bullet"The California Supreme Court will hear oral arguments in the Robert Wendland case on May 30, 2001, at 9:00 AM.  I have never in my many years of sanctity of life advocacy, seen such an intense, energetic campaign to make one person dead." Wesley J. Smith, author of best seller, Culture of Death and Forced Exit


bulletWhen a Coma Isn't One
bulletDON'T LET MY SON DIE, INTERVIEW
bulletNew twist in cases over right to die
Patient is in twilight state, not in a coma

bulletJustices struggle with new right-to-die case State high court hearing on barely conscious man
bulletCourt wrestles with life, death
bulletSTATEMENT FROM NOT DEAD YET: Disability Advocates Protest Starvation of Disabled Man
bulletJOURNEY WITH JAY by JAN PEINE

Robert Wendland update

bulletWhen a Coma Isn't One
BY JEFFREY RESSNER/LODI  March 26, 2001

Curled up on her living-room sofa, Rose Wendland speaks about her husband Robert in loving, admiring words--"very handsome, always well groomed." She describes the Stockton, Calif., auto-parts salesman as a self- taught mechanical whiz with an insatiable appetite for books. He was a devoted father, she says, who enjoyed nothing more than taking their three kids boating on the nearby Stockton delta.

Of course, that was more than seven years ago, before the night he got wildly drunk and flipped his Dodge Ram truck, bringing his seemingly sweet life to a crashing halt. Today Wendland, 48, lies in Lodi Memorial Hospital, kept alive only by a tube that delivers liquid nourishment to his broken body. Severely brain damaged and with his left side paralyzed, he cannot walk, talk, eat or communicate meaningful thoughts, if indeed he still has any. And though he is occasionally able to perform a simple, repeated command like a zombie--tossing a ball or placing a color-coded peg into a hole--he will never again be the husband, the father or the man he once was.

But he can still be a son. While Rose Wendland wants doctors to remove her husband's feeding tube and let him die, Robert's mother Florence, 78, is fighting to keep him alive. After several legal battles, the two will next face each other in California's Supreme Court, where the case could produce a landmark decision about whether the extremely incapacitated--some doctors use the term "minimally conscious"--can be denied medical care. Dr. Vincent Fortanasce, a leading Los Angeles neurologist who examined Wendland, believes that the ruling could affect hundreds of thousands of brain- injured people who need feeding tubes to survive.

Robert's case would be simpler if he were in worse shape. Since the groundbreaking New Jersey ruling that in 1976 allowed the parents of coma victim Karen Ann Quinlan to shut off her respirator, California and other states have permitted families to remove life support from comatose or terminally ill patients. Wendland is neither. Given the precedent the Wendland case may set, right-to-life and disability-rights activists have lined up behind Florence, while bioethics professionals and the American Civil Liberties Union are supporting Rose.

 "This is a vital public-policy case," declares Wesley Smith, author of Culture of Death: The Assault on Medical Ethics in America. "We're talking about how far you can go in taking away food and water from someone just because they're cognitively disabled."

"I'm not trying to make decisions for other people. This was Robert's choice," responds Rose, who says her husband once remarked that he would rather die than be unable to care for his family. Meanwhile, despite his doctors' hopeless prognosis, Florence believes that with enough therapy and prayer, her son can eventually make progress. "The Lord could have taken him the night of the accident, but he didn't," she says. "He has a purpose for Robert--to help keep other people from having their tubes pulled." Counters Rose: "The good Lord did take him. We're keeping him alive artificially."

Bad blood between wife and mother-in-law is nothing new. But the rancor is highly public in this case. Rose and her children (ages 22, 20 and 16) complain that Florence suddenly reappeared after years of distance from Robert. Florence denies there was any estrangement and snipes in return that Robert stayed with his wife only for their children's sake.

Florence says she is prepared to take her case to the U.S. Supreme Court. "I've got more spunk in my finger than some young people have in their entire bodies," she says. Rose is equally resolute about defending what she believes Robert would want. Both sides agree on one thing, however: Had Robert kept a legal document outlining his specific wishes in the event of a catastrophic accident, it would have provided a much needed voice for the sad, crippled man who now lies silent.

