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California high court to ponder rights on medical decisions

Thursday, August 20, 1970

California high court to ponder rights on medical decisions
Physician groups fear legal intrusion into determinations best made by patients and their closest family members.

American Medical News, July 31, 2000
By Vida Foubister, AMNews staff.

California Supreme Court justices unanimously decided last month to review a long-standing case that weighs incompetent patients' right to refuse medical treatment with their constitutional right to life.

The conservatorship of Robert Wendland, who was in a coma for 16 months after a car crash and then regained limited consciousness, has been before the courts since 1995.

At issue is the right of his conservator, in this case his wife, Rose Wendland, to discontinue treatment she believes Robert Wendland would have refused. His mother, Florence Wendland, and a sister, Rebekah Vinson, contend that withdrawing artificial hydration and nutrition violates his constitutional right to life.

Unlike the patients in related cases, Robert Wendland is not in a persistent vegetative state. He is severely brain damaged and cognitively impaired. But he has limited consciousness, and the two sides disagree on his current ability to interact with his external environment.

Also setting this case apart is a California statute that give conservators broad rights to make medical decisions for patients who are incompetent. It states: "the conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee as the conservator, in good faith based on medical advice, determines to be necessary. The conservator may require the conservatee to receive such medical treatment whether or not the conservatee objects."

That statute was amended by the California Legislature last year to include health care decisions that include the withholding or withdrawal of artificial hydration and nutrition. Though not in place during the Third District Court of Appeal deliberations, the amendment became effective July 1.

"Where the law is putting its check and balance here is when you appoint the person to be the decision maker for the incompetent patient," said Lawrence J. Nelson, a bioethicist and Rose's attorney. "Once you've got the right person who is in the best position to do this, then the law backs off and lets that person decide."

Medical groups back right to refuse

Though not yet active in the case pending before the California Supreme Court, physician groups have sided with Rose Wendland. The California Medical Assn. and the Los Angeles County Medical Assn. both filed amicus curiae briefs on her behalf with the Court of Appeals.

"It's not good for the courts to be intervening in what are agonizing decisions," said Terri Keville, an author of the brief filed by LACMA, the Los Angeles County Bar Assn. Joint Committee on Biomedical Ethics and the Los Angeles County Bar Assn. Bioethics Committee.

But, they say, the evidentiary standard required by the Court of Appeals -- clear and convincing evidence, as opposed to preponderance of evidence -- would do just that.

"Physicians aren't lawyers, and even lawyers are never sure exactly what [constitutes] clear and convincing evidence," said Alice Mead, who co-authored the CMA's brief. "Our concern was that many cases would be sent to the court that currently and appropriately are decided at the bedside."

Further, they argued that the conservator's ability to withdraw nutrition and hydration isn't limited to patients in a persistent vegetative state. Patients like Robert Wendland with very low cognition still might be able to experience "pain or loneliness or fear or despair," making continuation of treatment a prolongation of their suffering, Mead said. "It's dignitary harm to them and various other kinds of harm to their loved ones."

Opposing Rose Wendland's rights as conservator is Not Dead Yet and other advocacy groups for people who have disabilities or are incapable of advocating for themselves. They question the California statute's focus on the conservator, at the expense of the conservatee. If the Court of Appeals decision is upheld, they fear that vulnerable people will be euthanized against their wishes.

"If we're not going to look at the individual, then we've destroyed Hippocratic medicine," said Wesley J. Smith, who wrote an amicus curiae brief for the Coalition of Concerned Medical Professionals in support of Robert Wendland's mother.

AMA policy states that "even if the patient is not terminally ill or permanently unconscious, it is not unethical to discontinue all means of life-sustaining medical treatment in accordance with a proper substituted judgment or best interests analysis."

But Herbert Rakatansky, MD, chair of the AMA Council on Ethical and Judicial Affairs, said the issues in the Wendland case are not ethical ones. "This is really a question of who best represents what the patients would have wanted," he said. "That's not a question that we can decide, it's a question for the court to decide."

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Case at a glance

Robert Wendland and Rose Wendland v. Florence Wendland and Rebekah Vinson

Venue: Supreme Court of California

Case No.: C029439

Facts: In September 1993, Robert Wendland, then 42 , was involved in a car crash that left him in a "minimally conscious state." His wife, Rose Wendland, the court-appointed conservator, refused reinsertion of his feeding tube in July 1995. This decision was challenged by his mother, Florence Wendland, and a sister, Rebekah Vinson.

Case history: The trial court denied Florence Wendland's motion to remove Rose Wendland as conservator, but its March 1998 decision also prohibited Rose Wendland from withdrawing the feeding tube. The Third District Court of Appeals in February upheld the opinion that Rose Wendland must prove by "clear and convincing evidence" that she had met California's statutory requirements for medical decision-making by conservators. But it said the court erred in requiring her to demonstrate that her husband, when competent, had expressed a desire to die if in his current capacity. The state Supreme Court unanimously granted Florence Wendland's petition for review June 21.

At issue: Whether California Probate Code 2355, which gives the conservator "exclusive authority" to make health care decisions, violates the conservatee's constitutional right to life.





Other Selected Articles on Robert Wendland Case

Out of a Coma, Into a Twilight . . . LA Times, May 31, 2001

New Twist in Cases Over Right to Die: Patient Is in Twilight State, Not in a Coma . . . San Francisco Chronicle, May 31, 2001

CALIFORNIA SUPREME COURT GRAPPLES WITH PULLING PLUG ON ACCIDENT VICTIM . . . San Francisco Chronicle, May 31, 2001

ENDING LIFE SUPPORT: WHO DECIDES? . . . Transcript from CNN's Talkback Live, May 30, 2001

ACLU-Northern California Supports Man's Right to End Life Support . . . ACLU News, January/February, 2001

Appellate Court Says Wife Has Right to Disconnect Husband's Life Support . . . Associated Press, February 24, 2000

Lack Of Advance Directive Contributes To Family Tragedy . . . Elder Law Issues August 10, 1998 Vol. 6

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