False Compassion
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An Editorial by Bobby Schindler, brother of Terri Schindler-Schiavo
Originally Published in the Washington Times, February 18, 2008
This month the sad case of Lauren Richardson made headlines. The similarities between her situation and my sister Terri Schiavo’s are striking and deeply disturbing. Lauren suffered a profound brain injury in 2006, leaving her dependent on others for her care. Like Terri, she is not hooked up to machines, is not comatose and is unquestionably very much alive.
As in Terri’s case, a judge, based on hearsay evidence that this is Lauren’s wish, has decided to err on the side of death and starve and dehydrate this young woman until she dies. The judge is also convinced that Lauren is in the often wrongly diagnosed (and offensively named) condition known as “persistent vegetative state” (PVS). Unfortunately, some in the media have already begun their campaign to justify Lauren’s needless and heartless dehydration.For example, recently on the Fox News Channel program “Hannity & Colmes,” co-host Alan Colmes incorrectly referred to this brain-injured girl as being “brain dead” — a tactic often used by dehydration supporters in the mainstream media to dehumanize Terri throughout her ordeal.
As was the case with my sister, you will soon undoubtedly see the media drumbeat begin: “Just allow this woman to die,” in order to somehow convince the general public that it is “right” to “end this poor woman’s suffering.” (Never mind the statement’s inherent contradiction: if she is truly unconscious, she is not suffering.) However, Lauren is not dying, does not have a terminal disease and her brain injury is not killing her. Just like the estimated tens of thousands of persons in similar conditions, Lauren is only being sustained by the same thing we all need to live — food and water. And there is a loving father willing and wanting to care for his daughter.
Don’t expect the media to remind people of the growing number of persons diagnosed as being in “vegetative” conditions — people who doctors predicted would never regain consciousness — who have inexplicably awakened. A number of these patients regained awareness after being in a “PVS” or similar conditions far longer than Terri was. For example, Terry Wallis regained awareness after 19 years, Sarah Scantlin after 20 years and Patricia White Bull after 16 years.
And then you have stories like that of 36-year-old Jesse Ramirez, whose feeding tube was removed by his wife only 10 days after he suffered a severe head trauma in an automobile accident. At that time, doctors said that he would most likely end up living in a vegetativestate. Fortunately his parents questioned the doctors, found an attorney and were able to get a judge to have his feeding tube reinserted. Days later Jesse began to make noticeable improvement. Unbelievably, he recently walked out of a rehabilitation facility on his own two legs.
Haleigh Poutre’s story is disturbingly similar. After she was brutally beaten by her adoptive parents, doctors in Massachusetts gave her a “no hope for recovery” diagnosis and recommended that Haleigh’s feeding be stopped so that she would die. The Massachusetts Supreme Court actually agreed to dehydrate this helpless little girl. But just before the deed was to be done, Haleigh awakened and is now in rehabilitation.
Make no mistake: thousands of conscious and unconscious persons die by deliberate dehydration every year. We only hear of the cases in which there is family disagreement. Believe me when I tell you that death by dehydration is something that no family member should ever have to witness. It is cruel and barbaric and takes days and often weeks to play itself out, torturing not only the patient but all who love them as well.
I watched my own sister anguish through 13 days without food or water and there are no words that can properly describe this inhumanity. At the end, blood appeared in her eyes because her tissues were cracking from a loss of moisture.
Tragically, killing the cognitively disabled by taking away their food and water is about as common in our nation as it is for our politicians to abandon this issue. And for reasons I still struggle to understand, deliberately dehydrating persons with brain injuries really doesn’t seem to catch the ire of most Americans, certainly not those in the media. If you did the same thing to a dog, you would rightly join Michael Vick in jail for animal abuse.
Persons with disabilities, no matter how serious, are just that — persons.They should be treated as our most precious treasures reflecting who we should be as a nation — not as damaged goods to be discarded when they outlive their “usefulness” — which, sadly, says more about our growing moral bankruptcy than it does about their intrinsic value or human worth.
Bobby works for the Terri Schindler Schiavo Foundation, Center for Health Care Ethics in St. Petersburg, Fla. The foundation is dedicated to promoting the culture of life and embracing true compassion by opposing the practice of euthanasia.
Technorati Tags Lauren Richardson, Terri Schindler-Schiavo
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Above: Robert Wendland’s mother, Florence, was joined at a July 28, 2001, memorial service for her son by four of her daughters, as well as other family members, friends, and community members who supported her in her fight to save her son from being starved and dehydrated to death. Pictured behind Florence are (from left) Lisa, Debbie, Adophne, and Cynthia.
The Underlying Facts of Conservatorship of Wendland
On a fateful September 1993, evening, Robert Wendland, a married 42-year-old father of three residing in Stockton, California, had been drinking when he decided to drive his pick-up to nearby Lodi. En route, the vehicle flipped off the on-ramp to Interstate 5 and he was thrown from it.
Robert’s decision changed not only his life and the lives of everyone who knew and loved him, but was the genesis of a controversial legal battle monitored internationally that spanned six years and two trips all the way to the California Supreme Court, with countless hours devoted by attorneys, judges, justices, health care providers, commentators, educators and others, as well as exorbitent legal, court and other fees and costs.
At the 1993 accident scene, Robert was found unresponsive by medical emergency personnel who transported him, unconscious, to San Joaquin General Hospital. He remained there until November of that year, when he was transferred to Lodi Memorial Hospital West’s Sub-Acute Unit, where he resided until his death in July 2001.
Robert remained comatose for approximately sixteen months. After he awoke, he became gradually more responsive to his environment and was provided various therapies (speech, physical). He continued to receive food and water through a feeding tube.
In early July 1995, Robert’s wife, Rose, and Robert’s treatment team agreed that Robert would participate in a three month program of intense therapies, designed to maximize his rehabilitative progress and abilities. Shortly thereafter, the jejunostomy tube through which Robert received food and fluids became dislodged, as it had on three previous occasions. Rose then determined that the feeding tube should not be reinserted, a decision that, if carried out, would have caused Robert’s death by dehydration.
Rose’s decision was presented to and scrutinized by a medical ethics committee assembled at Lodi Memorial Hospital.
Unfortunately, however, Florence Wendland, Robert’s mother, was not aware of Rose’s decision, nor was she informed that the Ethics Committee was convening. Florence and Robert’s other siblings were not given an opportunity to present their contrary views to the Ethics Committee, even though Florence and other members of Robert’s family were visiting him at Lodi Memorial Hospital on a regular basis, a fact of which Rose was fully aware.
Robert was not in a persistent vegetative state, comatose nor terminally ill, and no legal precedent supported its decision. Nonetheless, the Ethics Committee voted to allow Rose to order the removal of Robert’s feeding tube. Shockingly, the Hospital’s ombudsperson was not aware of Robert’s level of cognitive functioning — he was, for instance, able to operate a motorized wheelchair.
Were it not for an anonymous telephone call from a Lodi Memorial Hospital staff member, alerting Florence that Rose had directed Robert’s feeding tube to be removed thereby bringing about his death, Robert would have died in August 1995.
When Florence finally did learn of Robert’s fate, she immediately sought the intervention of the San Joaquin County Superior Court and obtained a Temporary Restraining Order on August 3, 1995, prohibiting the removal of Robert’s feeding tube, pending further proceedings.
Rose dramatically decreased the frequency of her contact with Robert such that by the time the case finally came to trial in late 1997, she admitted that her only visits with Robert coincided with her appearances at the hospital for meetings with Robert’s treatment team every four to six weeks. Robert’s children had stopped visiting their father altogether and, in fact, his oldest daughter, Katie, admitted that she had not seen her father perform any tasks “that impressed me.” On the day she testified, November 7, 1997, she learned for the first time that her father was able to propel a wheelchair with his foot and admitted under cross-examination that she wasn’t interested in Robert’s capabilities:
Q. Do you have any specific understanding of what things he is able to do?
A. No, and I don’t care. He’s not living the way he wants to live. So I don’t care if he pushes a wheelchair or he lifts a peg or whatever because it’s not going to change the whole scheme of things. He’s not living the way he wants to live.