When a Coma Isn't One  BY JEFFREY RESSNER/LODI TIME.com Monday, March 26, 2001

source: http://www.time.com/time/magazine/printout/0,8816,102966,00.html

http://www.thetimes.co.uk/article/0,,7-64879,00.html

bulletWEDNESDAY JANUARY 10 2001
Interview
Don't let my son die
Robert Wendland is kept alive by a feeding tube. His wife
says that he should be allowed to die. His mother wants to
ensure that he lives. Grace Bradberry reports

 The California Supreme Court has heard some unusual cases in its time, but the latest to come before it rates as one of the most extraordinary. Pitched against each other are a wife who says her hospitalised husband’s feeding tube should be removed so that he can be left to starve to death — his suffering eased only by painkillers — and her husband’s mother, who argues that he must be allowed to live.

Seven years ago, Robert Wendland had had a few drinks over dinner when he decided to take his pick-up truck for a spin so he could listen to his new Paul McCartney tape. As he drove along the side roads of central California, with his seatbelt off, the 40-year-old salesman was making a U-turn on a motorway slip road when the truck skidded off the hard shoulder, rolling end over end.

Robert was thrown out, paralysing his right side and plunging him into a coma. For 16 months he lay, kept alive only by a feeding tube. Sometimes his body twitched and his fingers moved, and it appeared he might be fighting to live. Then he began to show signs of awareness, moving his hand or his leg when asked.

That was in 1995. More than five years have gone by and the inner world of Robert Wendland remains a mystery. On a good day, he can hold a cup, use a paintbrush and push a ball down a ramp. His right eye stares vacantly, but his left appears to track. Doctors say that he feels pain, but they do not know how much and no one knows whether he is capable of mental anguish, though one doctor who examined him wrote, hauntingly: “I hope that his level of awareness is low.”

Some experts describe him as “minimally conscious”, drifting in a grey area between coma and consciousness. Others say that he is conscious but brain-damaged. What matters more, however, is what members of his family think — and they too disagree.

When his wife, Rose Wendland, looks at her now 48-year-old husband, she sees “a shell”. For her, Robert “died seven years ago”. The man who sits in a hospital room, dressed in nappies, fed by a tube, cannot recognise her or their three children, she says.

But when Robert’s mother, Florence Wendland, looks at him, she sees a man who is still there. She detects “moods” — contentment and frustration, sadness and even affection. “I’ll ask him, can I hold his hand and he’ll give me his hand,” she says. “I’ll say, ‘Can I kiss your hand?’ and he’ll put his hand up to my mouth and I’ll say, ‘Can you kiss my hand?’ and he’ll put my hand up to his mouth and he’ll kiss it.”

Rose wants Robert’s feeding tube removed so that he can die. She says that this is what he would have wanted and is the only merciful course. Florence wants him to live, horrified at the prospect of her son dying of starvation and thirst, regardless of what steps are taken to ease his passing. This stark conflict is now a landmark case before the California Supreme Court.

While Robert’s doctors, bio-ethicists and the American Civil Liberties Union all back Rose, anti-euthanasia campaigners and disabled-rights activists side with Florence, on the grounds that allowing Robert Wendland to die could set a legal precedent that would allow relatives to “put down” Alzheimer’s patients and the severely disabled.

The battle began in 1995 after Robert pulled out his feeding tube for the fourth time. His wife took this as a sign that he did not want to live. As the legal conservator, she had the right to withhold medical treatment, including tube feeding, if she was acting in good faith based on medical advice and the wishes he had expressed. But someone at the hospital tipped off Florence who, together with one of her daughters, sought a restraining order. The case went before a judge, who denied Rose the right to remove the feeding tube.

“I don’t know at this point whether here today I am preserving Robert’s life or I am sentencing him to death,” said the clearly anguished Judge Bob McNatt.

Florence is troubled by no such doubts. Aged 78, she lives alone in a small flat in Stockton, the central California town where her son also lived. Three times a week, this frail lady takes the bus to the next town, and spends as much as five hours at a time with the second of her eight children. Her relationship with her son may now be closer than it was before the accident. Rose has said that Florence and Robert were estranged, though Florence denies this, insisting that he visited regularly, keeping this secret from his wife. To begin with, Robert’s accident brought the family together. “We all thought he’d come out of it and get better. And he did pull out of it, and got better,” adds his mother.

