IMMEDIATEEMERGENCY RELIEF REQUESTED
COURT OF APPEAL OF CALIFORNIA
THIRD APPELLATE DISTRICT
FLORENCE WENDLAND and
SUPERIOR COURT OF CALIFORNIA FOR
THE COUNTY OF SAN JOAQUIN,
Real Party in Interest.
San Joaquin County Superior Court Case No. 65669
Hon. Bob W. McNatt, Judge
PETITION FOR WRIT OF MANDATE OR OTHER APPROPRIATE RELIEF;
MEMORANDUM OF POINTS AND AUTHORITIES ACCOMPANIED BY
EXHIBITS IN SUPPORT THEREOF;
Petitioners FLORENCE WENDLAND (hereinafter “Florence”) and REBEKAH VINSON (“Rebekah”) come before this Court again, this time asking this Honorable Court to consider their EMERGENCY plea for assistance because they are in possession of information which leads them to believe that the very life of the Conservatee herein, ROBERT WENDLAND (hereinafter “Robert”) hangs in the balance. Indeed, Florence and Rebekah reasonably fear, based upon the paucity of information that they have been able to obtain, that Robert is dying and they implore this Court to take action without delay.
As is set forth in detail in the Petition, Florence, who has been visiting with Robert consistently since he sustained injuries in a September 1993 motor vehicle accident which left him cognitively disabled, arrived at Lodi Memorial Hospital - West (hereinafter “the hospital”) on Wednesday, July 11, 2001, to find Robert --- in her lay estimation --- gravely ill. Indeed, his condition had deteriorated dramatically in the week or so since Florence had last visited her son. Specifically, Florence noted that her son was weak, clammy and feverish, and his breathing was labored. He attempted to cough, but was unable to do so. Despite his weakened condition, Robert recognized her and responded to her verbal commands.
Upon seeing her son in his weakened condition, Florence naturally became alarmed, concerned and extremely frightened for his safety. She asked Robert’s caregivers what had happened to her son and what was presently wrong with him. She was told by hospital personnel that they had been instructed by Robert’s wife and conservator, ROSE WENDLAND (hereinafter “Rose”), not to answer any questions she might pose concerning her son’s health.
In must be noted that Robert’s deterioration came on the heels of Rose directing the hospital to confine Robert to his hospital room during his mother’s visits. Until June 1, 2001, Florence had wheeled Robert through the hospital corridors, taken him into the hospital’s “quiet room,” and accompanied him to the hospital’s multi-purpose room where he, along with other patients, engaged in various activities. However, since June 1, 2001, Florence has not been allowed to perform any of these acts and has been forced by Rose to spend the entirety of her several hours-long visits sitting at Robert’s bedside in his hospital room.
Additionally, Rose ordered the hospital to prohibit Rebekah from visiting with her brother at all.
A reasonable request was issued to Rose by and through her counsel of record, seeking information about Robert’s dramatically altered condition. That request was vehemently, strenuously, and, bluntly, coldly denied. In fact, Rose’s counsel related that, if Florence even posed an inquiry to the hospital personnel concerning her son’s condition and/or treatment (which Rose defined as causing a “ruckus”), Rose would immediately direct the hospital to bar Robert’s mother from seeing her son at all.
Accordingly, on July 12, 2001, Florence and Rebekah brought their Ex Parte Petition for Instructions before the San Joaquin County Superior Court (hereinafter “the lower court”), the Honorable Bob W. McNatt, presiding. They sought Judge McNatt’s assistance in ascertaining an explanation for the extraordinary decline in Robert’s condition and reasonably expected him to take steps to curtail what Florence and Rebekah contend are patent abuses of her conservatorship authority by Rose. The Petition was heard in chambers without a court reporter present, therefore, there is no transcript available for this court to review.
Judge McNatt “declined” the relief requested in its entirety, contending that he lacked “jurisdiction” to grant the Petition. He advised Florence and Rebekah to lodge a fully noticed motion, characterizing the current controversy as a “post trial discovery” dispute. Although Florence and Rebekah cautioned Judge McNatt that they had no other plain, speedy or adequate remedy available to them and that, by the time he heard a fully noticed motion, Robert could well be dead, Judge McNatt was unyielding in his denial of the relief requested.
Thus, Petitioners seek the issuance of an immediate and EMERGENCY writ of mandate to the lower court to grant the relief requested in their Ex Parte Petition for Instructions. Petitioners contend that Judge McNatt’s denial of the relief requested was wrong, as a matter of law, and constituted an abdication of the court's continuing responsibility and obligation to oversee and manage the ongoing conservatorship of Robert. Judge McNatt was in possession of more than sufficient information to cause him to be alarmed and worried about the conservatee’s best interests. He had both the authority and a responsibility to, at a minimum, undertake a sua sponte investigation into whether or not Rose is carrying out her statutory duties as Robert’s conservator.
Judge McNatt’s assertion that he lacks jurisdiction in this matter is clearly erroneous. One aspect of this case remains under submission before the California Supreme Court - the question of the constitutionality of Probate Code section 2355 and the standard by which a surrogate’s decision to withhold medical treatment resulting in the death of the conservatee is to be evaluated. However, while the parties await a ruling from this State’s highest tribunal, the conservatorship continues to exist and, as new controversies pertaining to the existence and administration of that conservatorship arise, the lower court must exercise its statutory authority and responsibility to adjudicate those controversies. The conservatorship does not exist in a vacuum, of course. Judge McNatt’s refusal to act constitutes an abdication of the lower court’s responsibility to the conservatee.
