Death, life, and uncertainty: allocating the risk of error in the decision to terminate life support.

• Author: Mello, Michelle M.
• Position: In re Conservatorship of Wendland - California

In re Conservatorship of Wendland, Prob. Case No. 65669 (Cal. Super. Ct. Jan. 21, 1997 & Mar. 9, 1998), appeal pend'g, No. C029439 (Cal. Ct. App. 1998).

On September 29, 1993, forty-two-year-old Robert Wendland flipped his pickup truck on a highway in Stockton, California. The accident left him comatose with severe head injuries. After languishing in a persistent vegetative state (PVS) for sixteen months, Robert began to show signs of cognitive responsiveness. He regained the ability to pick up designated objects with his left hand, to make some voluntary movements, and occasionally to respond to yes-or-no questions. His progress leveled off, however, in mid-1995. He now exists in what physicians refer to as a "minimally conscious state" (MCS)--a condition between sapient consciousness and PVS. Although not comatose, he remains severely brain damaged, partially paralyzed, dependent upon others for all of his needs, unable to communicate, and reliant upon artificial nutrition and hydration.(1)

On at least two occasions prior to his accident, Robert told his wife, Rose, that he would not want to live in a state of incapacitation and total dependence on others. Because of Robert's previously expressed wishes and his poor prognosis, in August 1995 Rose asked his physicians to remove his feeding tube. The physicians and the hospital's bioethics committee agreed, but Robert's estranged mother and sister intervened and obtained a restraining order, arguing that Robert would not have wanted to die. Thus began four years of legal maneuvering holding Robert's life in the balance.

After a lengthy hearing, in March 1998 the court denied Rose's petition to terminate life-sustaining treatment.(2) In the first part of its bifurcated decision, the court ruled that Rose had the burden of proving through "clear and convincing" evidence that the withdrawal of artificial nutrition and hydration would be in Robert's "best interests." The court chose this "tempered best interests" standard for surrogate decisionmaking over the "substituted judgment" and "pure subjective" standards, which would have mandated that the surrogate decide on the primary or sole basis, respectively, of what the patient would have wanted. While noting that Robert's previously expressed wishes "may be included in the decisionmaking process" under the best interests standard, the court made clear that the basis for decision is "what is objectively best for the patient."(3) In its second ruling, the court found that Rose had not established by clear and convincing evidence either that Robert would have wanted to die in this situation or that the termination of life-sustaining treatment was in his best interests.(4) The court appeared troubled by its own ruling, but concluded that "if it must err, it must err on the side of caution."(5)

The Wendland court's ruling is deeply troubling, reflecting a misapprehension of the medical realities of the minimally conscious state and the legal interests that follow therefrom. Both Wendland and a factually similar Michigan case that predated it, In re Martin,(6) involved a judicial decision to err on the side of life. While the court's nearly irrebuttable presumption in favor of life may be reasonable when applied to patients in a persistent vegetative state, who cannot experience pain, suffering, or degradation, it presents a grave risk of harm to patients in a minimally conscious state, who can. Both the substantive decisionmaking standard adopted by the Wendland court--the best interests test--and the evidentiary standard--clear and convincing evidence--are unsuitable standards for decisionmaking when the patient is in a minimally conscious state.

I

The Wendland case presents a question of first impression in California, but when considered in conjunction with Martin and a recent Wisconsin case,(7) suggests "an emerging judicial trend to distinguish" PVS from MCS.(8) Wendland has significant implications for this incipient movement, as the court held that stricter standards should apply to petitions seeking to terminate life support for MCS patients than to petitions concerning PVS patients.

The question of how medical decisions for MCS patients ought to be made is likely to recur in the courts with increasing frequency because MCS is emerging as a recognized medical classification.(9) A recent conference of neurological specialists produced a consensus statement identifying MCS as a distinct clinical syndrome, different in many respects from PVS.(10) Their report defines MCS as a condition in which one or more of the following clinical features are clearly observable "on a reproducible or sustained basis": (1) following simple commands; (2) making verbal or nonverbal "yes-no" responses to questions (regardless of accuracy); (3) making intelligible verbalizations; and (4) making movements or displaying behaviors that are clearly responses to environmental stimuli.(11) In contrast, patients in PVS are permanently unconscious; they have no cognitive functioning.(12)

The most ethically significant feature of MCS is that MCS patients, unlike PVS patients, can experience pain and...