Above: Robert Wendland’s mother, Florence, and sister, Rebekah, with their attorney, Janie Hickok Siess, immediately after San Joaquin County Superior Court Judge Bob McNatt announced his ruling on December 9, 1997. Judge McNatt found “no basis in California law to terminate treatment for a person in Wendland’s medical condition,” and concluded that “[i]f I have to choose life and death based on the evidence presented to me, I must err on the side of caution and choose life.” Ultimately, the California Supreme Court agreed with Judge McNatt.
The Underlying Facts of Conservatorship of Wendland
On a fateful September 1993, evening, Robert Wendland, a married 42-year-old father of three residing in Stockton, California, had been drinking when he decided to drive his pick-up to nearby Lodi. En route, the vehicle flipped off the on-ramp to Interstate 5 and he was thrown from it.
Robert’s decision changed not only his life and the lives of everyone who knew and loved him, but was the genesis of a controversial legal battle monitored internationally that spanned six years and two trips all the way to the California Supreme Court, with countless hours devoted by attorneys, judges, justices, health care providers, commentators, educators and others, as well as exorbitent legal, court and other fees and costs.
At the 1993 accident scene, Robert was found unresponsive by medical emergency personnel who transported him, unconscious, to San Joaquin General Hospital. He remained there until November of that year, when he was transferred to Lodi Memorial Hospital West’s Sub-Acute Unit, where he resided until his death in July 2001.
Robert remained comatose for approximately sixteen months. After he awoke, he became gradually more responsive to his environment and was provided various therapies (speech, physical). He continued to receive food and water through a feeding tube.
In early July 1995, Robert’s wife, Rose, and Robert’s treatment team agreed that Robert would participate in a three month program of intense therapies, designed to maximize his rehabilitative progress and abilities. Shortly thereafter, the jejunostomy tube through which Robert received food and fluids became dislodged, as it had on three previous occasions.1 Rose then determined that the feeding tube should not be reinserted, a decision that, if carried out, would have caused Robert’s death by dehydration.
Rose’s decision was presented to and scrutinized by a medical ethics committee assembled at Lodi Memorial Hospital.
Unfortunately, however, Florence Wendland, Robert’s mother, was not aware of Rose’s decision, nor was she informed that the Ethics Committee was convening. Florence and Robert’s other siblings were not given an opportunity to present their contrary views to the Ethics Committee, even though Florence and other members of Robert’s family were visiting him at Lodi Memorial Hospital on a regular basis, a fact of which Rose was fully aware.
Robert was not in a persistent vegetative state, comatose nor terminally ill, and no legal precedent supported its decision. Nonetheless, the Ethics Committee voted to allow Rose to order the removal of Robert’s feeding tube. Shockingly, the Hospital’s ombudsperson was not aware of Robert’s level of cognitive functioning — he was, for instance, able to operate a motorized wheelchair.
Were it not for an anonymous telephone call from a Lodi Memorial Hospital staff member, alerting Florence that Rose had directed Robert’s feeding tube to be removed thereby bringing about his death, Robert would have died in August 1995.
When Florence finally did learn of Robert’s fate, she immediately sought the intervention of the San Joaquin County Superior Court and obtained a Temporary Restraining Order on August 3, 1995, prohibiting the removal of Robert’s feeding tube, pending further proceedings.
Rose dramatically decreased the frequency of her contact with Robert such that by the time the case finally came to trial in late 1997, she admitted that her only visits with Robert coincided with her appearances at the hospital for meetings with Robert’s treatment team every four to six weeks. Robert’s children had stopped visiting their father altogether and, in fact, his oldest daughter, Katie, admitted that she had not seen her father perform any tasks “that impressed me.” On the day she testified, November 7, 1997, she learned for the first time that her father was able to propel a wheelchair with his foot and admitted under cross-examination that she wasn’t interested in Robert’s capabilities:
Q. Do you have any specific understanding of what things he is able to do?
A. No, and I don’t care. He’s not living the way he wants to live. So I don’t care if he pushes a wheelchair or he lifts a peg or whatever because it’s not going to change the whole scheme of things. He’s not living the way he wants to live.
In contrast, Florence visited with Robert three days each and every week, taking public transportation from her home in Stockton early in the morning and returning the same way late in the afternoon. She would spend the day pushing Robert in his wheelchair, singing and reading to him, attending activities with him in the Hospital’s multi-purpose room, etc.
