Court to Consider Fate of Semiconscious Man

BY HOWARD MINTZ
Mercury News

On a September evening nearly eight years ago, Robert Wendland
hopped into his pickup truck for a joy ride, downing beers and listening to his new Paul McCartney tape as he cruised the country roads around Lodi. Trying to navigate a U-turn, he lost control and flipped the vehicle,
suffering brain injuries that left him in a coma for 17 months.

Wendland emerged from the coma, but today remains tethered to feeding tubes and lives with only a fleeting sense of what goes on around him. His fate could now establish a new legal framework in California -- and perhaps across the country -- for the increasing number of patients who find themselves trapped between consciousness and coma.

After years of intra-family squabbling over whether Wendland should live or die, the California Supreme Court on Wednesday will hear arguments in his precedent-setting case, which moves the law one step beyond the U.S. Supreme Court's past rulings on when it might be appropriate to withdraw medical
treatment for comatose patients.

Rose Wendland, Robert's wife, insists her husband should be allowed to die because that would have been his wish. Robert Wendland's 79-year-old mother, Florence, has fought in the courts to keep her son alive, describing him as ``disabled,'' not mentally dead.Meanwhile, a host of organizations have lined up on both sides in this War of the Wendlands, arguing that the state Supreme Court's ruling could have sweeping ramifications in the right-to-die arena, influencing medical ethics decisions for everyone from accident victims to Alzheimer's patients.

Robert Wendland, a 49-year-old former auto-parts salesman, lies helpless in a Central Valley hospital as this national debate over the right to die swirls around him.``Wendland comes at a crucial time in U.S. social history as we confront issues related to allocation of health care resources, human rights and liberties, advancing technology and an aging population,'' a group of disability rights and right-to-life organizations wrote in a brief to the Supreme Court, supporting Florence Wendland.

A man `in limbo'

Rose Wendland and her three children have a simpler view of the matter after watching Robert Wendland disintegrate since the car accident. Rose Wendland is supported by California's major medical organizations, as well as 43 bioethicists.``Right now, Robert is in limbo,'' Rose Wendland said in an interview. ``He's not in heaven, he's not anywhere. He's in nowhere land. What kind of life is that? It's not what he wanted.''

Rose Wendland decided in 1995 that her husband had suffered enough, opting against keeping his feeding tubes in place. Court records indicate that Robert at times could perform certain tasks and respond to some verbal commands. He has enough physical strength that he recently bit one of his nurses. But a judge several years ago said Robert ``has no reasonable chance for the return to cognitive and sapient life.''

A hospital review board endorsed Rose Wendland's decision. But when Florence Wendland got wind of the decision to pull life support, she went to court. And her son has been in legal and medical limbo ever since.Like most Californians, Robert Wendland did not have written instructions on when he would want life support withdrawn if left in a vegetative state. According to testimony in a 1997 trial, Wendland told both his wife and brother that he would not want to survive artificially; the issue was discussed just before the car accident because of concerns about Robert's drinking and driving habits.

Florence Wendland has contested those accounts. ``He never talked about how he'd want to die,'' she said last week. ``It was never in his mind.''Under California law, which was revised last summer, a legal conservator of an incapacitated patient has broad authority to make medical decisions in ``good faith and based on medical advice,'' and if they are made in the patient's best interests and take into account the patient's ``personal values.''

Florence Wendland's lawyers are asking the state Supreme Court to declare the California law unconstitutional, warning that it provides more rights to conservators than to the most vulnerable people in society.

``There are a lot of Robert Wendlands out there,'' said Janie Hickok Siess, Florence Wendland's lawyer. ``Robert is a conscious person. There is no such thing as `minimal consciousness.' That's a made-up term by the folks on the other side of the case who want to move the line over where you can bring about the death of disabled folks.''

Legal precedents

Since the famous case of Karen Ann Quinlan in the 1970s, the courts have consistently ruled that there is a right to withdraw medical treatment for comatose patients, those classified as being in a permanent vegetative state. The leading California case was a 1988 ruling by a San Jose appeals court that allowed the withdrawal of medical treatment for William Drabick, a San Jose man who'd been in a coma for six years.

The most recent U.S. Supreme Court ruling came 10 years ago in the Nancy Cruzan case from Missouri, in which the justices narrowly found a
constitutional right to withdraw life sustaining medical treatment, but left
it to the states to devise the legal boundaries.

Wendland's case is different from the earlier rulings -- he is conscious, a
medical step up from being comatose. A state appeals court in Sacramento previously determined that Rose Wendland had satisfied the requirements of the law and could order treatment withdrawn.

The California Supreme Court must now evaluate where the line may be for a semiconscious patient such as Robert who has no hope of improvement.

State supreme courts in Michigan and Wisconsin have thus far refused to allow withdrawal of life support in cases involving ``minimally conscious'' patients.

Argument for life

Lawrence Nelson, a Santa Clara University philosophy professor and lawyer who is representing Rose Wendland, said the law is clear that Rose Wendland has the authority to make her decision and is doing it based on evidence of her husband's wishes. Nelson rejects the argument that withdrawing life support for Robert would open the door to abuses.

"The result in this case isn't going to permit families to not feed their
retarded son,'' said Nelson. If it's clear the patient has ``no interactive
life, it's fair and right to ask, under those circumstances, `Why are we
prolonging life?' ''

Rose Wendland and Florence Wendland have very different answers to that question.``I think he has a good quality of life because he can do things,'' Florence said. ``He's only disabled.''

Says Rose, ``He has no clue who anyone is. He doesn't know what's happening to him. He made it perfectly clear that's not what he wanted.''