Conservatorship of Wendland
| Decision Date | 24 February 2000 |
| Docket Number | No. C029439.,C029439. |
| Citation | 78 Cal.App.4th 517,93 Cal.Rptr.2d 550 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CONSERVATORSHIP OF the Person of Robert WENDLAND Rose Wendland, Petitioner and Appellant, v. Florence Wendland et al. Objectors and Respondents; Robert Wendland, Appellant. |
Law Offices of Lawrence J. Nelson and Lawrence J. Nelson, San Francisco, for Petitioner and Appellant Rose Wendland.
Law Offices of James Braden, James Braden, San Francisco, and James T. Diamond, Jr., for Appellant Robert Wendland.
Catherine I. Hanson and Alice P. Mead, San Francisco, for California Medical Association as Amici Curiae on behalf of Appellants.
Vicki Michel, Terri D. Keville, Los Angeles, Stanton J. Price, Ila Rothschild and Cynthia Fruchtman, Beverly Hills, for Los Angeles County Medical Association and Los Angeles County Bar Association Joint Committee on Biomedical Ethics, and Los Angeles County Bar Association Bioethics Committee as Amici Curiae on behalf of Appellants.
Brown, Hall, Shore & McKinley and Janie Hickok Siess, Stockton, for Objectors and Respondents.
Wesley J. Smith, Los Angeles, for Coalition of Concerned Medical Professionals as Amici Curiae on behalf of Objectors and Respondents.
Rita L. Marker, for Ethics and Advocacy Task Force of the Nursing Home Action Group as Amici Curiae on behalf of Objectors and Respondents.
Max Lapertosa and Stephen F. Gold, Philadelphia, PA, for Not Dead Yet as Amici Curiae on behalf of Objectors and Respondents.
This is the hardest case.
A 1993 motor vehicle accident left 42-year-old Robert Wendland severely brain damaged and cognitively impaired. He is conscious and sometimes able to respond to simple commands, but he is totally dependent on others for his care and is unable to speak or otherwise communicate consistently. He receives life-sustaining nutrition and hydration through a feeding tube.
The probate court appointed Robert's wife, Rose,1 as conservator of his person under the Probate Code and determined Robert lacks capacity to make his own health care decisions. (Prob.Code, § 1800 et seq.)2 However, the court expressly withheld from Rose the authority to remove Robert's feeding tube.
Rose sought authorization from the court to remove the feeding tube, thereby allowing Robert to die (which Rose asserted is what Robert would choose if he were competent to make his own decision). Robert's counsel supported Rose's position. Robert's mother (Florence) and sister (Rebekah Vinson) objected.3
After presentation of Rose's and Robert's cases in chief, the probate court granted Florence's motion for judgment (Code Civ. Proc., § 631.8), concluding that although Robert had a right to refuse the feeding tube, a right which survives his incompetence, Rose had failed to show by clear and convincing evidence that Robert, if competent, would want the feeding tube removed, or that withdrawal of the tube was in his best interests.
Rose and Robert appeal, arguing the probate court failed to apply or erroneously construed the controlling statute—section 2355—and imposed too high a burden on Rose.4 We shall conclude the probate court erred in requiring Rose to prove that Robert, while competent, expressed a desire to die in these circumstances and in substituting its own judgment concerning Robert's best interests, rather than limiting itself to a determination of whether the conservator considered Robert's best interests and met the other statutory requirements of section 2355.5 We shall therefore reverse the judgment and remand for further proceedings in the probate court.
We preface our recitation of the facts with the caveat that this case comes to us on appeal from the grant of a motion for judgment (Code Civ. Proc., § 631.8); hence, respondents have not yet had an opportunity to present their case to the probate court.
Rose and Robert were married in 1978 and have three children. On September 29, 1993, Robert, then age 42, was involved in a single-vehicle accident. He was in a coma for 16 months, during which Rose visited him in the hospital every day.
