court can either dismiss the case on the ground that it is moot or issue an opinion anyway in order to provide guidance for future cases.
Rose Wendland and Florence Wendland have both urged the court to issue an opinion. So has Not Dead Yet, an Illinois disability-rights group that fears the judiciary is headed down a slippery slope toward widespread "involuntary euthanasia" of disabled persons. Florence Wendland's backers have cleverly exploited this theme in the courts and the news media by positioning Wendland as a disability-rights case instead of a right-to-die case.
This is clever but wrong. The true issue in Wendland is, How much proof of a patient's stated end-of-life wishes is needed to have those wished followed?
Although Robert Wendland, like most people, left no written directive (also known as a living will), he said plenty to his wife and his brother about not wanting to be kept alive artificially. Rose Wendland testified that after her father died upon termination of life support, Robert Wendland told her, "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." He also told her, "If that ever happened to me, you know what my feelings are. Don't let that happen to me. Just let me go." Michael Wendland testified that Robert Wendland told him he would never want to be a "vegetable," by which he meant "he did not want to be kept alive with tubes."
Is this evidence sufficient to support Rose Wendland's decision? That's the issue. The Wendland case is not about forced euthanasia but about choice, the choice to refuse or receive life-sustaining medical treatment.
The right to refuse medical treatment, including artificial nutrition and hydration, is guaranteed by the U.S. and California constitutions. It also is prescribed by the California Probate Code, which authorizes an incompetent patient's conservator to exercise that right on the patient's behalf. Rose Wendland, as Robert Wendland's conservator, wanted to exercise his right to refuse artificial nutrition and hydration, based on his statements to her and Michael Wendland.
Florence Wendland's backers claimed, however, that the evidence of Robert Wendland's end-of-life wishes was not strong enough to support Rose Wendland's decision. They want the California Supreme Court to impose a heightened standard of proof - clear and convincing evidence - to determine the validity of a conservator's end-of-life decision, instead of the normal standard of proof for civil cases - preponderance of the evidence.
In an amicus curiae brief I filed as counsel for six health care organizations and 43 individual bioethicists, I argued that a requirement of clear and convincing evidence would prevent many conservators from exercising the right to refuse medical treatment because most people - because of tradition, culture, religion, discomfort or fear - don't confront life-and-death issues with the lawyerlike precision of clear and convincing evidence. Robert Wendland's pre-accident comments to his wife and brother are typical of how most of us speak about the prospect of having our lives sustained by ventilators, feeding tubes and the like - in plain, everyday language. Thus, if the law demands an unrealistically high level of conversational precision, such dialogue too often will be deprived of its intended effect, sometimes with tragic consequences.
I think that is precisely what Florence Wendland's zealous supporters want - to deprive you and me of end-of-life choice. They know that most people, no matter what they say in their own words about their end-of-life wishes, will never speak the legalese required to meet the clear-and-convincing-evidence standard.
Advocacy groups, doctors and judges should not be dictating people's end-of-life choices, whether directly or by imposing an impossibly high standard of proof. People should get what is guaranteed to them by law, constitutionally and statutorily: the right to refuse unwanted medical treatment or to have a beloved make that choice if they cannot.
Former California Supreme Court Justice Armand Arabian said it best in Thor v. Superior Court, 5 Cal.4th 725 (1993), which upheld a quadriplegic prisoner's right to refuse artificial nutrition and hydration: "Clearly, many individuals with profound disabilities courageously confront and overcome daunting physical challenges to lead productive and satisfying lives, reflecting the vast potential and determination of the human spirit ... Nevertheless, this fact does not dictate a similar choice for others."
The Not Dead Yet disability-rights group is correct that persons with disabilities should be protected from forced euthanasia. But that's not what the Wendland case is about. It's about choice. Robert Wendland's choice - and yours, and mine.
Jon B. Eisenberg, of-counsel in the Oakland office of Horvitz & Levy, submitted an amicus curiae brief in Wendland.
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