At around the time that Rose gave up hope for her husband, so did the hospital, ending the one-on-one therapy that he was receiving. Although he cannot walk or talk, he now takes part in group activities, painting plant pots, bowling and, soon, a game in which he will attempt to hit a golf ball through a hole. Recently he painted a picture that Florence held up on the TV show Good Morning America. “It’s like a pool of fish and then a bunch of little fish swimming around it,” interprets Florence — though to the uninvolved observer it appears entirely abstract.

Florence has also bought her son a game in which he fits coloured shapes through coloured holes, mirroring a game with coloured pegs that his therapists once used. “I’ll say, ‘Here’s the orange one — where does it go?’ And he’ll put it in the orange hole. Then I’ll say, ‘Here’s the triangle one’, and he’ll put it in the right hole. He always has a problem with the red one, but finally he gets it.”

“Of course, she thinks it’s childish,” says Florence. Rose would not be interviewed for this article, though she has spoken extensively to the US media, where a public battle is being fought between mother and daughter-in-law. Recently, Rose took a Los Angeles Times reporter to visit her husband. A nurse pointed out the shaped blocks, and added that Robert could do the puzzle. “A one-year-old can do that,” Rose apparently responded. “Am I happy that maybe he can recognise a nurse who has been here for two years and not his children? Not his wife? Now what does that mean? That his Mom sits there playing those blocks with him? No. It doesn’t mean anything. It disgusts me, to tell you the truth.”

Rose, married to Robert for 22 years, and her three children — Katie, 22, Kerrie, 20, and Robert, 15 — virtually moved into Robert’s hospital room for the first year after the accident. But they no longer visit regularly. Florence’s belief in her son’s cognitive abilities goes beyond anything that even the most optimistic doctors have suggested. She reads to him, mostly from spiritual books — “Cos he was always interested in the Bible”. She thinks he has some understanding.

“The other day a man walked into his hospital room and he said, ‘Hello Robert, how are you doing?’ He held out his hand and Robert took his hand. You can’t tell me that he’s semi-conscious because he hears and knows what somebody asks him.

“If we’re talking about his case, he’ll sit there and listen, he’ll take in every word. He’s not dumb. He knows what we’re talking about. Sometimes it seems like he wants to give up. He hits with his hand, because he gets frustrated that he can’t say what he wants to say. Then he gets angry. Gosh, I . . .” she then falters — “It just gets me so upset too. I say, ‘Oh Robert, if you could only talk, this wouldn’t be like this’. I’m not giving up; God performs a lot of miracles, and all of a sudden he can have Robert say a word.”

Florence is not a regular churchgoer, but her reasons for fighting to keep Robert alive are firmly religious. “The Lord giveth and the Lord taketh away,” she tells me. “The Lord could have taken Robert during any of this time. Why didn’t He? Because He wasn’t ready. When the time comes and He’s ready to take Robert, then I’ll say goodbye with the good feeling that he’ll meet his maker.”

Rose, though, believes that Robert should have met his maker already, and has been prevented from doing so by artificial medical means. But the real case she makes is that Robert would not have wanted to exist like this. “What he said was, if I could not be a father, a husband or provider, then why even exist?” she told Good Morning America.

Three months before Robert’s accident, her father died and it was Rose who had to make the decision to turn off the life support. Robert apparently told her that she had done the right thing. There was also, apparently, a conversation just a week before Robert’s accident when he expressed the view that he would not want to be kept alive if severely incapacitated. But Rose has also said that neither she nor her children can go on with their lives while Robert remains on life support. “You know, we live with this daily. Every second of the day,” she told Good Morning America.

Florence, who brought up her eight children without the help of their three fathers, does not see what is stopping her daughter-in-law from getting on with her life. “Why doesn’t she get a divorce and get on with her life? Nobody would begrudge her that. We know she’s a young woman,” — Rose is 43 — “She can’t live alone the rest of her life. I have no hard feelings against Rosie. But I will not stand by and let her put him to death.”

