Last week the California Supreme Court agreed to review the Conservatorship of Wendland case. In 9/93 Robert Wendland suffered severe head injuries in an MVA. He was comatose for several months, vegetative for many more, and then regained a minimal level of consciousness. In mid-95, his wife refused reinsertion of his gastrostomy tube after he had pulled it out for the 4th or 5th time. Her decision became public as a result of an unauthorized disclosure from an anonymous source, probably a hospital staff member. Robert's estranged mother and half-sister (Objectors) obtained a court order preventing cessation of the tube feeding. His wife then filed for conservatorship and for court approval of her decision to discontinue all treatment and allow her husband to die. Objectors challenged both the eventual appointment of the wife as his conservator and her decision.
After several years of litigation, the trial court gave the wife conservatorship, but forbade her to discontinue the tube feeding because she could not establish by clear and convincing evidence that her husband would have refused the treatment. The wife appealed (represented by me) as did the court appointed lawyer for her husband. (The lawyer representing Robert at trial hired her own medical experts, reviewed the case independently, and argued that the wife should prevail.) Objectors tried and failed to have the wife removed as conservator; their appeal of this order was filed but later abandoned. In 2/00, the Court of Appeal rejected Objectors' constitutional and statutory arguments opposing cessation of the tube feeding, but ruled that the wife must show that she had satisfied the statutory requirements for medical decision making by conservators by clear and convincing evidence (the relevant statute [Probate Code 2355] states that conservators have exclusive authority to make medical decisions if made in good faith and based upon medical advice). Objectors petitioned for review by the Supreme Court arguing, inter alia, that Robert's constitutional right to life is violated by the statute and the wife's decision to d/c treatment.
In my view, the case is important for several reasons. Although truly minimally conscious (he cannot talk, communicate, swallow, or take care of himself in any manner) and less functional than Michael Martin, he is not in the permanent vegetative state. Therefore the case challenges the position, adopted by some, that treatment cessation for the non-terminally ill should be legally and ethically limited to those in PVS. Second, the case is not only about appropriate surrogate decision making but also about who the surrogate should be. Objectors are not close family; the mother, e.g., had not been in Robert's home in the 10 years prior to his accident. The wife, Rose, has been married to Robert for 20 years; their children (2 of college age now) and his brother support the wife's position. Third, the case follows up on Cruzan because it raises the constitutionality of a state's statutory scheme for medical decision making that grants broad authority to the person appointed conservator.
If persons/organizations on this List or otherwise are interested in possibly getting involved in the litigation in support of the wife as an amicus curiae, I have an attorney who is willing to represent them and write a brief. If you are interested, please contact me directly (not as a reply to this message on MCW) with your name and how to contact you over the summer and into the early fall. Any amicus brief would have to be submitted by October 10. For those interested in supporting or contacting the other side, I'd suggest you contact Wesley Smith who often participates in this List's discussion or Objectors' attorney, Janie Siess at 209-477-8171. Rita Marker, known to many of you, has also been involved in this case at the appellate level.
If persons want more information or to discuss the case, I'd be
happy to participate.
Larry Nelson
Lawrence J. Nelson
99 Banks St., San Francisco, CA 94110-5668
415-643-1707 (home office); 415-245-8206 (pager)
Dept. of Philosophy, Santa Clara University, 500 El Camino Real,
95053-0310
lnelson@scu.edu