In contrast, Florence visited with Robert three days each and every week, taking public transportation from her home in Stockton early in the morning and returning the same way late in the afternoon. She would spend the day pushing Robert in his wheelchair, singing and reading to him, attending activities with him in the Hospital’s multi-purpose room, etc.
The undisputed evidence and testimony introduced at trial by Rose and Robert’s own witnesses conclusively demonstrated that, following his injuries, Robert progressed substantially in his recovery, from total unconsciousness to the point that he could perform a number of neurologically complex tasks:
- Operating a manual wheelchair (using his left hand or foot) or an electric wheelchair with the use of a joystick;
- Throwing and catching a ball with his hand;
- Kicking and stopping a ball with his foot;
- Working in a standing frame during which time he viewed himself in a mirror and was able to balance and right himself (with cues) for short periods of time, reach for/grab thera-putty in response to cuing, etc.
- Operating an augmentative communication device to give “yes” or “no” responses to questions;
- Blinking with his eyes to respond to questions such as those listed above;
- Picking up brightly colored pegs or blocks and replacing them in a tray or handing them to a therapy assistant;
- Picking up specific numbers and handing them to a therapy assistant;
- Turning pages, drawing circles and writing the letter “R” with his left (nondominant) hand, sometimes without assistance;
- Responding to verbal requests that he open his mouth and hold it open to allow oral care and hygiene; and
- Responding to verbal commands directed toward behavior management.
From time to time, Robert would pick up his mother’s hand and kiss it. She recounted that he often became distraught when she told him that their visit was at an end, crying and becoming agitated. However, she calmed him by assuring him that she would return soon and praying with him.
At trial, Rose’s retained experts likened her husband to a “trained animal.” One bioethicist opined that Robert interacted with his environment less than “some animals that I have a close friendship with.”
The late Ronald Cranford., M.D., testified that “Robert should be allowed to die so the family can grieve.”
Florence secured a victory in the trial court in December 1997, but the battle was far from over. The case was appealed to the Third District Court of Appeals which rendered a decision in 2000 and argued before the California Supreme Court on May 30, 2001.
The Supreme Court issued its ruling in August 2001, affirming the trial court’s ruling in Florence’s favor by a 6-0 vote, despite the fact that Robert died in July 2001, with his mother at his bedside. Click here to read the Supreme Court’s decision.
What Would You Do?
This site exists specifically to educate and assist you in answering that question: If faced with making medical treatment decisions on behalf of a loved one, how would you proceed?
And more importantly, if you were to be catastrophically injured and could not make medical treatment decisions for yourself, what would you want done by your loved ones?
Have you prepared a living will or other written document providing instruction to your loved ones regarding your wishes? Have you discussed your wishes with your family and friends? Have you appointed, in writing, a surrogate decision-maker who will make decisions about your care and treatment in the event that you are unable to communicate your desires?
Robert Wendland’s legacy is a legacy of life because his life — and his status as a disabled person — were ultimately protected by the California courts.
His legacy is also the cautionary tale contained in these pages of the extreme toll that the fight over his life extracted from all involved in that battle. It was a battle that could easily have been avoided had Robert put his wishes and desires in writing prior to suffering the injuries that forever changed his life.
So if you take nothing else away from your visit to this site, at least heed this warning: Spare your loved ones! Deliberate upon and communicate your wishes now . . . while you still can.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Mother Wins Battle (2001)
MOTHER WINS BATTLE
Robert Wendland’s sisters, Debra Hofer, left, and Rebekah Vinson listen to their mother, Florence Wendland, seated, left, and Lodi attorney Janie Hickok Siess talk about Thursday’s California Supreme Court ruling.
Supreme Court rules relatives can’t end life support; Florence Wendland pleased
By Julie Z. Giese/News-Sentinel staff writer
The California Supreme Court on Thursday unanimously sided with the mother of the late Robert Wendland, who fought a six-year legal battle to keep her son on life support.
The Supreme Court ruled 6-0 that relatives can’t remove feeding and hydration tubes from a patient who is not in a persistent vegetative state or unconscious, but is otherwise incapacitated.
Wendland, who died last month from a bout with pneumonia, suffered severe brain damage following a 1993 auto accident. He spent eight years hooked up to feeding and hydration tubes at Lodi Memorial Hospital’s transitional care unit.
The 49-year-old Stockton man was left unable to speak, feed or care for himself, but wasn’t in a persistent vegetative state, doctors said.
His wife, Rose Wendland, had fought to remove his feeding tube, saying he had twice told her he would not want to live like a vegetable.
But Wendland’s mother, Florence Wendland, claimed he was responsive to some simple commands and she argued that life support should not be removed.
“I’m very happy to hear the news,” she said Thursday at a press conference. “All along I knew that it would be in Robert’s favor.”
The justices didn’t have to rule in the case after Wendland’s death, but they decided to clarify the dispute in the state probate code.
Florence Wendland, with her attorney and other relatives at the press conference, said the ruling is bittersweet following her son’s death, but that it sets precedent for others who might find themselves in a similar position.
“It shows that Robert didn’t die in vain,” she said.
Lodi attorney Janie Hickok Siess, who argued the case on Wendland’s mother behalf, echoed her sentiment.
“We’re just happy and grateful to the California Supreme Court,” said Siess, holding a copy of the court’s written opinion. “I’ve only had a chance to scan it, but from what I’ve read, it’s a total and complete victory.”
The legal battle began when Wendland’s wife and conservator wanted to remove his feeding tube in 1995.
Rose Wendland said she was following her husband’s wishes by directing a doctor to stop the treatment and allow him to die.
Robert Wendland never put his medical care wishes in writing in the form of an advance health care directive or living will. He reportedly told his wife months before the accident he didn’t want to live like a vegetable.
Wendland’s mother fought removing life support all the way to the state Supreme Court, saying he could respond to her voice, squeeze her hand and participate in some adaptedactivities.
Rose Wendland said Thursday she didn’t want to pull the plug, but was trying to honor her husband’s wishes.
“Thank God that he died. His pain would be even greater with the decision that was made,” she said. “It was Robert’s wishes to never be in the state that he was in.”
The mother of three said the family is still grieving Wendland’s death. “It’s a terrible decision,” she said of Thursday’s ruling. “It’s such an injustice.”
Rose Wendland said she’s undecided if she’ll continue the legal battle to the U.S. Supreme Court.
The justices decided that, in order to withdraw life-sustaining treatments, conservators must establish clear and convincing evidence that the patient would want to refuse such medical care.
They concluded Robert Wendland’s two conversations with his wife prior to the accident didn’t constitute the evidence needed to withdraw life support.
With the ruling, the high court affirmed San Joaquin County Superior Court Judge Bob McNatt’s decision that conservators needed to show the higher level of proof.
The decision also reversesthe state appellate court ruling that McNatt erred in requiring a higher standard than the conservator simply considering the conservatee’s best interest in good faith.
The Supreme Court also said it wasn’t setting a broad standard when conservators could pull the plug on incapacitated loved ones. Instead, the decision affects a small minority: Conscious patients who’ve left no formal health care directions and have conservators looking to withdraw life support with the intent of causing death.
A group of 43 medical ethicists had urged the court to abide by the wife’s wishes.
“The court has told us that, if you want to have a say in your end-of-life decision-making, you better put it in an advance, written directive,” said Jon B. Eisenberg, an attorney for the ethicists. “The problem here is: I don’t know how you do that in a manner that covers all of the possibilities.”
Others supported the decision, saying it will guard people from death by starvation and dehydration.
