Calif. Supreme Court raises standard for withdrawing life support

Physicians should go to extra lengths to make sure a patient has left "clear and convincing" evidence of end-of-life wishes.

By Tanya Albert, amednews staff. Sept. 3, 2001.

A California Supreme Court decision last month underscored how important it is for physicians to take an extra few minutes to talk to patients about advance care directives.

The court ruled that if a patient is conscious but not terminally ill, comatose or in a persistent vegetative state, a patient's conservator may not withhold artificial nutrition and hydration without "clear and convincing" evidence that it is what the patient would want or that it is in the patient's best interest.

Case at a glance
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California joins only a handful of states to set the burden of proof so high in cases where a person hasn't named a health care proxy or hasn't left an advance directive that outlines his or her wishes. Most states require "reasonable" evidence.

Some physicians say the decision is a good one that ensures patients' wishes will be followed. Others argue the decision sets such a high standard that it essentially establishes a blanket policy that takes away an individual's right to have a conservator make a decision.

"What the court has done is cause people to be vulnerable to the worst form of suffering," said internist and medical ethicist Lawrence J. Schneiderman, MD, a professor at University of California, San Diego. "Only 10% to 20% of people have gone to the trouble of taking the formal steps to appoint a surrogate decision-maker. That means the vast majority will be kept alive."

Oakland, Calif., geriatrician James Mittelberger, MD, said patients need protections at the end of life, but that a blanket policy is not the answer.

"The standard of clear and convincing evidence establishes such a high threshold that these patients will be denied individual decisions," said Dr. Mittelberger, who is ethics committee chair at California's Alameda County Medical Center and has many patients in the category the court addressed. "This decision makes it much more important that we discuss advance directives."

The Wendland case

The California court's decision stemmed from an emotionally charged case that has been winding its way through the courts since the mid-'90s.

A 1993 truck crash left Robert Wendland conscious, but with severe mental and physical disabilities. He was able to respond to simple commands, although inconsistently, according to court documents. He needed artificial nutrition and hydration.

Wendland did not leave an advance directive and did not legally name a health care proxy.

Two years after the accident, his wife and conservator, Rose Wendland, wanted physicians to remove the feeding tube and let him die. She and others testified that Robert Wendland had said he didn't want to live in that condition.

But Robert Wendland's mother, Florence Wendland, and sister, Rebekah Vinson, objected to any attempt to remove the feeding tubes. They said Wendland was able to react when people came into the room and that he wasn't in pain.

Robert Wendland died from pneumonia just weeks before the California Supreme Court issued an opinion that came down on the side of his mother and sister. However, the decision is expected to have ramifications for patients in situations similar to Wendland's. The court said it would be an affront to someone's state constitutional right to privacy and life if a conservator was allowed to make a life-and-death decision without clear instructions about what the patient would want.

"Certainly it is possible ... that an incompetent and uncommunicative but conscious conservatee might perceive efforts to keep him alive as unwanted intrusion and the withdrawal of those efforts as a welcome relief," the court said. "But the decision to treat is reversible. The decision to withdraw treatment is not. The role of a high evidentiary standard in such a case is to adjust the risk of error to favor the less perilous result."

Victory for medicine

Pasadena, Calif., neurologist Vincent Fortanasce, MD, said the ruling will help protect physicians and patients.

Hospitals will have to make sure there is enough proof that a person would have wanted to be taken off life support to meet the "clear and convincing" requirement, he said. That burden will help prevent physicians from being sued by family members who were not consulted before such a decision was made.

The ruling also ensures that patients won't be removed from life support without a thorough consideration of what they wanted.

"It will safeguard patients from being swept under the carpet," Dr. Fortanasce said.

Janie Hickok Siess, the attorney who represented Wendland's mother and sister, said the case shows that physicians shouldn't rely on the decision of only one source when withdrawing life support.

"The most important lesson is for the person in charge to ask about other relatives," she said. "Does he have parents, siblings who might have something to say?"

ADDITIONAL INFORMATION:

Case at a glance

Conservatorship of the Person of Robert Wendland. Rose Wendland v. Florence Wendland et al.

Venue: California Supreme Court.
At issue: Whether a conservator may withhold artificial nutrition and hydration from a patient who is conscious but not terminally ill, comatose or in a persistent vegetative state and who hasn't left formal instructions about his or her wishes.
Potential impact: Some physicians say the decision ensures that patients wishes are followed and protects physicians from lawsuits; others say it establishes a blanket policy that takes away individual rights and creates the potential for a patient to be kept alive when that may not have been his or her wish.