Specifically, in accordance with Probate Code section 2359, Florence and Rebekah, via their Ex Parte Petition for Instructions, sought the following emergency relief from the San Joaquin County Superior Court:
An order compelling Rose to immediately apprise Florence and Rebekah of Robert’s medical status/condition, diagnosis, treatment and prognosis, and provide them with regular updates about his care and treatment;
An order allowing Florence and Rebekah’s retained expert neurologist, Vincent Fortanasce, M.D. to immediately afforded an opportunity to examine Robert, review his medical records, and consult with his caregivers and physicians in order to ascertain Robert’s current physical status, diagnosis, prognosis, etc. and advise Florence and Rebekah concerning the appropriateness, in his estimation, of Robert’s care and treatment.
Consistent with Robert’s best interests, order Rose to allow both Florence and Rebekah unfettered and regular visits with Robert. Such visits should not be confined to Robert’s hospital room, as such is contrary to Robert’s best interests.
Make such other and further orders as the court deemed proper and consistent with both the conservatee’s best interests and the conservator’s fiduciary obligations to the conservatee.
Since Judge McNatt declined to grant Florence and Rebekah the relief they sought, matters have worsened. Specifically, Florence was prohibited from visiting with Robert at all on Friday, July, 13, 2001.
On Saturday, July 14, 2001, Florence was permitted to visit her son. However, Robert’s physical condition was perceived by Florence to be even worse than on the previous Wednesday. Florence noted that he was weaker, less able to respond to her voice or squeeze her hand, and his breathing was even more labored than the last time she saw him. Moreover, Florence noted that morphine was being administered to Robert via an i.v.
Robert’s brother, Michael Hofer (hereinafter “Hofer” - not a party to this proceeding), was at the hospital and spoke with Rebekah. She told Hofer that she did not feel that Rose’s act of barring her from visiting her brother was “fair” and lamented the fact that their mother, Florence, has to “go through this all by herself.” Hofer advised Rebekah that he intended to speak with Rose and attempt to dissuade her from barring Robert’s family members from the hospital so that they would be given a chance to visit Robert and “say their good-byes.”
Hofer’s commentary understandably caused Florence and Rebekah considerably more anguish, distress, and worry.
Florence and Rebekah reasonably fear that Robert is dying and they, his close family members, are being barred by Rose, in reliance upon and abuse of the authority vested in her as Robert’s conservator, from being informed about Robert’s true medical condition or spending precious time with him.
Moreover, because Rose is Robert’s conservator, Florence and Rebekah have no ability or authority to independently obtain information concerning Robert’s care and treatment in order to ascertain whether or not Rose’s actions are consistent with her fiduciary duty to safeguard and protect Robert. All relevant evidence about Robert, his condition, and his treatment lies within the hospital - and Rose quite literally :”holds the keys” to that facility. Thus, not only is Rose, as conservator, “calling all the shots,” she is, with Judge McNatt’s blessing, preventing Robert’s family from accessing crucial information in order to scrutinize her actions.
Florence and Rebekah, based upon the limited information within their possession, have more than sufficient reason to be alarmed, concerned and fearful for Robert’s safety, and to question the motives and secretive actions of Rose. In July 1995, this proceeding was commenced in response to Rose’s attempt to direct Robert’s treating physicians to remove the feeding tube through which Robert receives nutrition and hydration, thereby bringing about his death by dehydration and starvation. Rose attempted to take that action in secret and silence without letting his family members, including his mother and siblings, know what she had planned for Robert. Florence and Rebekah only “learned of these plans through an anonymous telephone call and obtained a temporary restraining order in early August 1995.” (Wendland v. Superior Court (1995) 49 Cal.App.4th 44, 47.) Were it not for that anonymous telephone call, Robert would have been dead in August 1995.
Rose’s counsel told Judge McNatt that Rose has “nothing to hide,” yet she steadfastly refuses to honor Florence and Rebekah’s lawful and reasonable requests to know whether or not their son and brother is receiving adequate and appropriate medical care and treatment, or allow them any access whatsoever to the evidence which would support a finding that her conduct is consistent Robert’s best interests and her statutory obligations.
Accordingly, Florence and Rebekah turn to this tribunal for emergency assistance.
FACTUAL AND PROCEDURAL BACKGROUND
This Court is familiar with the underlying facts of this matter which were recited in its September 11, 1996 decision, Conservatorship of Wendland (1996) 49 Cal.App.4th 44.
Petitioners herein are Robert’s mother and sister. Robert is cognitively disabled as a result of a September 1993 motor vehicle accident. He receives nutrition and hydration through feeding tube. It is beyond dispute that Robert is not in a persistent vegetative state nor coma. Although Rose and Robert’s court-appointed counsel persist in referring to Robert as “minimally conscious,” since there is no such medical condition or term..
In July 1995, Rose determined to order Robert’s treating physicians to withdraw the feeding tube by which he receives life-sustaining nutrition and hydration. Such action would, of course, result in Robert’s death by dehydration and starvation, a process that can be protracted and exquisitely painful for a conscious, but disabled, individual.
On August 8, 1995, Rose petitioned the lower court to be appointed Robert’s conservator. She also sought specific authority to direct the cessation of Robert's life-sustaining medical treatment in the form of nutrition and hydration, bringing about his death by dehydration and starvation. On September 11, 1995, Rose was appointed conservator of Robert’s person and has served in that capacity since that date. The lower court limited Rose’s powers:
Rose will have no authority to direct the termination of treatment or the removal of the feeding tubes pending the return to court.
While she will have authority to direct other treatment, it will be up to her to work in good faith cooperation with the doctors and the staff on the most appropriate treatment program for Robert in order to maximize his continuing recovery to the extent possible.