“This is really a wonderful decision that protects the most vulnerable,” said Rita Marker, an attorney and executive director of the International Task Force on Euthanasia and Assisted Suicide based in Steubenville, Ohio.
Marker said the decision makes it more challenging to pull the plug on incapacitated patients with severe mental retardation or brain damage from strokes or traffic accidents.
The Associated Press contributed to this report.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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State High Court Will Hear Wendland Case (2000)
State High Court Will Hear Wendland Case
By Nicole Casal, News-Sentinel staff writer
Lodi News-Sentinel
June 23, 2000
The California Supreme Court has agreed to hear a case involving a brain-damaged man who has been living at Lodi Memorial Hospital-West since 1993 when he crashed his truck near Lodi while driving drunk.
Now, seven years later, Robert Wendland is fed through a tube.
He can’t speak or walk, but is able to maneuver his wheelchair a little.
He spent 16 months in a coma after the accident which happened at the Highway 12 onramp to Interstate 5.
When Rose Wendland, his wife and conservator, decided to take him off life support in 1995, Robert Wendland’s mother and sister disagreed and filed a lawsuit.
The high-profile right-to-life case has been making its way through the courts for five years. It gained national attention as a segment on NBC’s “Dateline” program in 1997. Now, the decision as to who has the authority to preserve — or take — Robert Wendland’s life is up to a seven justices of the state’s high court who voted unanimously to hear the case.
“I’m obviously thrilled,” said Janie Hickok Siess, the attorney who filed the appeal for Robert Wendland’s mother, Florence Wendland.
She argues that it is unethical to allow a person to die by the means that Wendland would if his wife and the Lodi Memorial Hospital ethics panel had their way.
“If you pull out that tube, he will die from dehydration and starvation,” Siess said. “If you starve to death a conscious person, they feel pain.”
Had the California Supreme Court refused to hear the case, like it does 95 percent of the cases that are appealed to it, then Siess said she would have taken it to the U.S. Supreme Court.
No matter where it ends up, Jim Braden, the court appointed independent counsel for Robert Wendland, thinks Rose Wendland’s decision will stand, and her husband, he said, will be able to die with dignity.
Braden, who researched both sides of the case before deciding which position to take, is the second independent counsel to side with Rose Wendland.
He said that in the weeks before the accident, Wendland’s father-in-law was very ill, and was being kept alive by life support. It was at that time that the man told his wife and a relative that he didn’t ever want to become like that.
Braden added that on three occasions Wendland has pulled out the feeding tube which is surgically inserted into his stomach.
Braden and Rose Wendland’s attorney separately appealed Judge Bob McNatt’s preliminary decision in 1997 that would have kept Robert Wendland alive. However, the state’s Third District Court of Appeal ruled in February to send the case back to the San Joaquin County Superior Court. It was then that Siess appealed to the California Supreme Court. In accepting the case for review, the Supreme Court justices gave no indication when the appeal would be heard.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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State Supreme Court on Life Support and Right to Die: Put it in Writing (2001)
State Supreme Court on Life Support and Right to Die: Put it in Writing
Source: KTVU/Fox2 and Associated Press
August 9, 2001
SAN FRANCISCO — A family is not free to end life support for an incapacitated loved one simply because he had said he would not want to live like a vegetable, the California Supreme Court ruled Thursday in a closely watched right-to-die case.
The justices, ruling 6-0, noted that the incapacitated man in question was not hospitalized in a vegetative state but instead was conscious, albeit seesawing in a twilight state that provided him no means to care for himself following a 1993 auto accident.
The man’s wife, Rose Wendland of Stockton, sought to pull the feeding tubes that kept alive her husband, Robert. She said he had told her months before the accident that he never wanted to live like a vegetable.
“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,” Justice Kathryn Mickle Werdegar wrote.
The court cautioned, however, that it was not setting a broad standard when conservators could pull the plug on conservatees. Instead, its decision affects “only a narrow class of persons: conscious conservatees who have not left formal directions for health care and whose conservators propose to withhold life-sustaining treatment for the purpose of causing their conservatees’ deaths.
“But medical ethicists estimate that 15 percent of U.S. adults have drafted such wills or designated such powers to others. And now some ethicists are uncertain whether someone could ever be explicit enough to carry out their wishes to die.
The case began in 1995, when Rose Wendland thought she was carrying out her husband’s wishes when she directed doctors to pull his feeding tubes, two years after the accident left him in a near-vegetative state.
But the woman’s wishes were blocked and have been embroiled in the courts ever since, reigniting national debate over when loved ones can make such directives when no will or other written document verifies those wishes.
Robert Wendland died last month in a Lodi hospital from pneumonia, but the justices ruled on the case anyway to clarify unsettled law.
“The court has told us that, if you want to have a say in your end-of-life decision-making, you better put it in an advance, written directive,” said Jon B. Eisenberg, an Oakland attorney representing 43 medical ethicists who urged the court to abide by the wife’s wishes. “The problem here is: I don’t know how you do that in a manner that covers all of the possibilities.”
During oral arguments in the case in May, Justice Janice Rogers Brown alluded to the point Eisenberg has raised. Although she signed Thursday’s opinion, she said from the bench that, even had Robert documented his desire to die, there’s no way to accurately predict an exact medical condition for which somebody might want to pull the plug.
“How could you ever meet that?” she asked in open court.
Rose Wendland assailed the ruling, saying she only wanted to pull the plug to follow her husband’s desires.
“Thank God that he died. His pain would be even greater with the decision that was made,” she said. “It was Robert’s wishes to never be in the state that he was in.”
The state high court’s ruling came three decades after a New Jersey court said the family of Karen Ann Quinlan had the right to withdraw medical treatment to their comatose daughter, who was classified in a permanent vegetative state.
Wendland’s right-to-die case was not the first to come before California’s justices. In 1993, the state’s high court said mentally competent adults may refuse lifesaving medical treatment. That case came three years after the U.S. Supreme Court, ruling in a Missouri case, said there was a constitutional right to withdraw life-sustaining medical treatment, but left it up to the states to devise the legal framework.
An appeals court said Wendland’s statements to his wife, and doctors at a Lodi hospital agreeing with the decision, were all that was necessary to end the life of the father of three.
But Robert Wendland’s mother, Florence Wendland, fought removing life support and took her case to California’s highest court. She claimed her son was not a vegetable and therefore the feeding tubes should not be pulled because those were not his wishes. Doctors said Robert had some ability to think and to sometimes move in his hospital bed, but had no ability to communicate whether he wanted to live or die.
Janie Hickok Siess, the lawyer who fought removing the feeding tubes, did not return receive repeated phone calls.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Justices Deal Setback to Right-to-Die Movement (2001)
Justices Deal Setback to Right-to-Die Movement
Health: State court bans removal of life support from conscious patients whose wishes are not clear.
By MAURA DOLAN, Times Legal Affairs Writer
LA Times
August 10, 2001
SAN FRANCISCO — Family members may not withdraw feeding tubes from conscious but severely brain-damaged loved ones unless they clearly show that the patient would have wanted to die, the California Supreme Court held Thursday.
The unanimous ruling was a blow to the right-to-die movement and a defeat for the California Medical Assn. It will probably affect thousands of patients, including Alzheimer’s and stroke victims, who are conscious but unable to communicate their wishes. Tens of thousands of such patients linger in hospital beds nationwide.
Unless these patients have left specific written instructions or designated a surrogate decision maker, their legal conservators may not remove life-sustaining tubes without “clear and convincing” evidence that they would have wanted to die or that death would be in their best interest, the decision said. Life support still can be withdrawn from people who are unconscious–in a vegetative state or a coma–without clear evidence of their wishes. The decision affects those who retain consciousness but have little, if any, awareness of their environment.
Lawyers in the case said the ruling should encourage Californians to leave written instructions about their wishes or to appoint a surrogate to make decisions for them. Surveys now show that fewer than 20% of people take such precautions.