In January 1995, Robert came out of the coma, but he remains severely cognitively impaired. He is paralyzed on the right side and is unable to communicate consistently, feed himself, or control his bowels or bladder. He wears diapers. He receives food and fluids through a feeding tube. By late spring of 1995, he was interacting with his environment, but minimally and inconsistently. At his highest level of functioning, he has been able to do (with repeated prompting and cuing [pointing] by therapists) such activities as grasp and release a ball, operate an electric wheelchair with a "joystick," move himself in a manual wheelchair with his left hand or foot, balance himself momentarily in a "standing frame" while grabbing and pulling "thera-putty," draw the letter "R," and choose and replace requested color blocks out of several color choices. Each activity is performed only after excruciatingly repetitive prompting and cuing by the therapists. Robert never smiles. What little emotion he does show is negative and combative. Since he has cognitive function, he is not considered to be in a "persistent vegetative state" (hereafter PVS).6
Between January and July 1995, Robert's feeding tube (which at the time was a "jejunostomy" tube surgically inserted through the abdomen wall and stapled or sewn to the inside of the small intestine) became dislodged several times. The first three times, Rose agreed to surgical reinsertion of the tube (a procedure requiring general anesthesia). The fourth time—in July 1995—Rose refused to consent to reinsertion of the tube, stating she believed Robert would not want to go through it again. The attending physician, Dr. Ronald Kass, nevertheless inserted a nasogastric feeding tube (later replaced with a "PEG" tube)7 in order to maintain the status quo pending review by the hospital ethics committee.
The 20-member ethics committee determined it had no objection to Rose ordering withdrawal of the nutrition/hydration tubes.8 Dr. Kass agreed. The San Joaquin County patient ombudsman (whose job it is to look after the rights of patients in long-term care facilities) supported Rose's decision, though she (the ombudsman) had not spoken to respondents.9
Florence learned through an anonymous telephone call of the plan to remove the tube, and she prevented it by obtaining a temporary restraining order from the probate court in early August 1995.
On August 8, 1995, Rose petitioned the court to be appointed conservator for the person of her husband due to his inability to provide for his own personal needs. (§ 1801.) The petition also asserted Robert lacked capacity to give informed consent concerning medical treatment. The petition sought express court authorization for Rose to have Robert's life-sustaining treatment (the nutrition/hydration tube) withdrawn. Respondents, as "objectors," opposed the petition.
On September 11, 1995, after a hearing, the probate court granted Rose's petition to be appointed conservator, but expressly denied her the authority to remove life-sustaining treatment from Robert. The court continued the matter.
The probate court denied Florence's request that independent counsel be appointed for Robert. The matter came to this court for review, and we held in Wendland v. Superior Court (1996) 49 Cal.App.4th 44, 56 Cal.Rptr.2d 595, that Robert was entitled to appointed counsel.
After counsel was appointed for Robert, Rose continued to pursue court approval to withdraw Robert's life-sustaining treatment. Robert's trial counsel and appellate counsel support Rose's position.
The probate court bifurcated the case. In the first phase, the court made the following legal rulings:
1. The evidentiary standard for the conservator's withdrawal of the feeding tube from a conscious but cognitively impaired conservatee should be "clear and convincing evidence," because a decision to end the life of a human being who is not PVS should require no less a compelling showing than that applied to other forms of involuntary medical treatment.
2. Where the incompetent person has left no explicit pre-incapacity instructions covering the situation, and family members disagree, the burden of producing evidence was on the parties seeking to terminate the life of the patient who is not PVS.
3. The appropriate test was the "best interests" test, but with consideration of subjective elements, such as the previously stated wishes of the patient.
In its written decision underlying the foregoing order, the probate court stated, among other things, its belief that section 2355 when enacted did not contemplate the current state of medical science. The court recognized:
In the second part of the bifurcated case, an evidentiary hearing took place between October and December 1997, during which appellants presented witnesses supportive of Rose's decision to withdraw life-sustaining treatment from Robert. The evidence included the following:
As already noted, Robert is sometimes able to perform simple tasks with repeated prompting.
Doctors testified that, to the highest degree of medical certainty, Robert will never be able to feed himself, bathe himself, control his bladder or bowels, or communicate verbally or in writing. Neurologist Dr. Donald Kobrin said Robert sometimes turns his head to look at the television, wipes his mouth, looks at people passing by, and repositions his left leg. Dr. Kobrin said...
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