On December 9, 1997, Judge McNatt granted Florence and Rebekah’s Motion for Judgment pursuant to Code of Civil Procedure section 631.8, refusing to permit Rose to direct that Robert’s feeding tube be removed. Judge McNatt stated that he entertained a “strong suspicion" that Robert would have desired to die under the circumstances of his disability but, given Rose and Robert’s court-appointed counsel’s failure to present clear and convincing evidence of his wishes or that it was in his best interests to die by dehydration and starvation, court precedent or legislative guidance, he was required to err, if at all, on the side of caution.
That decision was immediately appealed by both Rose and Robert’s court-appointed counsel. After this Court rendered its decision on February 24, 2000, Florence and Rebekah sought review by the California Supreme Court. Review was granted on June 4, 2000 and oral argument took place on May 30, 2001. The parties await the Supreme Court’s ruling.
The remainder of the pertinent factual information relative to the instant dispute is set forth above in the Introduction above, as well as the Petitions below.
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR WRIT OF MANDATE
OR OTHER APPROPRIATE RELIEF
THE PRESENT CONTROVERSY SURROUNDS THE CONSERVATOR’S EXERCISE OF HER AUTHORITY WITH RESPECT NOT ONLY TO ROBERT’S ONGOING CARE AND TREATMENT, BUT ALSO ACCESS TO ROBERT AND EVIDENCE OF HIS ONGOING CARE AND TREATMENT BY THE INTERESTED PARTIES TO THIS PROCEEDING.
The controversy concerning access to information about Robert’s physical condition.
Florence and Rebekah are parties to this proceeding, as well as members of Robert’s family. They are frightened, concerned, and distraught about what Florence has observed during her recent visits with Robert. Although cognitively disabled, Robert has been otherwise healthy and strong since sustaining injuries in September 1993. Thus, his present physical condition constitutes a dramatically alarming change.
Florence and Rebekah reasonably fear that Robert is dying and they are not being informed of this development, but are wrongfully being denied access to available evidence concerning the appropriateness and adequacy of Robert’s medical care and treatment.
Rose contends that she has no obligation to provide any information whatsoever concerning Robert’s medical condition to Florence and Rebekah. Indeed, she asserts that she is absolutely prohibited, as Robert’s conservator, from divulging any information to Florence and Rebekah. Rose relies upon Civil Code section 56.10.
Rose’s arguments are without merit and unsupportable.
Indeed, Robert’s medical condition forms the entire basis for this proceeding. In 1995, Rose petitioned the lower court for simultaneous appointment as Robert’s conservator and authority to order the termination of delivery of Robert’s life-sustaining nutrition and hydration. Once appointed Robert’s conservator, she did not withdraw her request for permission to order the withdrawal of his feeding tube, but, on the contrary, as reasserted that request throughout the duration of this case. Robert’s medical condition is inarguably “at issue” in this matter and, as parties, Florence and Rebekah are absolutely entitled to obtain information pertaining thereto.
Moreover, Rose, as the holder of Robert’s right to medical privacy, long ago waived his right to privacy regarding the disclosure of medical information and/or medical records to Florence and Rebekah, not only by tendering his medical condition “at issue” in this case, but by failing to object to the production of medical records early on in this proceeding. When Florence and Rebekah subpoenaed Robert’s medical records from the hospital, there was no objection lodged by Rose and, indeed, until the conclusion of the trial in the lower court, Florence and Rebekah received Robert’s complete medical file on a weekly basis. Given that that subpoena has never been rescinded or withdrawn, and this matter is still pending in the lower court, it is still operational and the medical records should arguably be produced by the hospital without the need for any consent or authorization by Rose.
Finally, under Probate Code section 2359, in response to a petition lodged by an “interested person,” the court “court may authorize and instruct the guardian or conservator or approve and confirm the acts of the guardian or conservator.” Even assuming, arguendo, that Robert’s medical condition had not already been tendered “at issue” in this proceeding and no waiver of Robert’s right to privacy in his medical information and/or records had not already occurred, Judge McNatt had the power, authority and, indeed, responsibility, to “instruct” Rose, as the holder of Robert’s right to privacy in his medical information, to either provide Florence and Rebekah with information and records pertaining to Robert’s condition herself or order her to provide the lower court with the information so that Judge McNatt could satisfy himself that Rose’s actions are inconsistent with her obligations to Robert.
Moreover, contrary to Rose’s assertions, Civil Code section 56.10 empowers the lower court to grant the relief sought by Florence and Rebekah. Subdivision (b)(1) directs a healthcare provider to provide information pursuant to a court order. Thus, Judge McNatt clearly had authority to direct Rose to consent to the pertinent information by the hospital either directly to Florence and Rebekah or to him.
Any privacy interest which Robert may have in his medical information and/or records is plainly outweighed by the exigent circumstances in this proceeding. Robert’s life hangs in the balance. Florence and Rebekah seek to understand precisely what is happening to Robert, i.e. the reason for his deteriorated physical condition, the reason why he is receiving morphine, the reason why he is weak, clammy and his breathing is labored, and, most importantly, whether or not his conservator is taking all steps required by her under the law to protect and safeguard Robert. Obviously, their purpose in attempting to obtain the information is to ascertain whether or not they need to take additional legal action in order to prevent harm from coming to Robert. Given the gravity of the situation, the fact that Florence and Rebekah have no other means by which to obtain the evidence necessary to an evaluation of Robert’s care, condition, prognosis and adequacy of treatment, any privacy interest(s) implicated, must yield to Florence and Rebekah’s need for the information in question.
Any other result not only allows Rose to serve as conservator --- and, perhaps, abuse her authority -- with absolutely no oversight or accountability, it places Robert’s very life in danger.
