MARCH 6, 2000 VOLUME 7, NUMBER 36
Just over eighteen months ago Elder Law Issues reported on the tragic story of Robert Wendland ("Lack of Advance Directives Contributes to Family Tragedy," August 10, 1998). Last week the California Court of Appeals added a new chapter to the Wendland story, and may have completely changed the ending.
Mr. Wendland was injured in a 1993 automobile accident. Because of brain damage from the accident he has been completely dependent on others for his care; since the accident he has received food and fluids through a feeding tube.
Mr. Wendland has been married to his wife Rose for over twenty years, and they have three children. In late 1995, Mrs. Wendland asked the court to appoint her as conservator of her husband’s person (California’s term for a guardian), and it was apparent she would be appointed. At the same time she asked the court for permission to disconnect Mr. Wendland’s feeding tube.
About the same time, Mr. Wendland’s mother Florence received an anonymous telephone call informing her that a move was underway to remove her son’s feeding tube. She and her daughter (Mr. Wendland’s sister) filed an objection with the court.
Despite some improvement in his condition, Mr. Wendland remains a total-care patient. He is paralyzed on one side and he can not feed himself or control his bladder or bowels.
Mr. Wendland has been fed by artificial means since his accident—at first by a "jejunostomy" tube stapled directly into the inside of the small intestine. Such a tube requires general anesthesia, and Mr. Wendland’s tube became dislodged three times in the first half of 1995. When his wife refused to consent to the fourth replacement of the tube, doctors insisted on a nasogastric feeding tube (inserted through the nose and directly into the stomach). For nearly five years, he has been fed by a "PEG" tube inserted directly into the wall of his stomach and small intestine. It is that tube that Mrs. Wendland now seeks to remove.
Mr. Wendland never signed any "living will," health care power of attorney or other advance medical directive. Mrs. Wendland testified that he did say he "would never want to live like that" after watching his father die three months before his own accident. That testimony was corroborated by Mr. Wendland’s brother, who told of warning him about drinking and driving just five days before the accident.
Removal of artificial feeding devices from brain-injured patients, tragic though it may be, is all too familiar in medical-legal circles. Since the late 1970s the issue of removal of life-sustaining medical treatment from incapacitated patients has been a rapidly-developing area of the law, with the U.S. Supreme Court even weighing in at one point, in the case of Missouri resident Nancy Beth Cruzan. Mr. Wendland’s story, however, is different from almost all the other cases reported in the courts.
Nancy Beth Cruzan (and, before her, Karen Ann Quinlan) was diagnosed as being in a "persistent vegetative state" (PVS). Although the diagnosis is relatively new, it has been well-described in the past quarter-century. PVS is not the same thing as "comatose;" comatose patients are completely unresponsive to external stimuli, while PVS patients often respond to noises, temperature changes and touch. In fact, PVS patients may appear to be awake, and even follow movement with their eyes. Properly diagnosed PVS patients, however, do not recover significant cognitive functioning—unlike comatose patients, who may awaken even after extended periods of unconsciousness.
Although Mr. Wendland was in a sixteen-month coma immediately after his accident, he is now awake and at least partly responsive. He can (after repeated instructions) operate a motorized wheelchair’s joystick control, and has drawn the letter "R" on command. Sometimes he cooperates with therapists enough to match colored blocks, again after instructions have been repeated multiple times.
Most remarkably, Mr. Wendland has (on at least one occasion in 1997) communicated with his physician by pushing or pointing at bars on an "answer board" set up to assist him. The physician first ascertained that Mr. Wendland’s answers were not random by asking "Are you Robert?" [Yes] "Are you Michael?" [No] and similar questions. Then he moved on to the questions central to Mr. Wendland’s future:
|•||"Do you have pain?" [Yes]|
|•||"Do your legs hurt?" [No]|
|•||"Do your buttocks hurt?" [No]|
|•||"Do you want us to leave you alone?" [Yes]|
|•||"Do you want more therapy?" [No]|
|•||"Do you want to get into the chair?" [Yes]|
|•||"Do you want to go back to bed?" [No]|
|•||"Do you want to die?" [No answer]|
|•||"Are you angry?" [Yes]|
|•||"At somebody?" [No]
Despite his ability to respond to questions appropriately, his physician opined that Mr. Wendland did not seem to understand all the questions, and his answers could not be trusted.
The trial court appointed Mrs. Wendland as her husband’s conservator, but specifically limited her authority so that she could not remove his feeding tube. She appealed, and was joined by Mr. Wendland’s court-appointed attorney. Mr. Wendland’s mother and sister asked that the trial judge’s ruling be upheld.
The Court of Appeals’ 70-page opinion begins with a simple, but eloquent, observation: "This is the hardest case." The appellate court then directs the case back to the trial court level, instructing the judge to hold further hearings and to permit Mr. Wendland’s mother and sister to put on any evidence they might have about his wishes prior to his injury.
After that evidence is in, according to the Court of Appeals, the question for the trial court is whether Rose Wendland has made her decision in good faith and based on medical advice. The trial judge’s determination that the feeding tubes could not be removed was reversed, though the final outcome is not certain, even seven years after Mr. Wendland’s tragic accident. Conservatorship of Wendland, February 24, 2000.