“The bad news is for the vast majority of people who haven’t done that, it is not going to be enough for them to have had informal oral conversations with their loved ones about their end-of-life wishes,” said attorney Jon B. Eisenberg, who represented six health care organizations and 43 bioethicists in the case.
Eisenberg said the decision also may make doctors feel vulnerable legally if they consent to a family’s wishes to discontinue life-sustaining treatment.
Susan Penney, a lawyer for the California Medical Assn., said the ruling “will result in a lot of futile medical treatment that in all probability the patient would not have wanted.”
For all the ruling’s impact, it will have none on the case argued before the high court. That’s because the subject of the case, Robert Wendland, died of pneumonia a few weeks after the court heard arguments in his case.
Lawyers for the litigants asked the Supreme Court to decide the case anyway to clarify the law for families in similar situations.
Wendland, 49, was severely brain-damaged in a vehicle accident in 1993 and could not talk, walk, eat or express his wishes. His wife, Rose Wendland, his children and his brother said Robert would not have wanted to be kept alive under such circumstances.
But Robert’s mother, Florence Wendland, 78, contended that Robert would have chosen life over death. Janie Hickok Siess, her lawyer, praised the ruling Thursday.
“It is going to save a lot of lives,” she said. “I just wish Robert were here for this.”
A generation ago, starting with the celebrated case of Karen Ann Quinlan, courts ruled that families could remove life support from patients who were comatose or otherwise permanently without consciousness.
Robert Wendland was different. He was considered minimally conscious, capable of responding to simple commands but unable to communicate. His wife said he was a “shell” of his former self.
A judge in Stockton ruled in 1995 that Rose Wendland, whom he appointed Robert’s legal conservator, could not pull his hydration and feeding tubes because she had failed to present clear and convincing evidence of Robert’s wishes. A Court of Appeal overturned that decision.
Justice Kathryn Mickle Werdegar, writing for the Supreme Court, said Thursday that the Stockton trial judge was correct. She noted that no other court in the nation has allowed conservators to remove feeding tubes from patients who were conscious.
The court’s opinion changed a 1999 California law that allowed conservators to withdraw feeding tubes from conscious patients if there was a preponderance of evidence that the patients would have wanted to die.
The court said such a standard of proof would violate a person’s constitutional right to life. The court also reasoned that the Legislature may not have been aware of the legal standard under the law.
Werdegar said it is possible that a conscious but uncommunicative patient “might perceive efforts to keep him alive as unwanted intrusion and the withdrawal of those efforts as welcome release.
“But the decision to treat is reversible,” she wrote. “The decision to withdraw treatment is not.”
Videotapes of Patient Viewed
Werdegar cited a new state law that allows patients to tell their doctors whom they would want to make decisions for them should they become incapacitated. The law, she said, “gives competent adults extremely broad power to direct all aspects of their health care in the event they become incapacitated.”
In Conservatorship of Robert Wendland, S087265, Rose Wendland “offered no basis” for terminating his life support “other than her own subjective judgment that the conservatee did not enjoy a satisfactory quality of life and legally insufficient evidence to the effect that he would have wished to die.”
Werdegar also noted that the court had reviewed videotapes of Robert Wendland.
“At his highest level of function between February and July 1995, Robert was able to do such things as throw and catch a ball, operate an electric wheelchair with assistance, turn pages, draw circles, draw an ‘R’ and perform two-step commands,” the court quoted from a medical report.
Lawrence J. Nelson, who represented Rose Wendland, said the court misunderstood her husband’s true condition. Wendland’s wife and children said he never recognized them after the accident, and one medical expert said it was doubtful that Wendland had the capacity to experience joy, Nelson said.
Nelson called the ruling a “retrograde decision” that is going “to force a lot of suffering on people.”
He particularly objected to the wording of the ruling, describing it as “insulting” to Rose Wendland and “hostile.”
“It is as if she hadn’t been married to this guy for over 20 years and lived with him and bore his children and knew him inside out,” said Nelson, a professor of philosophy at the University of Santa Clara who represented Rose Wendland free of charge.
Other analysts agreed with his assessment of the ruling’s tone.
“It’s a little bizarre,” said George Annas, chairman of the health and law department at Boston University School of Public Health and the author of a book on patient rights.
“They talk about his wife wanting to end his life rather than refusing treatment, and they seem to treat hydration and nutrition tubes as unique types of medical treatment,” Annas said.
James M. Braden, who represented Robert Wendland in the case, said the Legislature was trying to ease the legal hurdles in such termination-of-treatment cases and was aware of Robert Wendland’s situation when it passed the law in 1999.
“The impression is that the standard of proof was buried somewhere in a 280-page report that maybe the Legislature didn’t read,” said Braden, who was persuaded that Wendland would have wanted to die. “It was approved by the Legislature.”
University of Santa Clara law professor Gerald Uelmen, who has followed the case, said the court was “opting in favor of a higher threshold when life is at stake, and I frankly think that was appropriate.”
He said some families may be able to offer clear and convincing evidence based on statements their loved ones had made. “But it would have to be unambiguous and in a context that leaves little doubt as to intent,” he said.
USC law professor Erwin Chemerinsky said the ruling appeared “insensitive, to put it mildly, toward the wife.”
“This court doesn’t seem at all sympathetic to the claims that were involved here and went out of its way to interpret the statute restrictively,” he said.
Vincent Fortanasce, a neurologist who was an expert for Florence Wendland, said the court adopted the right standard for situations when a life is at stake.
“The impact of this decision is that a number of people who are disabled will not have to fear that HMOs and managed care will be able to make decisions about them without it clearly being in their best interest,” he said.
J. Clark Kelso, a McGeorge School of Law professor, said the high standard set by the court was correct because it applies to court-appointed conservators, not someone selected by the patient.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Man’s Widow Pursues Ruling (2001)
Man’s Widow Pursues Ruling
Law: Subject of right-to-die battle succumbed before court could act. Wife says she still wants decision that might help others.
MAURA DOLAN and BETTINA BOXALLS, Times Staff Writers
LA Times
July 19, 2001
STOCKTON — The wife of a man whose life became the subject of a closely watched right-to-die case asked the California Supreme Court on Wednesday to issue a ruling despite her husband’s death this week.
“I would hope that families wouldn’t have to go through what we went through,” Rose Wendland, Robert Wendland’s legal conservator, said at a news conference in Stockton. The California Supreme Court had been expected to decide in several weeks whether Rose Wendland could remove a feeding and hydration tube that kept her husband alive. The man’s mother adamantly opposed removing the tube.
With the tube still in place, Robert Wendland, 49, died Tuesday of pneumonia. Wendland suffered severe brain damage in a 1993 vehicle accident. He was conscious after the accident but could not communicate his wishes. No one knew for sure how much awareness he possessed.
His case, Conservatorship of Robert Wendland, S087265, has been widely watched because it could expand the ability of families to remove their loved ones from life support. Courts had allowed feeding tubes to be withdrawn only from patients who were in a vegetative state or terminally ill. Robert Wendland was neither.
Chief Justice Ronald M. George said Wednesday that the court has decided cases before that were technically moot “for the benefit of future parties.”
George said that unless the court issues an order to dismiss the case, a ruling will be made this summer. Because the case is pending, George could not provide more details.
Florence Wendland, Robert’s mother, who fought her daughter-in-law to keep her son alive, also wants the court to rule in the case, said Janie Hickok Siess, her lawyer.
The court heard arguments in May over what legal standard should be applied before relatives are permitted to remove life support from conscious patients who are not terminally ill. The court appeared to be siding with Robert’s mother in the dispute.
Rose Wendland said she wants the court to decide the case so that her many years of legal battles will not have been “in vain.”
The widow told reporters that she had just stepped out of Robert’s hospital room when he died at 2:40 p.m. at Lodi Memorial Hospital. His mother was with him.