Rather than heed Florence and Rebekah’s warning that Robert could be dead long before he could hear a fully noticed “discovery” motion, Judge McNatt chose to do nothing, asserting that he lacked “jurisdiction.” Because Judge McNatt refused to act, this Court must now act to protect Robert.
The controversy surrounding Florence and Rebekah’s request that their retained expert physician examine Robert.
The analysis with regard to Florence and Rebekah’s access to medical information and/or records is equally applicable to their request that their physician be allowed to examine Robert. Florence and Rebekah are laypersons with no medical training who must look to a medical expert for guidance and an opinion regarding Robert’s care and treatment.
Florence and Rebekah are absolutely entitled to have their physician examine Robert in accordance with Code of Civil Procedure, section 2032, which provides that “[a]ny party may obtain discovery . . . by means of a physical . . . examination of (1) a party to the action, . . . or (3) a natural person in the custody or under the legal control of a party, in any action in which the . . .physical condition . . .of that party or other person is in controversy in the action.”
Moreover, given the gravity of the circumstances, Rose’s failure to disclose any information about Robert’s present condition, and her past history of acting surreptitiously to bring about Robert’s death, Judge McNatt could have ordered that an independent medical examiner be appointed to examine Robert and render an opinion to the court as part of the court’s obligation to oversee, administer, and monitor the ongoing conservatorship.
Instead, Judge McNatt did nothing and, in the interim, Robert’s condition is worsening.
The visitation controversy
As set forth above and detailed in the Petition, Rose’s actions as conservator are subject to scrutiny by the lower court and must, at all times, be consistent with Robert’s best interests.
Until June 1, 2001, Florence has regularly visited with Robert in a reasonable and relatively unfettered fashion. Although Florence has been barred since in or about July 1995 from taking Robert in his wheelchair into the hospital’s outdoor courtyard so that he might get fresh air and sunshine, she has had the right to visit with him approximately three (3) times per week. Each such visit has lasted for several hours. During that time, she has wheeled him about the hospital corridors in his wheelchair, read, sang and talked to him, washed and stroked his face, combed his hair, taken him into the hospital’s “quiet room,” and accompanied him to the hospital’s multi-purpose room. There, Robert and other patients participate in activities such as painting pictures, bowling and golfing (in a form adapted specifically to meet the patients’ needs as disabled individuals).
However, on Friday, June 1, 2001, when Florence arrived at the hospital, she was summoned to the office of the hospital’s nursing supervisor/administrator. There, she was informed that Rose had issued a directive to the hospital that, effective immediately, no one would be allowed to visit Robert other than Florence, including Robert’s sister, Rebekah.
Moreover, Rose ordered that Florence be confined to visiting with Robert in his hospital room. Since Florence was informed of these developments just two (2) days after this matter was argued before the California Supreme Court, she reasonably believed that Rose’s directives concerning her visits with her son constituted temporary measures designed to protect Robert from media intrusions. Florence anticipated that, as soon as the publicity surrounding the Supreme Court arguments subsided, Rose would rescind her orders restricting the manner of Florence’s visits, and allow Robert to venture outside his hospital room.
Rose’s order was not rescinded, thus Florence and Rebekah’s counsel wrote to Rose’s counsel on June 16, 2001 in an attempt to informally resolve the dispute.
I have waited until this time to contact you regarding this matters, since your client's edicts came immediately prior to the oral argument before the California Supreme Court. I wanted to give her the benefit of the doubt, thinking that her concerns were related to the intense media attention this case has generated.
However, since the media attention has again subsided, at least for the time-being, and your client's orders have been neither rescinded nor revised, these matters merit your immediate attention.
I can think of no justification whatsoever for denying Rebekah, or other members of Robert's family, the opportunity to visit him.
Moreover, to deny Robert the ability to interact with his mother in the manner he has for many years seems is completely inconsistent with his best interests. For a very long time, Rose has prevented Robert from going outdoors to enjoy sunshine and fresh air. But to now restrict his visits with his mother, each of which are several hours in duration, in the manner outlined herein, is insupportable. (Exhibit “A” to the Declaration of Janie Hickok Siess attached hereto and filed concurrently herewith as Exhibit “3.”)
Through the responses of Rose’s counsel and Robert’s court-appointed counsel, it became clear that Rose’s motivation for restricting Florence’s visits with her son had absolutely nothing to do with either the media’s interest in the case or Robert’s best interests.
On June 17, 2001, Robert’s court-appointed counsel wrote:
The main rhetorical point of your letter to Larry Nelson is your claim that it can hardly be in Robert’s “best interests” for his wife and conservator, Rose Wendland, to put certain restrictions on the manner in which his mother, Florence, may conduct visits with him , and to entirely bar visits by Robert’s half-sister, Rebekah Vinson, as well as other family members. If there were nothing more at issue here than a purely private family matter, one not being angrily litigated in both the courts and the state and national news media, your complaint might be well taken and I probably would agree with you that one family member should not restrict the visiting rights of other family members. (Exhibit “B” to the Declaration of Janie Hickok Siess attached hereto and filed concurrently herewith as Exhibit “3” [Emphasis added].)
He accused Florence, who has lodged a declaration under penalty of perjury setting forth her observations of Robert’s abilities, of making false statements to the media, arguing that
it definitely is not in his best interests for [Robert’s] mother (or anyone else) to visit him and then go out and make false statements about his condition. Moreover, it is not in his best interests for her to utilize those false statements in her misconceived campaign to interfere with the ability of Rose, as Robert’s conservator, to make the decision about his continued medical treatment that all available evidence --- from Rose, from Robert’s children, from Robert’s brother Michael, and indeed from others - plainly indicates was and would now be his preference, i.e. to bring an end to that medical treatment. (Exhibit “B” to the Declaration of Janie Hickok Siess attached hereto and filed concurrently herewith as Exhibit “3.”)
