bulletOpinions BRUCE HILTON A man's last wishes (June 26, 2001 1213 a.m. EDT) -

Are lawyers, judges and mothers-in-law sometimes swayed more by emotion than by objectivity, law or love of family?   Surely not. And yet. ...There's a classic bioethics case on its way to the U.S. Supreme Court. Robert Wendland's wife and his mother are locked in a six-year legal struggle over whether he should live or die. And the truly disturbing thing is this: Many of the statements in court, like the mother-in-law's reasons for getting into the fight, are red herrings.

They're based more on our national phobias about death than on the law or the principles of medical ethics. Wendland's long, sad ordeal was in the headlines again the other day. The dispute had reached the California Supreme Court. To appreciate the questions asked by the justices, you have to go back to September, 1993, when Wendland rolled his pickup: He was 41, a successful salesman, with a wife, Rose, and three children. He loved to read to the kids and discuss the news of the day with them and Rose.

The accident left him with severe head injuries; he was in a coma 18 months. Although doctors had little hope for recovery, Rose rejected a recommendation to end life support so he could die normally.

Every day she was with him in a hospital in California's Central Valley, helping turn and massage him and reading to him as he once had to her and the children. Then, in 1995, an apparent miracle. He opened his eyes and looked around. His right side was still paralyzed. He couldn't chew or swallow, speak, walk, communicate by blinking or control body functions. He still had to get nutrition and liquids via tube. Sometimes he seemed to look at visitors but didn't speak or act as though he recognized anybody. Rose still tended to him every day.

Neurologists and physical therapists tested him again and again. Some therapists thought he responded, using his good hand to touch a red or green block for "yes" or "no." Gradually the neurologists came to believe that he couldn't reason or communicate any more. He was no more awake than he had been in the coma.

 Rose's decision.

Rose, remembering Robert's abhorrence of life on artificial support, finally agreed with the doctors' advice Let him die naturally. One time before the accident, Robert had told her - and his brother Michael - he would not want to be a 'vegetable,' dependent on artificial life support. Now he began pulling out the feeding tube. Not once, but five times. After that last attempt, Rose asked Robert's doctors to remove the tube and let him die naturally.

She was her husband's court-appointed conservator, and state law gave her the responsibility for carrying out his medical instructions - even if it meant death. Florence's decision. Florence Wendland, Robert's mother, lived in the same small town but had not seen her son for many years. Now, suddenly, she was interpreting her son's erratic movements and filing suit to stop Rose from withdrawing his artificial life support. Nobody seems to know what caused the long estrangement, but some have suggested that her lawsuit against Rose had more to do with resentment for her daughter-in-law than concern for her boy.

 In September 1995, Florence and one of her daughters won the suit. The court forbade doctors to end life support. The mother argued that Robert could understand her and was improving. She didn't deny Robert's hatred for artificial support. She just didn't think it was relevant In bioethics, ignoring a patient's wishes is a major mistake. This right, whether the patient is awake or comatose, was affirmed a decade ago by the U.S. Supreme Court.

The mother's trial court victory was overturned by a state appeals court because the judge had ruled - mistakenly - that "clear and convincing" evidence of Robert's wishes was necessary. The U.S. Supreme Court, in that same 1991 decision, gave each state the right to decide how rigorous such testimony must be. California requires only that the surrogate decision-maker act in good faith. Florence appealed to California's top court, where the justices heard the arguments a couple of weeks ago. California's decision.

The state Supreme Court will rule within three months, and whoever loses will appeal to the U.S. court. Hopes are not strong for a decision that recognizes Robert's right to refuse further treatment. Observers said the justices were uncomfortable with the life-or-death decision before them. There were questions about Robert's decision, but more of them concerned Robert's mental and physical disabilities.

 They seemed to cling to a hope that the neurological specialists were wrong. Surprisingly, in view of the state law, several justices said they needed "clear and convincing" proof of Robert's statement. Another suggested that only a written document could meet that standard. A third wondered whether allowing verbal testimony from surrogates might discourage patients from writing down their wishes. (The state already permits "verbal powers of attorney" in health decisions.)

Regardless of how the state court rules, Rose Wendland and her children hope the U.S. court will concentrate on the law - and on the ethical principles of autonomy, justice and doing good. As Robert Wendland's public defender told the California justices "This is not our case or the public's case. It is Robert's case. "What was it about life that made it worthwhile for Robert? The decision must attempt to reflect his desires."

Bruce Hilton, director of the National Center for Bioethics, has been an ethics consultant to doctors, hospitals and patients.

http//www.nandotimes.com/opinions/story/33064p-547621c.html

 

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