Rose Wendland said she first learned her husband possibly had an infection on July 2. By July 8, one of his lungs had collapsed, and doctors tried unsuccessfully to drain it.
Doctors diagnosed him with pneumonia that day and suspected he also had contracted another unidentified infection, said Lawrence Nelson, Rose Wendland’s lawyer.
Doctors had given Robert antibiotics, but they were not effective, Nelson said. Rose Wendland “made the decision that aggressive treatment was not in his interest, and he was kept comfortable,” Nelson said.
Siess said Florence Wendland wants to see Robert’s medical records and has requested an autopsy. She said she wants to know what medication Robert was given and for how long.
“We are examining the circumstances of Robert’s death and will take whatever action we deem to be appropriate,” the mother’s lawyer said.
Doran Berg, a court-appointed lawyer for Robert Wendland, said Wednesday that she had offered to disclose his medical information to Florence Wendland last week on the condition that it not be shared with other parties. She said Siess never responded.
Rose Wendland, asked about her mother-in-law’s renewed demand for the medical records and an autopsy, told reporters: “As far as I am concerned, there will be no way. They have no right.”
She said she hoped the public had learned from her case to tell loved ones in writing what sort of medical treatment to pursue in case of severe incapacitation.
“Let your loved ones know where you stand,” she said. “And make them promise to honor your wishes.”
James Braden, another court-appointed attorney for Robert Wendland, said Wednesday he was optimistic that Rose Wendland will win the case if the Supreme Court decides to rule on it.
He said the court appeared confused about the level of Robert Wendland’s awareness. “The court did seem to be suggesting that he might be competent to answer questions, which is not true at all,” Braden said.
Braden said he expects the state law giving conservators wide authority will be upheld.
Rose Wendland and her three children contended that Robert was estranged from his mother and would not have wanted to live in his state. His mother said he would never choose to die.
Doctors considered him minimally conscious. He could not talk, walk, eat, drink or use a bathroom but could respond to a few simple commands.
His wife and three children said he had not recognized them since the accident or communicated with them in any manner. His mother said he would kiss her hand during her visits and sometimes cry.
Kerrie Wendland, 20, Robert’s middle child, said her family never had a relationship with her grandmother, and she was glad the conflict between the families was over.
“I am looking forward to peace and quiet,” she said.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Injured Man in Life Support Case Dies (2001)
Injured Man in Life Support Case Dies
Court: His wife and mother had battled for years over the right to end medical aid.
Los Angeles Times
July 18, 2001
By MAURA DOLAN, Times Legal Affairs Writer
SAN FRANCISCO — A severely disabled man who is the subject of a closely watched right-to-die case before the California Supreme Court died of pneumonia Tuesday, family lawyers and a hospital official said.
Robert Wendland, 49, who suffered brain damage in a car accident in 1993, died at 2:40 p.m. at Lodi Memorial Hospital, according to a hospital official.
Wendland’s mother, Florence Wendland, who had for years prevented his wife, Rose, from removing his feeding and hydration tube, was with him. Lawrence Nelson, an attorney for Wendland’s wife, said Wendland had been suffering from pneumonia for four to five weeks. Antibiotics were administered for a while, but they were not effective, Nelson said.
“He was given all appropriate medical treatment and care,” Nelson said.
Rose Wendland, 44, called her husband’s death “peaceful, dignified, and unmarred by pain or suffering.”
“Today his right to live free of tubes and medicines that could not really make him better has finally been made real,” she said in a statement. “But it had taken way too long for this to happen.”
The Wendland case has been watched nationally because it could expand the powers of conservators to allow loved ones to die. Previously, courts have permitted the removal of feeding tubes only from patients who were terminally ill or in a vegetative state.
Robert Wendland was different. Doctors had testified that he could have lived for decades as long as he survived lung and urinary tract infections that periodically plague patients in his condition.
During arguments in May, the California Supreme Court appeared reluctant to allow Rose Wendland to remove his feeding and hydration tube. The court was expected to issue its decision this summer.
The court now could either drop the case or rule on it anyway to clarify the law for families in similar circumstances.
At some point during his illness, Rose Wendland “made the decision that aggressive treatment was not in his interest, and he was kept comfortable,” Nelson said.
Robert Wendland died only minutes before a lawyer for his mother filed an emergency petition with the state high court asking that a doctor of her choice be allowed to examine him. Two lower courts had already rejected similar petitions.
Since 1995, Rose and Florence Wendland have been on opposing sides in courtroom battles over Robert. Rose, Robert’s legal conservator, and her three children said Robert would have wanted to die in his condition. Florence Wendland insisted that he would have opted for life.
Doctors considered Robert Wendland minimally conscious. He could not eat, drink, walk or talk, but he could respond to simple commands. He could not communicate his wishes, and no one knew for certain his level of awareness.
His wife and children said he never recognized them after the accident or communicated any ability to understand his surroundings. His mother said he would kiss her hand and cry during visits.
Janie Hickok Siess, who represents Wendland’s mother, complained that his wife had instructed hospital officials not to disclose Robert’s condition to his mother.
But Florence Wendland, 78, became alarmed when she noticed he was having trouble breathing during a visit. He became progressively worse, and she decided to go to court to ask that she be informed of his condition and that he be examined by a doctor of her choice.
A Superior Court in Stockton turned her down last week. Tuesday morning, the 3rd District Court of Appeal rejected her petition on the grounds that she should have filed it with the California Supreme Court.
Siess was in tears after learning that Wendland had died.
“I was filing papers with the court, but I wasn’t fast enough,” she said.
Siess said Florence Wendland described her son as breathing so hard during his last moments that his body shook. The lawyer also said Florence Wendland has requested an autopsy.
Florence Wendland had visited Robert regularly since his accident. Rose Wendland and her children had visited only sporadically since 1996.
Rose, her children and one of Robert’s brothers had long contended that Wendland had been estranged from his mother and wanted nothing to do with her.
In her statement Tuesday, Rose Wendland referred to her mother-in-law and other family members as “relatives he did not love and with whom he did not share any kind of meaningful personal relationship.”
“I think it is tragic, ridiculous and ultimately disgusting that the law permitted these strangers to interfere in a decision that naturally and morally belongs to his close family, the persons who knew him the best and lived with him when he was still with us: me, Katie, Kerrie and Robbie,” the Wendland children, she said.
She said she lost her husband and her children lost their father “that day in September 1993 when he was so terribly hurt in that accident.”
Though Wendland’s death was painful, Rose said she and her family were hurt “far more deeply” by the legal efforts to stop them from disconnecting her husband’s life-sustaining tube.
Rose Wendland praised Dr. Ronald Cranford, a Minnesota neurologist and bioethicist, for providing her with medical and moral advice during Robert’s final days. Cranford, a consultant in several high-profile right-to-die cases, did not personally treat Wendland but advised doctors on his care. His presence at the hospital enraged some pro-life activists, who fired off a statement Tuesday denouncing his involvement.
Nelson said Rose Wendland will decide soon whether to ask the California Supreme Court to drop the case or rule on it.
Siess said she expects that the court will issue a decision as a way to help others in similar situations. “We don’t know how many Robert Wendlands are out there,” she said.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Out of a Coma, Into a Twilight (2001)
Out of a Coma, Into a Twilight
Accident victim Robert Wendland is “minimally conscious.” His wife wants to let him die. His mother wants to keep him alive. Now he’s a test case before the state Supreme Court.
By MAURA DOLAN, LA Times Legal Affairs Writer
January 2, 2001
Robert Wendland, 48, can toss and catch a ball from a hospital gurney and follow simple commands. He cannot walk, talk, eat or communicate his wishes.is mother says he can kiss her hand. She is fighting to keep him alive.His wife says he “died seven years ago” in a car accident. What she calls the “shell” that remains of Robert Wendland cannot recognize her or their children. They have gone to court to let him die.