If the feeding tubes were to be removed, Robert Wendland’s death would be grim, according to Florence’s lawyer, Janie Siess, who conjured up a chilling picture in court. Doctors do not know how much pain he feels, so he would either be heavily medicated or put back into a coma. “The longest case on record of dehydration and starvation death is 21 days,” says Siess, who is sitting in on the interview. “That’s three weeks during which your organs are shutting down and your skin is cracking and your tongue is drying up and cracking and bleeding.”

“They put a little ice on it,” says Florence.

Three years ago, one of Robert’s doctors asked him a series of questions. He responded by pointing or pushing bars designated “yes” or “no”. The doctor asked, “Do you have pain?” Robert indicated “yes”. “Do you want more therapy?” The answer was “no”. “Do you want to die?” He did not respond.

Did Robert understand the questions and his own responses? The doctor didn’t know. In any case, the patient could not answer the one question that everyone is asking — should he live or die?

After the interview, Florence is driven into Lodi, where Robert is in hospital. No family member is available to accompany her. So she walks in alone, to her solitary vigil by the bedside of a son who may or may not know that she is there, and who might, or might not, agree with what she is doing.

SOURCE http://www.thetimes.co.uk/article/0,,7-64879,00.html

bullet New twist in cases over right to die
Patient is in twilight state, not in a coma


Harriet Chiang, Chronicle Legal Affairs Writer   Wednesday, May 30, 2001

Eight years after a horrific car accident, Robert Wendland spends his days in a Lodi hospital, unable to speak or walk, a shadow of his former self.

His eyes are open, and he is conscious, but the accident left the former salesman severely brain-damaged and paralyzed on his right side. At one point, he could toss a ball and maneuver his wheelchair. But now he just sits as nurses and visitors drift in and out.

Wendland's wife and three children want to remove the tube that provides him with life-sustaining food and water. But his mother and sister insist that he continue to receive treatment.

What began as a bitter family fight has escalated into a major right-to-die case with national repercussions. The two sides will argue their case today before the California Supreme Court, which must decide one of the most agonizing legal issues: whether to allow the removal of life-sustaining treatment for those who some doctors describe as "minimally conscious."

What distinguishes this case is that Wendland, 49, is not in a coma or a persistent vegetative state. Instead, he lingers in a kind of twilight, conscious but incompetent to make his own decisions. Legal experts say a ruling in this gray area of the law could affect stroke victims, Alzheimer's patients and hundreds of thousands of others suffering from degenerative mental diseases.

"It's profoundly important to every one of us," said Jon Eisenberg, an Oakland lawyer who is representing the California Medical Association as well as several other medical groups and 43 bioethicists. "We are all going to grow old," he said, "and many of us are going to have to make end-of-life decisions for ourselves or for our family members."

As far as Rose Wendland is concerned, her husband died Sept. 29, 1993. But because of the legal battle, "there's no peace for him yet," she said. He doesn't smile, she said, and there is no sign that he can think or respond. "This man is in living hell."

His mother disagrees. Florence Wendland believes that she is doing the right thing by fighting to keep him alive. "Would you want someone to put your son to death?" said the 79-year-old mother of eight, who sings and reads to her son during weekly visits. "I enjoy his company. I'm sure he enjoys mine."

QUINLAN CASE REPERCUSSIONS

The right to die became a national issue in 1976 when a New Jersey court allowed the parents of coma patient Karen Ann Quinlan to order the removal of a respirator that allowed her to breathe.

Since then, courts -- including those in California -- have allowed life- sustaining treatments for patients in a coma-like state to be stopped.

Lawmakers have also recognized that those who are competent have a fundamental right to refuse medical treatment. In the 1980s, state courts allowed quadriplegic Elizabeth Bouvia to refuse a feeding tube.

In 1993, the California Supreme Court, ruling in the case of a quadriplegic prisoner, held unanimously that mentally competent adults have a fundamental right to refuse life-saving medical treatment.

But the Wendland case looks at the critical question of when a guardian can withdraw medical treatment for a patient who is conscious but no longer able to make his own decisions.