Rose’s counsel responded on June 20, 2001. As is equally apparent from his correspondence, Rose’s orders concerning Florence’s visits with her son have no relationship to and are, in fact, in direct contravention of her duties as Robert’s conservator. Rose’s directives have no basis whatsoever in a concern for Robert’s best interests, but, rather, represent an attempt to punish Robert for the fact that the parties to this proceeding dispute the level of his awareness, his abilities, etc. by denying him access to his family members, especially his mother, and reducing the amount of stimulation that Robert, a cognitively disabled individual, receives during visits. Her counsel states, with regard to restricting Florence’s visits to Robert’s hospital room::
[T]he outrageousness of her claims about Robert’s functional abilities increases when he is taken elsewhere.
. . .
However, Rose retains the right to withdraw visiting privileges from anyone at any time for behavior contrary to Robert’s interests, such as publicly claiming that he can perform tasks that Dr. Kass and the facility personnel state that he cannot do. (Exhibit “C” to the Declaration of Janie Hickok Siess attached hereto and filed concurrently herewith as Exhibit “3” [Emphasis added].)
Judge Mc Natt was unmoved and abandoned his obligation to take action, despite being prevented with irrefutable evidence that the conservator herein, Rose, has taken and continues to take action that is plainly contrary to the best interests of the cosnervatee.
On Friday, July 13, 2001, Florence was barred, along with Rebekah, from visiting Robert.
On Saturday, July 14, 2001, Florence visited with Robert, but noted that his condition had greatly deteriorated since Wednesday, July 11, 2001.
Rebekah and the remainder of Robert’s family members continue to be barred by Rose from visiting with him.
Petitioners contend that Rose has grossly abused her authority as Robert’s conservator by failing to act in accordance with Robert’s best interests by permitting him to have frequent and unfettered visits with his family members, restricting his visits with his mother, and failing and refusing, without justification, to let his family members know precisely what Robert’s present medical condition is, as well as disclose sufficient information to allow them to ascertain whether the medical care and treatment that he is receiving is adequate, appropriate, and consistent with his best interests. Because of Rose’s failure to conduct herself in manner consistent with California law, and the San Joaquin County Superior Court’s failure to assert its jurisdiction to oversee, manage, and control the conservatorship in the manner required law, Robert’s very life is in danger. Florence and Rebekah have no recourse but to seek assistance from this tribunal and, accordingly, they seek the relief enumerated in the Prayer below.
By this verified petition, FLORENCE WENDLAND alleges:
Petitioners herein the Objectors/Cross-Petitioners in Conservatorship of Wendland, San Joaquin County Superior Court Case No. 65669.
If called as witnesses, I could and would testify competently to the truth of all matters herein alleged, except as to those matters alleged upon information and belief and, as to those matters, I believe them to be true.
I am the mother of the Conservatee herein, ROBERT WENDLAND (hereinafter “Robert”).
Real Party in Interest is ROSE WENDLAND, Petitioner in the underlying San Joaquin County Superior Court proceedings, and Robert’s wife and conservator.
Since Robert sustained injuries in September 1993, I have consistently visited him both at San Joaquin General Hospital and Lodi Memorial Hospital - West (hereinafter “the Hospital”). I ride the bus to the Hospital at least three (3) days per week. Each time I visit, I spend several hours with Robert. I have only missed my visits with Robert when my own ill health has prevented me from going to the Hospital to see him.
Rose has not allowed me to take Robert outside to the Hospital courtyard since this lawsuit began in approximately July 1995. Before that, I was able to take him out to the courtyard in his wheelchair where I would read, sing, and talk to him.
Until June 1, 2001, my visits with Robert have always taken place inside the Hospital, but have not been confined to Robert’s hospital room. For instance, I wheeled Robert around the corridors of the Hospital. We would go into a room in the Hospital that I refer to as the “quiet room” where I could read, sing and talk to Robert. I have also gone to the multi-purpose room with Robert where he and other patients participate in various activities.
Robert responds to me when I arrive at the Hospital. I believe that he recognizes me. He responds not only to the sound of my voice, but also when I ask him to do things. For instance, I ask him, “Do you want to kiss my hand, Robert?” and he takes my hand to his lips and kisses it.. I will say to him, “Robert, can I kiss your hand?” and he will hold his hand up to my lips and allow me to kiss it. He takes my hand and squeezes it.
I have seen him move both his right arm and right leg, even though Rose contends that he is completely paralyzed on that side.
Robert has different facial expressions and shows what I believe to be varying emotions. For instance, sometimes he looks very frustrated, as though he is trying to talk and say something to me but he just can’t. I reassure and encourage him.
Robert cries. As recently as yesterday, July 11, 2001, when I was present in Robert’s room, I observed tears running down his face. I talked to him, telling him “It will be all right, Robert. It will all be all right.” As he listened to me, he seemed to get more peaceful, and he stopped crying. In the years since his accident, I have seen Robert cry numerous times.
I believe that Robert understands things that are said to him. For instance, I have been with Robert at the Hospital on more than one occasion when someone has mentioned this legal proceeding in his presence. His eyes got very big and he seemed to become agitated and upset. In order to calm him down, I stroke his hair and his face, and reassure him that “no one is trying to hurt you, Robert.” He responds to me with his facial expressions, and becomes calm again.
I have observed Robert in the multi-purpose room, bowling with the other patients. I have seen him aim and throw the ball. He bowls from his wheelchair and the game is set up in the multi-purpose room in such as way as to accommodate his disability. He has a trophy in his hospital room recognizing him as the best bowler at the Hospital.