Five years ago, a court denied the family the right to remove the tube that gives Wendland food and water. The judge spoke of the anguish the case had caused him.
“I don’t know at this point,” said San Joaquin County Superior Court Judge Bob W. McNatt, “whether here today I am preserving Robert’s life or if I am sentencing him to life.”
Now, his fate has reached the California Supreme Court. And although he almost certainly does not know it, Robert Wendland has become a test case. What happens to him could determine the future for thousands of patients who linger in the twilight between consciousness and coma.
A generation ago, starting with the celebrated case of Karen Ann Quinlan, courts ruled that families could remove life support from patients who were comatose or otherwise permanently without consciousness.
Wendland’s case is different. He is clearly conscious–”minimally conscious” in medical jargon. He is aware of his environment, experiences pain and shows flashes of what appear to be anger and frustration. He can be trained to follow basic commands, but shows no signs of being able to comprehend more. He has no terminal illness, but virtually no chance of improvement. Medical experts say he could live in his current state for decades.
Rose Wendland insists that her husband of 22 years did not want to live like this. “That isn’t Robert,” she said of the man propped up in bed, staring at a television screen. “This is something we have allowed.”
A court decision allowing her to remove Robert’s life support would significantly widen the scope of laws that permit surrogates to terminate treatment for loved ones. Accident victims, stroke patients and perhaps many sufferers from advanced cases of Alzheimer’s disease could all be affected.
The legal issue in the case of Conservatorship of Robert Wendland, S086275, is as easy to state as it is hard to resolve.
Rose Wendland is Robert’s legal conservator. Under California law, that role gives her the right to decide to withhold medical treatment, including tube feeding, from him if she is acting in good faith based on medical advice and considers whatever wishes he may have expressed.
But his mother, Florence Wendland, contends that the law, if applied to a minimally conscious person, would be unconstitutional. The legal standard would make it easier to kill a disabled person than to sterilize one, she has argued.
Until now, courts across the nation have allowed surrogates to authorize the removal of feeding tubes only from people who were either terminally ill or unconscious. State high courts in Wisconsin and Michigan have refused to let families withdraw food and nutrition from non-terminal, conscious patients.
“Heretofore, we thought that the division between consciousness and unconsciousness was a bright line and we should not cross that line in considering withdrawal of care,” said Dr. Nancy Childs, a Texas neurologist whose specialty is rehabilitation of brain-injured patients. “This is expanding the boundaries.”
“This issue is huge,” said Oakland lawyer Jon Eisenberg, who represents bioethicists and others who support Rose’s right to make the decision. “It is going to touch nearly every one of us as we deal with our parents’ aging and our own aging in years to come.”
A Visit With Robert
Robert Wendland looks startlingly well for all his injuries. During a visit by his wife, his hair was neatly combed and his mustache trimmed. Sitting in his hospital room, he watched a ballgame on television.
Robert is paralyzed on his right side, and his right eye stares vacantly. But he appears to track with his left eye. His mouth is slightly slanted, like that of a stroke victim.
Rose, 43, is attractive, with dark hair pulled back from her face in a ponytail. She said hello to Robert, but he did not appear to recognize her. She turned to inspect his room.
His mother had left him a doll, a pink and blue bunny and a spotted bear. Rose was agitated. They demeaned Robert, she said.
A collection of caps hung on the wall. Robert hated to wear hats, Rose observed.
Robert scratched his head and mustache, chewed his lips and turned every once in a while to look at his visitors before returning his gaze to the television. His expression at times was infantile.
A nurse came in the room to reinsert his tracheotomy tube. “Robert,” she told him, “I am going to put this back in.” Robert sat still while she did. “Thank you,” the nurse told him.
The nurse, a pleasant, middle-aged woman, said Robert recognizes her. She has been his nurse for two years. She said he likes watching sports more than movies or cartoons.
“Cartoons!” Rose said, scornfully.
Robert never liked to watch sports when he was well, Rose said. He preferred news programs. Medical experts say Robert cannot comprehend what he is watching.
The nurse pointed out a toy–a box with openings for different shaped blocks. His mother plays it with him, the nurse said. “And he can do it.”
On his wall hangs a plaque that named Robert the hospital’s bowling champion in 1999. The bowling device at the hospital consists of a lightweight ball on a ramp. Robert pushes it.
Rose was not impressed. “A 1-year-old can do that,” she said of the toy with blocks. The fact that Robert could push a ball down a ramp also gave her no comfort.
“Am I happy that maybe he can recognize a nurse who has been here for two years and not his children? Not his wife? Now what does that mean? That his mom sits there playing those blocks with him? No. It doesn’t mean anything. It disgusts me, to tell you the truth.”
Rose no longer visits Robert regularly.
As for the couple’s three children, Katie, 22, Kerrie, 20, and Robert, 15, Rose said she has strived not to let “the tragedy” overwhelm their lives.
Her eldest daughter just graduated from Cal State Long Beach, which her other daughter attends. All three children have done well in school despite holding jobs to help their mother make ends meet. She has not encouraged them to visit their father. They rarely do.
An Accident 7 Years Ago
The family’s ordeal began with an accident on Sept. 29, 1993.
Robert had been drinking.
He had struggled with alcohol for years, quitting for months, even a year at a time, and then relapsing. “He didn’t drink every day, but when he did, he would drink until he passed out,” Rose said.
He had gone to pick up Rose’s sister from work late one evening. Rose was ill and had gone to bed early. Robert had a six-pack and a new Paul McCartney tape with him, and he wanted to drive around the country roads and listen to it.
He lost control of his truck when trying to make a U-turn, and it turned over. Rose’s sister survived, although she was badly injured. Robert was in a coma.
That first year, Rose and their children spent almost every day with Robert. The children did their homework in his room, and the family brought in a VCR and a small refrigerator.
Rose legally could have authorized the removal of his feeding tube while Robert was in a coma. But at the time, she said, she could not bear to let him die.
“I thought he was a strong man and would come back,” Rose said. “I didn’t realize he had no choice. His brain was gone.”
Seventeen months later, Robert emerged from the coma. Doctors told the family that he would be akin to a vegetable.
He pulled his feeding tube out several times, and the last time, Rose said, her eldest child begged her to reconsider before reinserting it.
“Mom, why are you doing this?” Rose remembers her daughter saying.
Three months before Robert’s accident, Rose had needed to decide whether to disconnect her father from life support. She and Robert had agreed her father should be allowed to die.
At that time, Rose said, Robert told her that she should never keep him alive on tubes.
After a night spent talking and crying, the family decided to let Robert die. Rose said she and her children believe they will see Robert in heaven.
“Why wouldn’t I wish that for Robert? That he could go to his maker?” she said.
But someone at the hospital tipped off Robert’s mother.
Florence Wendland and one of her daughters obtained a restraining order to prevent the withdrawal of the tube that gives Robert food and water.
Since then, the courts have assigned Robert his own attorneys, paid for by the state. A trial judge and an appellate court have ruled in the case, and a host of experts have weighed in.
So, too, have advocates for the right-to-die movement, supporting Robert’s wife, and the anti-abortion movement, supporting his mother.
The fight over Robert Wendland went to trial in Stockton in September 1995. Both his wife and brother testified that Robert said he would not want to be kept alive with tubes. But Judge McNatt decided against allowing removal of the feeding tube even before he heard Florence Wendland’s witnesses.
The judge praised Rose Wendland, calling her “one of the most selfless wives that anyone has ever seen.” But, he said, she had not proven by “clear and convincing evidence” that Robert would have wished to die.
His ruling was the “absolutely wrong decision for all the right reasons,” the judge said, adding that he took comfort in knowing that a higher court would probably review the case.
When that review came, a Court of Appeal in Sacramento overturned McNatt’s decision. The appeals panel said the judge had applied the wrong legal test. Rose Wendland did not have to prove that Robert would have wanted to die, the judges said. The law asks only whether she was acting in good faith based on medical advice.