Generally, judges have been reluctant to decide these intensely private issues. "I suspect that decisions like this get made fairly frequently without anybody ever going to court," said Alan Meisel, who teaches bioethics at the University of Pittsburgh and wrote "The Right to Die."

For Rose Wendland, the decision came almost two years after her husband's accident. He had been in a coma for 16 months following the rollover crash of his pickup after he had made a U-turn on an on-ramp. His blood alcohol level was twice the legal limit. Eventually, he regained consciousness and could draw the letter "R" and other limited acts, but only after painful and exhausting physical therapy, she said.

In 1995, Rose Wendland asked that her husband's feeding tube, which had come out several times, not be reinserted. The hospital's ethics committee agreed to her request.

But Wendland's mother received an anonymous call from a hospital staff member, telling her of the plan. Florence Wendland went to court and obtained a restraining order preventing her son's wife from taking any action.

JUDGE UN-PERSUADED

Rose Wendland said that her husband had told her before the accident that he would not want to be kept alive under the circumstances he now faced. Three months before the crash, her father had died after his life support machine was turned off at the family's request. Five days before his accident, she said, Robert Wendland told her, "Don't let that happen to me. Just let me go."

His brother testified that Robert Wendland had made similar comments to him.

But a trial judge ruled in favor of Wendland's mother, saying that his wife had failed to prove by "clear and convincing evidence" -- a high standard of proof -- that Robert would have wanted to die.

A state appeals court overturned that decision in February 2000, ruling that the law requires only that Rose Wendland, as her husband's conservator, act in good faith.

In similar cases, courts in Michigan and Wisconsin have refused to allow the guardians of neurologically damaged patients to withdraw life-sustaining treatment. "In these cases, the courts want a higher level of certainty that this really was what the patient wanted," Meisel said.

But those states had no laws governing the rights of conservators at the time.

In their appeal to the California Supreme Court, Florence and her daughter Rebekah Vinson are challenging a California law that specifically gives conservators the authority to make medical decisions for a patient as long as they act in good faith based upon medical advice.

 

CALIFORNIA LAW CHANGED

The Legislature amended the law effective July 1, 2000, requiring the conservator to follow any clear wishes of the patient.

The mother and sister say that the law leaves mentally disabled people at the mercy of conservators, and they warn of a "slippery slope" if the high court allows Rose Wendland to withdraw her husband's feeding tube.

"We're talking about a surrogate making a decision that literally results in the death of someone else," said Janie Hickok Siess, Florence Wendland's attorney. Several advocacy groups for the mentally disabled have filed briefs in support of the mother and daughter.

But Rose Wendland's attorneys, backed by bioethics and medical groups, say that she met the burden of proof and is fulfilling her husband's wishes.

"There's nothing left of the man," said her attorney Lawrence Nelson. "It's a tragic case."

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/05/30/MN111974.DTL

bulletJustices struggle with new right-to-die case State high court hearing on barely conscious man

Harriet Chiang, Chronicle Legal Affairs Writer May 30, 2001

The California Supreme Court yesterday struggled with the prospect of allowing the wife of a severely brain-damaged Stockton man to remove the feeding tube that keeps him alive.

During an hourlong hearing, several of the justices appeared troubled by the facts of the case and suggested that they needed "clear and convincing" proof that Robert Wendland would have wanted to die under these circumstances.

"Given the gravity and irreversibility of the consequences," the law requires a higher standard of proof, said Justice Kathryn Mickle Werdegar.

Wendland has been unable to walk or communicate since he was severely injured in a 1993 car accident. His wife and three children want to remove the feeding tube that keeps him alive. His mother and sister want to continue the treatment.

This right-to-die case has drawn national attention because it involves a man who is not in a coma or a persistent vegetative state, but has suffered devastating brain damage. In prior cases, courts have allowed the family of patients in coma-like states to stop life support treatment.

While Robert Wendland sat in a Lodi hospital 100 miles away, the justices in a San Francisco courtroom seemed to have a difficult time with an unenviable task. The justices seemed to focus on the uncertainty of Robert Wendland's condition.

"Is he competent?" Justice Marvin Baxter asked Janie Hickok Siess, who represents Wendland's mother. She said he wasn't competent, but insisted he was conscious and aware.