I purchased and keep a “shape-sorter” type of game in Robert’s hospital room. It requires Robert to place different colored and shaped pegs into the matching slots. He seemed to enjoy that activity and can do it successfully. There is just one peg that he has trouble with. But after he works at it for a bit, he manages to get that peg into the slot, as well. He has been seen doing it by members of the Hospital’s staff engaging in this activity.
I have on numerous occasions observed Robert responding appropriately to the Hospital staff as they care for him. For instance, when one of the staff asks him to raise his arm so that they can help him get his shirt on or off, he does so.
I have observed Robert respond to members of the Hospital staff as they enter his room. Not too long ago, a gentleman came in with whom I am not acquainted, but it seemed to me that Robert recognized him. He said, “Hello, Robert” and, as he moved toward Robert’s bed, he held out his hand to Robert. Robert reached up with his left hand and shook the gentleman’s hand.
I firmly believe that Robert recognizes me. Recently, I was ill and did not get to the Hospital to visit Robert for a few days. The next time I went to visit Robert, he did not look at me when I first entered his room and he seemed angry with me. I asked him, “Robert, are you upset that I wasn’t here visiting you for a few days? I’m sorry. I was sick and I couldn’t come to see you.” Robert began crying as I spoke to him. After a few moments, and I explained my absence to him, he became calm again, stopped crying and responded to me as he normally does (as described herein).
On or about, Friday, June 1, 2001, I arrived at the Hospital to visit Robert and was immediately taken into the office of the Hospital’s nursing supervisor/administrator. She told me that Rose had ordered that no one but me would be allowed to visit Robert, including my daughter, Rebekah.
She also told me that I would no longer be allowed to visit Robert outside of his hospital room, therefore, I could no longer push him around the Hospital corridors in his wheelchair, go to the “quiet room” or multi-purpose room with him, etc.
Since I was told about these new restrictions just two (2) days after the argument in the California Supreme Court, I thought that Rose was just concerned about the publicity this case has attracted and, as soon as it died down, I would be allow to visit with Robert in the manner that I always have.
I was hospitalized during the week of July 2, 2001 and, because of my illness, did not get to visit Robert for about a week and a half.
On July 11, 2001, when I arrived at the Hospital, I noticed the staff looking at me strangely. When I went into Robert’s room, I found him in his hospital bed with additional tubes in his throat, chest, etc. Robert was “clammy” to the touch and seemed to be having trouble breathing. He tried to cough and seemed too weak. I tried to encourage him, saying “Robert, you can do it. Try hard.” But he couldn’t.
Finding Robert in this condition made me extremely upset, distressed, and worried.
I believe that, even in his weakened condition, he recognized me yesterday. He still responded to me. He took my hand and squeezed it, and held it in his own hand on the side of the bed. He started to cry as I talked to him, and tried to comfort him.
I asked the nurses what was wrong with Robert. They told me that they couldn’t tell me anything about his condition, and that I would have to talk to Rose. I asked if I could speak with his doctor, Dr. Kass. They told me that he was out of town and a different doctor was caring for Robert, but that I could not talk to him about Robert’s condition.
A member of the Hospital’s staff named Linda told me that Rose has issued new orders to the Hospital:
I am not to be given any information about Robert’s condition;
Rebekah is not, under any circumstances, to be allowed to visit Robert.
If I question the nurses or doctors about Robert’s condition, Rose will cut off my visits with Robert completely; and
If I discuss this situation with anyone at all, Rose will stop me from visiting my son.
This is not the first time that Rose has threatened to stop me from visiting my son. In January 2001, both Rose and I were interviewed by “Good Morning, America.” After the interview was aired, I am informed, believe, and hereupon allege that Rose threatened to stop me from visiting Robert because she was unhappy about the things I said in the interview.
On July 11, 2001, Rebekah arrived at the Hospital shortly after I got there and was told that she could not even come into the lobby to talk with me. I had to go out to the parking lot to talk to her.
I was not allowed to visit Robert at all on Friday, July 13, 2001. I was told that I could see him the next day.
On Saturday, July 14, 2001, I went to the hospital and was permitted to see Robert, however, I was horrified to see that his condition had worsened significantly. Robert was much weaker than when I last saw him on Wednesday, July 11, 2001. His breathing was even more labored. He was not as responsive to me, although he did still appear to recognize me and he took my hand and squeezed it. His squeeze was much weaker than on Wednesday, July 11, 2001.
I also noticed that there was a bag connected to an i.v. in Robert’s room and the label on the bag said “morphine.” That bag was not there on Wednesday, July 11, 2001.
Since discovering Robert in his weakened condition on July 11, 2001, I have been upset, distraught, and sick with worry about my son’s health and well-being. I love him and I do not want any harm to come to him. As his mother, and a party to this lawsuit, I feel that I have a right to know what is happening to him. I know that there is something seriously wrong with Robert and I am afraid that he could die at any time.
I implore this court to hear this Petition on an emergency basis and issue appropriate orders to the San Joaquin County Superior Court so that I may ascertain precisely what is wrong with and happening to my son, and take whatever additional legal action, if any, I deem necessary and appropriate in order to protect him and preserve his life.
I implore this court to direct Rose to allow me to visit with my son in an unfettered fashion, as I have since he was injured nearly eight (8) years ago, and to allow the remaining members of our family, especially Rebekah, but Robert’s other siblings, nieces and nephews, etc. to visit with him. I do not believe that it is in Robert’s best interest to be cut off and isolated from his family members.