In her appeal to the California Supreme Court, Florence Wendland argues that that legal test violates Robert’s constitutional right to life. For her part, Rose contends that Robert has a constitutional right to refuse medical treatment.
Several disability rights groups have lined up in support of Florence Wendland. They fear abusive conservators will shut off life support to patients who would have chosen to live.
On the other side are bioethicists, the California Medical Assn., several hospitals, including a group representing 65 Catholic hospitals and 40 nursing facilities, health associations, and the American Civil Liberties Union.
If the California Supreme Court requires “clear and convincing” evidence that a patient would have wished to die, “the actual effect of that is everybody is going to be kept alive,” said James M. Braden, a court-appointed attorney for Robert since April 1998.
In deciding whether to terminate medical care, courts have examined statements made by patients before their injuries. But Dr. Childs said wishes expressed by healthy people may not reflect their preferences after becoming disabled.
“There is this whole concept and argument that you are not the same person, your mind is not the same.”
ew people leave written instructions to families–Robert did not do so–and those who give verbal directions usually don’t envision every medical scenario.
“The question this litigation presents is this,” said Eisenberg, who represents bioethics groups: “Are we going to hold people to a very high standard of proof before we acquiesce to their wishes?”
Rare Cases of Recovery Raise Hope
Experts believe there may be as many as 40,000 patients in the United States in a persistent vegetative state–able to open and move their eyes, but unconscious. Traumatic brain injury leaves more than 75,000 people with long-term disabilities each year.
Sometimes patients are misdiagnosed as vegetative before caregivers discover they are conscious. In one case, Dr. Douglas I. Katz, a Boston University neurologist, said he suspected a patient was not truly vegetative because she grimaced or cried when shown a picture of her child. He decided to test her by showing several pictures of children, including her own. She reacted more strongly to her child’s picture, he said.
A famous example of misdiagnosis was the case of Julia Tavalar, who with Richard Tayson wrote a book called “Look Up for Yes” and whose story was reported by the Los Angeles Times Magazine. Tavalar woke up from a coma-like state several months after suffering strokes. Because she was paralyzed and therefore could not speak, no one discovered for six years that she was conscious.
In other cases, known as “miracle wake-ups,” patients have regained consciousness after years of being in a vegetative or semiconscious state.
Tennessee policeman who had only slight consciousness for eight years stunned everyone around him by suddenly talking and telling jokes one day in 1996. He recognized his sons and spoke coherently for 18 hours.
That burst of clarity quickly faded, however. He died a year later from a blood clot.
Although such cases raise hope, the prognosis for Robert Wendland is poor because of the passage of so many years without significant improvement. In most cases when recovery occurs, it takes place within the first two years after the injury.
CAT scans show that Robert has moderate atrophy of his brain, a sign of permanent brain damage, said Dr. Ronald E. Cranford, who testified on behalf of Rose in the case.
If his feeding tube were removed, Robert would probably die within 14 days–of dehydration, not starvation–said Cranford, a clinical ethicist and neurologist who has consulted in several landmark, termination-of-treatment cases. In the final two to four days, Robert’s extremities would become cold and his skin mottled. Because he is conscious and can experience pain, he would be given medication, and possibly even be put into a coma, to prevent suffering.
Florence Wendland said she will take the case to the U.S. Supreme Court to prevent this conclusion to Robert’s life.
Robert was the second oldest of Florence’s eight children. Several of the children left home before they were 18. Before the accident, Robert and his mother were estranged, said Rose and Robert’s brother, Michael Hofer.
“He didn’t want anything to do with her,” Rose said.
Now, Florence is Robert’s only regular visitor.
At 78, she is a frail woman with faded red hair, glasses and a hearing aid. She rides the bus to the hospital three days a week to be with Robert.
Florence said her five-hour visits with Robert pass swiftly. She pushes him in a wheelchair, reads and sings to him, and works with him using the blocks.
She said Robert enjoys his activities, particularly bowling with the little ball on the ramp. “He bowled 125 last week,” she said. “And he sure enjoys his sleeping.”
Although Robert “doesn’t show emotions like we do,” Florence said, he has his “moods” and expresses preferences. “If he likes things, he does them and if he doesn’t, he doesn’t,” she said.
She believes Robert was thriving when he was receiving therapy. He could write the letters R and O and maneuver, with help, in a wheelchair. But the state stopped paying for the therapy after doctors concluded that it was not truly benefiting him.
“If he had had his therapy, goodness, we could have taken him out to a park by now,” his mother said.
At the end of her hospital visits with Robert, Florence said, “I’ll tell him, ‘Robert, I am ready to go.’ Then he starts watching me. It just kills my heart to see him watching because he looks at me, like, ‘Please don’t go, Mama.’ ”
But experts who have examined Robert said that despite Florence’s optimism about therapy, improvement of his condition is “extremely unlikely.”
“It is difficult to know how aware Robert is of his condition,” wrote one of the experts, Dr. Paula Sundance. “Indeed, I would hope that his level of awareness is low.”
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Scarborough Country (2005)
Wendland to Live (1997)
Wednesday, December 10, 1997
Wendland to live
COURT VICTORY: Florence Wendland, mother of Robert Wendland, is embraced outside of court by daughter Rebekah Vinson on Tuesday after a judge’s decision to keep Robert Wendland on life-support. At right is attorney Janie Hickok Siess, who represents Florence Wendland.
“If I must err, I am going to err on the side of caution. It is necessary that I choose life. … I don’t know at this point whether here today I am preserving Robert’s life or whether I am sentencing him to life.”
- Judge Bob McNatt
SUPPORTING LIFE: Ken Owen, left, Dana Cody, and the Rev. Hans Wiersma demonstrate Tuesday outside the san Joaquin County Courthouse. Wiersma is reading a statement from a woman whose husband had a similar condition to that of Robert Wendland.
Judge rejects plea to end Stockton man’s life support
By Kimi Yoshino
Record Staff Writer
Robert Wendland should not be allowed to die by disconnecting the feeding tube that has kept him alive for four years, San Joaquin County Superior Court Judge Bob McNatt declared Tuesday.
The surprise ruling cut short a high-profile trial monitored by medical and legal scholars across the country.
“I feel that this is the absolutely wrong decision for all the right reasons,” McNatt said. “I entertain a strong suspicion that Robert would have wanted to die.”
But McNatt said a strong suspicion is not enough evidence to end the 45-year-old Stockton man’s life as requested by Wendland’s wife, Rose Wendland, the couple’s three children and his court-appointed attorney, Deputy Public Defender Doran Berg. They did not — and could not — meet their clear and convincing burden of proof under California law, McNatt said.
If McNatt had allowed Wendland’s life-sustaining feeding tube to be removed, it would have been a first for a California court. No judge has endorsed withdrawing life support from a person in Wendland’s condition, conscious but unable to communicate because of serious brain damage from a 1993 car crash.
Wendland’s mother, Florence Wendland, and sister Rebekah Vinson, who fought since July 1995 to keep him alive, met McNatt’s decision with relieved tears.
“We are on top of the world,” Vinson said. “We are going to relax for the first time in 2 1/2 years.”
Rose Wendland, who testified that her husband did not have a living will but had told her he would not want to live without being a “father, husband and provider,” sat in stunned silence and quickly left the Stockton courtroom without comment.
McNatt described Rose Wendland as one of the most selfless and devoted wives he has seen, but he said that to rule in her favor, he would have to extend the bounds of California law.
“If I must err, I am going to err on the side of caution. It is necessary that I choose life,” McNatt said. “I am not ready to start down that slippery slope without some form of guidance.”
The ruling, which McNatt predicted would be appealed, came 1 1/2 hours after the court day usually ends and before Wendland’s mother and sister presented their case.
Elements of the case have been considered by the state Court of Appeal and the California Supreme Court. The case also has grabbed headlines in national magazines, won attention on Internet bulletin boards and aired on the TV newsmagazine “Dateline NBC.”