Siess urged the court to "raise the bar" and require Rose Wendland to provide "clear and convincing evidence" of her husband's wishes.

"Is that a standard that can actually be met" unless there is a clear, written directive, asked Justice Janice Rogers Brown.

Siess said that people could talk to family members before becoming ill and express feelings about potential medical conditions.

James Braden, the patient's lawyer, said there was ample evidence that his client would have wanted to die rather than live in his current condition, which he said bordered on a persistent vegetative state.

Rose Wendland has testified that her husband told her shortly before the accident that he would not want to be kept alive if he was on life support. But a trial judge ruled against her, saying that she failed to provide "clear and convincing evidence" of his wishes.

A state appeals court overturned that decision, ruling that the law required only that Rose Wendland, as her husband's conservator, act in good faith.

But at yesterday's hearing, both Chief Justice Ronald George and Baxter suggested that people should put their wishes in writing in the event that they were unable to make their own decisions later. If the court allowed Robert Wendland's wife to withdraw the feeding tube based solely on remarks he made, George questioned whether that would discourage people from leaving written directives.

Jon Eisenberg, an Oakland lawyer representing several medical organizations and 43 bioethicists, said only 20 percent of patients prepared written instructions.

George said he was concerned that a patient "who can think and feel" might have his fate decided by a guardian with a financial interest.

Justice Joyce Kennard followed the same line of thinking, noting that at one point since the accident, Robert Wendland could respond to questions through the use of a board with "yes" and "no" buttons.

After the hearing, Eisenberg said he was "very concerned" that the judges didn't fully understand Robert Wendland's condition.

He said that a videotape showed that Robert Wendland responded to questions at random and was just as likely to answer "yes" to questions that he should say "no" to. "I wish mightily that this court looks very carefully at the record in this case to get a true understanding of this man's condition," he said.

Rose Wendland's attorney, Lawrence Nelson, told reporters that it was impossible for people to predict the exact medical conditions they might face some day. "If they require clear and convincing evidence of the patient's wishes, it would condemn millions of Americans to be attached to life support systems," Nelson said.

Siess, representing the patient's mother, was cautiously optimistic after the arguments. "I think they went really well," she said. She said that Florence Wendland, 78, felt that a trip to San Francisco was too much for her and preferred to spend the day with her son in his Lodi hospital room.

Several representatives of disability groups attended the hearing, saying that a decision in favor of Wendland's wife would allow people with disabilities to be killed.

But Rose Wendland and her three children said that they were not trying to impose their decision on anyone else. "I can't speak for other people who have disabilities," said Katie Wendland, 22, the oldest of the patient's children. Her father, she said, "is not there, and he's not going to be. It's his decision we're honoring."

A decision is expected in 90 days.

Each side said that it would appeal its case to the U.S. Supreme Court if it lost.  Source http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/05/31/MN193830.DTL

bulletCourt wrestles with life, death

Stockton man subject of right-to-die case

May 31, 2001

 Josh Richman STAFF WRITER

SAN FRANCISCO -- The case of a severely brain-damaged Stockton man drove the California Supreme Court on Wednesday into uncharted legal territory surrounding the right to die.

Robert Wendland, 49, presents the court with a sticky circumstance mainly because he's not in the "persistent vegetative state" usually underlying such cases. The former auto-parts salesman, profoundly hurt in a 1993 wreck in which he was driving drunk, is somewhat conscious but unable to talk, walk, control his bowels or feed himself.

His wife, Rose, and mother, Florence, disagree on whether he can communicate meaningfully or even recognize his family, and so they've been embroiled in this legal battle since 1995. Rose claims her husband would want her to withdraw his feeding and water tubes and let him die, while Florence wants to keep her son alive.

The courtroom was packed Wednesday because this case's implications are the subject of heated national debate; bioethicists and the American Civil Liberties Union support Rose, while disabled-rights and right-to-life advocates support Florence.

At issue now is how much evidence Rose, as her husband's legal conservator, must present to support her decision to let Robert die.

The justices' questions indicated they are grappling with whether she must make her case with a "preponderance of the evidence," meaning there's more persuasive evidence that Robert would want to die than that he wouldn't; or "clear and convincing evidence," a stricter standard falling somewhere between a preponderance and the strictest "beyond a reasonable doubt" standard used in criminal cases.