I am informed, believe and thereupon allege that I am the only member of Robert’s family who visits him regularly. I am also informed, believe and thereupon allege, as stated above, that no one else performs the activities I have described here with him, e.g. wheeling him around the Hospital corridors, singing to him, reading to him, stroking his hair, engaging in activities such as the “shape-sorter” game, etc. Surely it must be in Robert’s best interests to continue to receive this type of care and treatment from me, his mother, when his wife and children have openly told the media that they do not visit Robert. I have no reason to disbelieve their statements.
I am informed, believe and hereupon allege that Robert’s court-appointed counsel, James Braden, has made disparaging remarks about me, stating that, with regard to Robert’s abilities, etc., I am “either a bald-faced liar or delusions.” I am not lying about or exaggerating my descriptions of Robert’s abilities, the activities I have observed him engaging in, or the manner(s) in which he has responded to me since sustaining his injuries. Moreover, I have never met or spoken with Mr. Braden, and am informed, believe, and hereupon allege that he has never communicated a request, through my counsel of record, to meet with me or any other members of my family.
Exhibits "1” through “5” are incorporated herein by this reference.
By this verified petition, REBEKAH VINSON alleges:
Petitioners herein the Objectors/Cross-Petitioners in Conservatorship of Wendland, San Joaquin County Superior Court Case No. 65669.
If called as witnesses, I could and would testify competently to the truth of all matters herein alleged, except as to those matters alleged upon information and belief and, as to those matters, I believe them to be true.
I am the sister of the Conservatee herein, ROBERT WENDLAND (hereinafter “Robert”).
Robert’s conservator, ROSE WENDLAND (hereinafter “Rose”) has prohibited me from visiting with Robert at all. In fact, a few weeks ago, when I attempted to visit him at Lodi Memorial Hospital - West, I was told by hospital personnel that, in accordance with Rose’s directive, I could not even be in the public lobby of the hospital for the purpose of waiting for my mother to come out of Robert’s room or speaking with her. I was told to wait for and/or speak with my mother in the hospital parking lot.
On Saturday, July 15, 2001, I drove my mother to the hospital so that she could visit Robert. I waited for her in the hospital parking lot.
I observed one of our other brothers, Michael Hofer (hereinafter “Michael” - not a party to this proceeding), at the hospital, along with his wife and son. I am informed, believe and hereupon allege that Michael, his wife and children, had not, prior to Saturday, July 15, 2001, made it their practice to visit Robert for at least several years. Thus, I was very surprised to see them at the hospital.
Michael spoke with me briefly in the hospital parking lot. He told me that he and his family were scheduled to go out of town, but they delayed their departure, “under the circumstances.”
I told Michael that I was greatly upset by and did not believe that Rose’s act of barring me from visiting Robert is “fair” and also told him that it is “not right that Mama (Florence) has to go through this alone.” I told Michael that I feel I should be in the hospital with my mother when she visits Robert so as to help her cope with the situation.
Michael told me that he intended to speak with Rose and attempt to get her to grant permission for me and other members of our family to see Robert so that we will have “a chance to say [our] good-byes.”
Michaels’ statement has only added to the upset, frustration, worry, grief, and aggravation that I have been feeling since Rose has barred me from visiting with my brother.
I am convinced, based upon my mother’s observations and Michael’s statements, that Robert is dying and we, his family, are being prohibited from spending precious time with him. I am also concerned that Rose is not assuring that Robert receives adequate and appropriate medical care and treatment, given her past history of attempting to bring about the end of Robert’s life without any consideration for the fact that my mother, I, and other members of our family were visiting Robert regularly --- a fact of which she was well aware --- and our belief that such action would not only be contrary to Robert’s best interests, but also inconsistent with Robert’s desires.
I heard Rose’s counsel of record, Lawrence J. Nelson, tell the media yesterday, Saturday, June 14, 2001, that Rose does not consider my mother and myself to be Robert’s “family” and that she is “tired of” our “interfering” in Robert’s life. I so not believe that Rose’s statements demonstrate any concern for Robert’s best interests.
I implore this court to hear this Petition on an emergency basis and issue appropriate orders to the San Joaquin County Superior Court so that I may ascertain precisely what is wrong with and happening to my brother, and take whatever additional legal action, if any, I deem necessary and appropriate in order to protect him and preserve his life.
I implore this court to direct Rose to allow me to visit with my brother in an unfettered fashion. I do not believe that it is in Robert’s best interest to be cut off and isolated from his family members.
WHEREFORE, Petitioners FLORENCE WENDLAND and REBEKAH VINSON pray that this Court:
Either (a) issue a peremptory write of mandate directing Respondent San Joaquin County Superior Court to set aside and vacate its order “declining” Petitioners Ex Parte Petition for Instructions and grant all relief requested therein, in addition to issuing an injunction preventing Rose Wendland, in the event of Robert Wendland’s death, from disposing of his remains prior to the completion of an autopsy to be performed for the purpose of ascertaining the cause of his death; or (b) issue an alternative writ, on an emergency basis, directing Respondent San Joaquin County Superior Court to show cause forthwith why it should not be so directed, and upon return to the alternative writ, issue a peremptory writ as set forth in subparagraph (a) above: and
JANIE HICKOK SIESS,
Attorney for Petitioners FLORENCE
WENDLAND and REBEKAH VINSON
I, FLORENCE WENDLAND, declare as follows:
I am ROBERT WENDLAND’s mother and one of the Petitioners herein. I have read the foregoing Petition for Writ of Mandate and know its contents. The facts alleged in the Petition are true to my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on July 15, 2001 at Lodi, California.
I, REBEKAH VINSON, declare as follows:
I am ROBERT WENDLAND’s sister and one of the Petitioners herein. I have read the foregoing Petition for Writ of Mandate and know its contents. The facts alleged in the Petition are true to my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on July 15, 2001 at Lodi, California.