During the trial, Rose Wendland testified that she asked in 1995 that her husband be allowed to die because he had shown little significant improvement since a September 1993 traffic accident. He was driving drunk, and his car overturned off an Interstate 5 onramp at Highway 12.
He has spent nearly four years at Lodi Memorial Hospital West, in a medical state that many found difficult to describe. One doctor testified Tuesday that Robert Wendland is “minimally conscious.”
Though Robert Wendland is able to perform some simple tasks, such as identifying a colored peg and propelling a wheelchair with his foot, Rose Wendland has said those are not meaningful enough functions for her husband to live.
Her motives, she has said, were to fulfill his whishes and allow him to die with dignity. Family members had testified that Robert Wendland was a man who enjoyed boating and spending time with his children and hated being dependent on others.
At least six doctors and ethicists who had testified in the nearly two-month trial said Robert Wendland has little chance for meaningful recovery. They agreed it is ethically appropriate to let him die.
Berg, appointed to be an independent voice in the highly emotional proceedings, closed her case Tuesday, stating she is convinced that Robert Wendland told his wife he would want to die. She declined comment Tuesday evening.
Rose Wendland also declined comment, but her attorney, Stephen Scott, said he was “absolutely shocked” by McNatt’s decision. He said he does not know what their next step will be.
McNatt’s early ruling came as a surprised because Florence Wendland’s attorney, Janie Hickok Siess, had not yet begun to present her case that Wendland should live. She argued Tuesday afternoon that neither Scott nor Berg had presented adequate evidence and urged the judge to rule on the case on those grounds.
“I’m very pleasantly surprised,” Siess said. “Robert is going to live. He is not going to be starved and dehydrated to death.”
Though McNatt ruled in favor of sustaining Robert Wendland’s life, he said the case probably will continue to haunt him in the early morning hours as it has many nights over the past two years.
“I don’t know at this point whether here today I am preserving Robert’s life or whether I am sentencing him to life,” McNatt said.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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KRON’s November 1995 Report
The newscast that brought the Wendland case into the public’s consciousness and began a debate that continues today.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Disabled California Man Saved from Starvation Death (1997)
By Liz Townsend
Robert Wendland, severely disabled since a 1993 car accident, will not be starved to death, a California judge has ruled. The case pitted Wendland’s wife, who had asked the court to allow his feeding tube to be removed, against his mother and sister, who insisted he was conscious, responsive, and did not deserve to die.
“What has happened here is the prevention of a slow, grueling, and potentially excruciatingly painful death for a person who is conscious and can experience pain,” Janie Hickok Siess, the attorney opposing Mrs. Wendland’s starvation request, told the Sacramento Bee. Robert Wendland cannot walk or speak, but he is aware of his environment, breathes on his own, and has communicated nonverbally with other people.
The case is one of several recent court battles in which others have argued that patients who were severely disabled, though conscious and responsive, would be “better off dead” and have sought to withdraw basic care from them. “These cases represent the effort to expand the range of people with disabilities who could have treatment and care withdrawn, including food and fluids,” said Thomas J. Marzen, general counsel of the National Legal Center for the Medically Dependent and Disabled. “So far, that effort has failed, but proponents are nothing if not determined.”
Indeed, Wendland’s safety may still be in jeopardy. In February, the same judge who refused to order his death last December allowed Wendland’s wife to continue making decisions for him, even though she has insisted it is in his best interests to die.
Dana Cody of the Life Legal Defense Foundation, which is providing financial help to those seeking to save Wendland’s life, told NRL News that he is not now receiving any significant physical therapy. Absent therapy, his chances of catching pneumonia or developing other complications are greatly enhanced.
Wendland went into a coma following a car accident in September 1993. He awoke from the coma 16 months later, partially paralyzed but responsive, according to syndicated columnist Wesley J. Smith.
He now breathes on his own, but needs a nasogastric feeding tube to provide nutrition and hydration. In July 1995, Wendland’s wife Rose asked the hospital to remove his feeding tube, saying that Wendland told her he would not want to live if he couldn’t “be a husband, father or a provider,” Smith reported.
His doctors and an ethics committee at Lodi Memorial Hospital West, where he remains in residence, refused to remove his feeding tube. Wendland was scheduled to be transferred to a convalescent home where his tube would be removed, according to the Sacramento Bee. Wendland’s mother, Florence, and his sister, Rebekah Vinson, strongly objected to Rose Wendland’s starvation request and obtained a temporary restraining order to force the case into the courts before any action was taken to cause his death.
They insist Wendland can drive his electric wheelchair by himself, propel a manual wheelchair with his unparalyzed side, write some letters of his name, and answer yes or no questions using buttons, according to Smith’s column. When he was asked, “Is your name Robert?” he answered yes; to “Is your name Michael?” he answered no. Doctors asked if he wanted to die, but he did not answer, Smith reported.
The case went to trial before Superior Court Judge Bob McNatt in October 1997 and lasted until December 9, when the judge dismissed the case. Judge McNatt concluded that he found “no basis in California law to terminate treatment for a person in Wendland’s medical condition,” the Bee reported. “If I have to choose life and death based on the evidence presented to me, I must err on the side of caution and choose life,” McNatt said in court, according to the Associated Press.
Only Rose Wendland’s lawyers and a public defender, assigned to protect Robert’s interests but who agreed that he should die, presented their sides before the case was dismissed. McNatt is expected to issue a written decision in the case within the next few weeks.
After that, Rose Wendland’s lawyers told the Bee they would decide whether to appeal to the California 3rd District Court of Appeals. Life Legal Defense Foundation’s Cody said the opposing side would certainly cross-appeal and continue to fight to save Robert Wendland’s life.
“It is an incredible indication of how dominant prejudice against people with disabilities has become in our society that courts could even seriously consider the starvation of a conscious person with no terminal illness - - because the person has a disability,” said Burke Balch, director of NRLC’s Department of Medical Ethics. “As the Wendland case shows, with America’s acceptance of the ‘quality of life’ ethic, once you put a price on human life, the price goes down.”
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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Stockton Judge Rules on Food and Water (1997)
by Cathy Ramey
Associate Editor
Life Advocate Magazine
Stockton, CA–Two years after an automobile accident failed to kill him, Robert Wendland may die by court order. Wendland, in his mid-forties, was left first in a coma, and then “cognitively disabled” because of injury to his brain. He became newsworthy shortly after waking up from the coma when his wife directed that medical staff remove all food and hydration.
Rose Wendland’s decision to starve her husband met with the approval of the Lodi Memorial hospital as well as Wendland’s physician. However, Florence Wendland, his mother, and sister Rebekah Vinson petitioned the court to bar the hospital from implementing the younger Mrs. Wendland’s request.
San Joaquin Superior Court Judge McNatt ruled that while Rose Wendland was to be given conservatorship of her husband’s estate, she could not prohibit her husband from receiving life-sustaining care.
Because of his status as a disabled person, and because he has been characterized as more disabled than he is, a video-tape record was made in which Robert Wendland can be seen responding to the directives of a physical therapist.
On Tuesday October 21, 1997 Rose Wendland went to court a second time in an attempt to gain the court’s permission to stop food and hydration to her husband.
California’s Life Legal Defense Foundation has been following the Wendland case and advocating for him to receive full medical treatment without the withdrawal of food and water. Dana Cody, a director with the Foundation told reporters, “Robert’s disability is not a fate worse than death.” She noted that those who were involved in the attempt to withdraw food and water are “demonstrating nothing more than bigotry against a severely disabled person.”
Both Florence Wendland and Rebekah Vinson have offered to take on the care of Robert Wendland, however, to date Rose Wendland has not accepted their offers.
Technorati Tags Conservatorship of Wendland, In "other" Words, Pro-Life Blog Carnival, The Cost of the Call
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