Janie Hickok Siess, Florence's attorney, argued that although state law seems to apply the preponderance standard, that won't withstand the constitutional challenge posed by Robert's fundamental right to life. Dying by dehydration and starvation takes three painful weeks, she said, and that musn't be inflicted upon someone without very clear evidence of his wishes, particularly when he's still capable of some limited thought and feeling.

"Mr. Chief Justice, the court must raise the bar," Siess said, urging use of the clear-and-convincing standard as a San Joaquin County Superior Court judge did.

Yet Rose and Robert's brother have testified Robert, before the wreck, had said he wouldn't want to live dependent upon tubes and wearing diapers, unable to interact with people and lead an active life. The state Court of Appeal said Rose's good-faith consideration of these statements, plus agreement from Lodi Memorial Hospital doctors, are enough to satisfy the state law's demands.

James M. Braden, Robert's court-appointed attorney, told the court Wednesday he's sure Robert would agree. "I believe he would find intolerable a much better condition than he's in now."

Lawrence Nelson, Rose's attorney, said forcing the clear-and-convincing evidence standard upon such a case is "unrealistic, it's unfair.

"It denies every American the right to have a best-interest argument made on their behalf" by those closest to them, he said.

The court should rule in the next few months.

Outside the courtroom, Wesley J. Smith of Oakland, author of "Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder," said he hopes the court forces a deeper inquiry into Robert's best interests.

"I don't think we can do anything less than that," he said. "There is so much at stake here."

Siess said Rose wants "to move the line over to where you can dehydrate and starve conscious folks" based solely on Robert's pre-wreck, offhand comments, some of which testimony indicates he may have made while drunk or hung over. Robert's life still has meaning, Siess claimed; he can paint, react to people and even take part in a sort of wheelchair bowling.

But Nelson blasted Siess's "unceasing exaggeration of Robert's cognitive abilities," noting Robert responds to the simplest commands only with intense, repeated coaching, an automaton doing nothing of his own volition.

"I think she was deceptive."

Rose's children -- Katie, 22; Kerrie, 20; and Robert, 16 -- said they're sure their father wouldn't want to live this way.

"That's not my father," said Kerrie, adding he doesn't even seem to recognize her. "There are some sparks flying but nothing's really going."

Disability-rights activists from across the nation turned out to support Florence's fight, but Rose said this isn't their affair.

"This has nothing to do with me," she added. "This has to do with Robert and Robert's wishes."

Source: http://search.newschoice.com/Display.asp?story=d:/index/newsarchives/angtr/fpg/20010531/902474_t2as531.txt&searchtext=Wendland&puid=557&deal=no

bulletDisability Advocates Protest Starvation of Disabled Man

 Disability Advocates Protest Starvation of Disabled Man Disability advocates representing several national organizations will be convening at the California Supreme Court at 9:00 am, May 30th, to join in opposition to the latest legal attempt to kill a disabled man through court authorized starvation.

Robert Wendland became brain-injured in 1993 as the result of an automobile accident. After 16 months in a coma, he woke up. Robert Wendland operates his own wheelchair, indicates "yes" and "no" on a communication board, paints, and plays wheelchair bowling. As a result of his brain injury, he uses a feeding tube to get the nutrition and water he needs to live.

Rose Wendland, his wife, wants Robert's feeding tube removed so he can die of starvation. According to her, Robert "already died" years ago. As Robert's court-appointed guardian, Rose claims that a new state law (Probate Code 2355, amended in July, 2000) gives her the authority to withdraw food and water even if he expressly objects. Fortunately for Robert, his sister and mother disagree. If it weren't for them, he'd be dead already.Nine national disability organizations and one university affiliated program filed an amicus brief in the California Supreme Court.

The brief asserts that killing Robert Wendland through starvation violates his civil rights under the Americans with Disabilities Act and his right to due process under the constitution.