DECLARATION OF JANIE HICKOK SIESS
REGARDING UNAVAILABILITY OF TRANSCRIPT
OF SUPERIOR COURT PROCEEDINGS
AND SUMMARY OF THOSE PROCEEDINGS
I, JANIE HICKOK SIESS, declare:
I am an attorney at law duly licensed to practice before all the courts of the State of California and the attorney of record for Petitioners herein, FLORENCE WENDLAND (hereinafter “Florence”) and REBEKAH VINSON (hereinafter “Rebekah”).
If called as a witness I would testify competently to the truth of all matters set forth therein, except as to those matters alleged upon information and believe and, as to those matters, I believe them to be true.
On July 12, 2001, the San Joaquin County Superior Court, the Honorable Bob W. McNatt presiding, conducted a hearing on the merits of Florence and Rebekah’s Ex Parte Petition for Instructions. The hearing took place in Judge McNatt’s chambers. There was no court reporter present, therefore, no transcript can be provided for this Court’s review.
Also present were Lawrence J. Nelson (hereinafter “Nelson”), counsel for Conservator ROSE WENDLAND (hereinafter “Rose”), and Conservatee ROBERT WENDLAND’s (hereinafter “Robert”) court-appoint trial counsel, Doran Berg (hereinafter “Berg”) of the San Joaquin County Public Defender’s Office.
I urged Judge McNatt to grant Florence and Rebekah’s Petition, explaining to him the condition that Florence had discovered Robert in when she arrived at the hospital to visit him the previous day. I also described my effort to informally resolve the present conflict between the parties, and Rose’s steadfast refusal, by and through her counsel, to provide my clients with any information concerning their son and brother, Robert.
Judge McNatt questioned whether he had authority to hear the Petition, given that the California Supreme Court has not yet issued its decision on the ultimate questions of the constitutionality of Probate Code section 2355 as applied to Robert and the standard by which a surrogate decision-maker’s determination to withdraw food and fluids from a conservatee who is not in a persistent vegetative state is to be judged. I argued to Judge McNatt that he did in fact have jurisdiction in this matter to adjudicate the current dispute and, indeed, told him that he must take jurisdiction and act.
With regard to the statutory authority under which he should act, I advised Judge McNatt that he should be governed by Probate Code section 2359 which grants him authority and imposes upon him the obligation to monitor, administer, oversee, and manage the actions of a conservator in order to assure that he/she is carrying out his fiduciary duties to the conservatee.
I told Judge McNatt that, in my estimation, Rose has abused her authority as Robert’s conservator.
Rose’s attorney argued that Rose is prohibited from providing any information to my clients about their son and brother, citing Civil Code section 56.20. Since that section relates to medical records in the employment context, I can only assume that her counsel meant to cite Civil Code section 56.10. Moreover, stated that Rose had the absolute authority as Robert’s conservator to decide who should and should not visit Robert, and that Judge McNatt had no authority or power to assess or interfere with her decisions.
Berg said little during the hearing, although she did state that if Judge McNatt were to grant Florence and Rebekah’s Petition, she would ask that the information sought only be disclosed to them pursuant to a protective order. Berg later claimed that she had “offered” to reveal the information sought by my clients to them subject to such a protective order, however, that is not the case. Berg never used the word “offer” while we were arguing in front of Judge McNatt. Moreover, I had no opportunity to accept any purported “offer” from Berg because Judge McNatt denied the Petition outright.
Judge McNatt concluded that this matter involved a “discovery” dispute and advised me to lodge a fully noticed “post-trial discovery motion.” I clearly and unequivocally told Judge McNatt that there was no time to lodge such a motion because, before he could hear it, “Robert could be dead.” Judge McNatt did not respond.
Judge McNatt also insisted that he had no authority to grant my client’s request that my retained expert neurologist, Vincent Fortanasce, M.D., examine Robert for the purpose of ascertaining Robert’s condition, and advising me as to whether Robert’s care and treatment is adequate and appropriate. He insisted that I have presented insufficient evidence to justify such an examination and told me I would have to “bring him” more.
When I asked Judge McNatt how I could possibly go about obtaining any additional evidence without the ability to see Robert myself, gain access to his medical records, or have my expert examine Robert, he had absolutely no response.
I advised Judge McNatt that I would be lodging the instant Petition for Writ of Mandate on behalf of my clients.
Attached hereto as Exhibits 1 through 3 are true and exact copies of the documents which I presented to Judge McNatt at the July 12, 2001 hearing and caused to be filed with the San Joaquin County Superior Court on July 13, 2001.
Attached hereto as Exhibit 4 is a true and exact copy of the Order which Judge McNatt signed and handed to me at the conclusion of the July 12, 2001. I took the original document to the Clerk’s office.
Attached hereto as Exhibit 5 is a true and exact copy of correspondence I received on Sunday, July 15, 2001, from Robert’s court-appointed appellate counsel, James Braden.
Executed under penalty of perjury this 16th day of July 2001 at Stockton, California.
JANIE HICKOK SIESS
INDEX TO EXHIBITS
Exhibit 1: Ex Parte Petition for Instructions
Exhibit 2: Declaration of Florence Wendland in Support of Ex Parte Petition for Instructions
Exhibit 3: Declaration of Janie Hickok Siess in Support of Ex Parte Petition for Instructions
Exhibit 4: Order of San Joaquin County Superior Court denying relief requested in Ex Parte Petition for Instructions
Exhibit 5: Letter of July 15, 2001 from Robert’s court-appointed appellate counsel to Petitioners’ counsel