Conservatorship of Wendland (2001) 26 Cal.4th 519 [No. S087265, Aug. 9, 2001]

Horvitz & Levy LLP participated in Conservatorship of Wendland on a pro bono basis, representing 6 California health care organizations and 43 individual bioethicists from across the country. In Wendland, the California Supreme Court decided the following issue: "Whether a conservator of the person may withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions."

Wendland arose from a dispute between the wife and mother of Robert Wendland, who had been severely brain-damaged in an automobile accident and was being kept alive in a minimally-conscious state by tube-administered nutrition and hydration. Robert had previously told his wife, children and brother that he would never want to live "like a vegetable" or be kept alive "by machines and tubes." He did not, however, execute an advance directive for health care. His mother opposed removal of the feeding tube. While the case was pending in the California Supreme Court, Robert died of pneumonia. Several weeks later, the court ruled that proof of Robert's wishes was constitutionally required by clear and convincing evidence rather than a preponderance of the evidence. Because Robert's comments did not satisfy the higher standard of proof, they would not have supported removal of the feeding tube if he were still alive.

The amicus curiae brief filed by Horvitz & Levy LLP addressed the bioethical implications of the case and urged the court to apply the preponderance of evidence standard. (Click to see an Adobe Acrobat version of the brief.) The case received substantial national attention through the New York Times, the Wall Street Journal, People magazine, the Los Angeles Times, and various television broadcasts, including "Good Morning America" and MSNBC.

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