The undisputed evidence and testimony introduced at trial by Rose and Robert’s own witnesses conclusively demonstrated that, following his injuries, Robert progressed substantially in his recovery, from total unconsciousness to the point that he could perform a number of neurologically complex tasks:2
- Operating a manual wheelchair (using his left hand or foot) or an electric wheelchair with the use of a joystick;
- Throwing and catching a ball with his hand;
- Kicking and stopping a ball with his foot;
- Working in a standing frame during which time he viewed himself in a mirror and was able to balance and right himself (with cues) for short periods of time, reach for/grab thera-putty in response to cuing, etc.
- Operating an augmentative communication device to give “yes” or “no” responses to questions;
- Blinking with his eyes to respond to questions such as those listed above;
- Picking up brightly colored pegs or blocks and replacing them in a tray or handing them to a therapy assistant;
- Picking up specific numbers and handing them to a therapy assistant;
- Turning pages, drawing circles and writing the letter “R” with his left (nondominant) hand, sometimes without assistance;
- Responding to verbal requests that he open his mouth and hold it open to allow oral care and hygiene; and
- Responding to verbal commands directed toward behavior management.
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 Culture of Death and Forced Exit
From time to time, Robert would pick up his mother’s hand and kiss it. She recounted that he often became distraught when she told him that their visit was at an end, crying and becoming agitated. However, she calmed him by assuring him that she would return soon and praying with him.
At trial, Rose’s retained experts likened her husband to a “trained animal.” One bioethicist opined that Robert interacted with his environment less than “some animals that I have a close friendship with.”
The late Ronald Cranford, M.D., testified that “Robert should be allowed to die so the family can grieve.”
Florence secured a victory in the trial court in December 1997. Because the case was decided on Florence’s motion for judgment, she was never required to put on her case. Instead, after Rose and the public defender appointed to represent Robert presented their cases, Florence’s counsel moved for the case to be decided, arguing that because neither of the other parties had met their burden of proof, there was no reason for the trial to continue. Judge Bob W. McNatt agreed and judgment was entered for Florence. Because Florence never called a single witness to the stand to testify, the Court never heard testimony from Robert’s brother, who stood ready to relate that he discussed a notable end-of-life decision-making case with Robert. During the course of their conversation, Robert told his brother that he would never want to die by dehydration/starvation.
Rose and the public defender appointed to represent Robert appealed to the Third District Court of Appeal which rendered a decision in 2000. The case was again appealed to the California Supreme Court which heard oral arguments on May 30, 2001.
The Supreme Court issued its ruling in August 2001, affirming the trial court’s ruling in Florence’s favor by a 6-0 vote,3 despite the fact that Robert died in July 2001, with his mother at his bedside. Click here to read the Supreme Court’s decision.
What Would You Do?
This site exists specifically to educate and assist you in answering that question: If faced with making medical treatment decisions on behalf of a loved one, how would you proceed?
And more importantly, if you were to be catastrophically injured and could not make medical treatment decisions for yourself, what would you want done by your loved ones?
Have you prepared a living will or other written document providing instruction to your loved ones regarding your wishes? Have you discussed your wishes with your family and friends? Have you appointed, in writing, a surrogate decision-maker who will make decisions about your care and treatment in the event that you are unable to communicate your desires?
Robert Wendland’s legacy is a legacy of life because his life — and his status as a disabled person — were ultimately protected by the California courts.
His legacy is also the cautionary tale contained in these pages of the extreme toll that the fight over his life extracted from all involved in that battle. It was a battle that could easily have been avoided had Robert put his wishes and desires in writing prior to suffering the injuries that forever changed his life.
So if you take nothing else away from your visit to this site, at least heed this warning: Spare your loved ones! Deliberate upon and communicate your wishes now . . . while you still can.
- Rose repeatedly told the media that Robert deliberately dislodged the tube despite the fact that 1) there was absolutely no evidence to support her assertion; and 2) if he did so, such a volitional act would indicate a level of cognitive functioning directly at odds with the picture she and her legal team otherwise painted of Robert in order to advance her case.
- Robert’s ability to perform the enumerated tasks was inconsistent, secondary to, inter alia, medical and behavioral issues.
- Justice Stanley Mosk died shortly after the oral argument.