Robert Wendland did not leave an advanced directive or other "clear and convincing evidence" of his wishes. The new statute eliminates the need for such directives. "No one ever heard of this statute before the Wendland Case," says local activist Jessie Lorenz, "This new change in the law means that any guardian can deny life-saving treatment - including food and water - based on their own beliefs about the value of a cognitively disabled person's life." Lorenz also pointed out that this power extends to non-family guardians, like the state, who may have financial conflicts of interest and a prejudicial view of the "worth" of the lives of people with severe cognitive disabilities. Amy Hasbrouck, a visually impaired attorney who drafted much of the brief says that people need to look beyond individual cases and realize the scope of public policies such as Probate Code 2355. "This case and its final determination can have lethal impact on thousands of people in California who are under guardianship."

Diane Coleman also collaborated on the amicus brief. She is founder and president of Not Dead Yet, a national disability rights organization that leads the disability community's opposition to assisted suicide and euthanasia. She agrees with Hasbrouck and asserts that the possible consequences on a national level are staggering. "There are millions of people with head injuries, labels of mental retardation and Alzheimers across the nation. They could all become subject to medical killing through removal of treatment - including food and water - regardless of their own wishes in the matter."

The case is expected to go on to the U.S. Supreme Court. Not Dead Yet, a national disability rights organization that leads the disability community's opposition to assisted suicide and euthanasia, filed the amicus brief opposing the attempt to starve Robert Wendland and challenging the constitutionality of Probate Code 2355.

The following organizations signed onto the brief filed by Not Dead Yet: ADAPT, Self-Advocates Becoming Empowered, The Arc, Brain Injury Association, Inc., Center for Self-Determination, The Center for Human Policy at Syracuse University, the Disability Rights Center, the National Council on Independent Living, the National Spinal Cord Injury Association, and TASH.

bulletTo read NOT DEAD YET's brief, go to:

http://www.notdeadyet.org/docs/wendbrief.html

NOT DEAD YET Main page: http://www.notdeadyet.org/

bulletJourney With Jay ~ a book by Jan Peine

"They wanted his organs for transplant purposes as there was no real hope of his recovery. They said if he lived, he would never walk or talk...."

Journey with Jay published by Vantage Press Inc. in New York.  December 20, 2000 which can be ordered at http://www.amazon.com/exec/obidos/ASIN/0533133351/o/qid=992204210/sr=2-1/ref=aps_sr_b_1_1/104-2049521-4585512ISBN:  780533 133352.

Jacket of the book

Do miracles still occur today? Jan Peine, a rehabilitation specialist was skeptical until she was asked to work with Jay Basselin, an extraordinary Christian man who was recovering from a catastrophic brain injury. Jay's uncanny survival, which could be deemed miraculous, left him with a rare amnesia, which deprived him of recognizing everyday food items, and even his own reflection in the mirror. Jan's challenge was to teach this gentle giant, who was now limited in mental function and void of all memories, how to function in today's world. She did not realize that in the end he would teach her more! Jay's colorful antics, which are delightfully innocent, should amuse the most somber reader, while his unsettling, inquisitive questions regarding our society evoke soul-searching answers. This is the intriguing, true story of Jay Basselin's recovery---an inspirational must for anyone who doubts the healing power of faith.

In a letter to CHN, author Jan Peine wrote:  "I have written to most of our media here in Birmingham to apprise them of the [Robert]Wendland situation. I am hopeful that Jay's story can make a difference in how others perceive disability. " She also said, "As a rehabilitation specialist, I am appalled about the pending California supreme court case involving brain injured Robert Wendland. This is a very personal situation for me, as I worked one on one for two years with another brain injured patient who had similar deficits as Mr. Wendland. His name is Jay Basselin and his recovery became miraculous and is chronicled in a book that I have written which was recently released. It is entitled Journey with Jay and it details Jay's recovery process from coma to work resumption. Our society is a paradox. On the one hand we continue to develop the medical technology to salvage broken bodies, and on the other hand, we devise creative ways to terminate life once we have successfully sustained it. More and more, we are evolving to a society that assumes one has to be perfect in order to have purpose. This simply is not so, and Jay Basselin's life and recovery proves this point. The Basselin family and I want to help the Robert Wendland's of the world."

CHN has in its archives various media reports concerning Robert Wendland ~please contact us for more information

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