Judge Delays Decision in Right-to-Die Case by Kin

Life-sustaining medical care cannot be terminated for a comatose 92-year-old La Mesa woman without a comprehensive examination of the woman’s wishes and her medical condition, a Superior Court judge has ruled.

Judge Milton Milkes late Thursday denied a request by Helen Gary, the daughter of Anna Hirth, that he order a feeding tube removed from the elderly woman, a step that almost certainly would result in Hirth’s death.

Though Gary and Hirth’s other living relatives have filed statements in court saying they are certain Hirth would not want to be kept alive in a vegetative state, Milkes said it was premature to terminate her treatment.

“It is better to delay until tomorrow than to irreversibly err today,” the judge said in a written decision. “ . . . When life is the price, a measured delay is no vice.”

Lawyers say the case is the first in San Diego County in which a family has turned to the courts for help in exercising a relative’s “right to die.”

Gary’s attorney, veteran right-to-die advocate Richard Scott of Santa Monica, said Friday that Milkes had ignored years of precedent in refusing to go along with Gary’s request that her mother’s treatment be terminated.

“This is like it was the first case in the country. And it’s not,” Scott said. “In fact, it ought to be one of the last cases.” Scott said he may appeal Milkes’ ruling.

Milkes acknowledged that California courts have made it “a given” that a patient can refuse life-sustaining treatment. He cited the appellate decision earlier this year granting Elizabeth Bouvia, a Los Angeles-area woman immobilized by cerebral palsy, the right to refuse force-feeding.

And Milkes said he was not ruling out the possibility that he eventually would grant Gary’s request. “Many will suggest, and the court does not necessarily disagree, that it would be charitable to cut the thread of life for this comatose nonagenarian,” he said.

But the judge said a life-and-death decision should be made cautiously. “The issue is: how many steps do we overlook in climbing the courthouse stairs for an order to ‘pull the plug.’ ”

Hirth, incapacitated for several years by Alzheimer’s disease, fell into a coma in February after choking on some food.

Several months later, Gary asked Hirth’s physician, Dr. Allen Jay of San Diego, to take steps that would allow her to die, saying Hirth in the past had strongly objected to the idea of being kept alive artificially.

When Jay refused, Gary hired Scott, who also represents Bouvia, to file the suit seeking a court order disconnecting Hirth from life-support systems.

Jay and the Hacienda de La Mesa nursing home, where Hirth is a patient, have continued to oppose the termination of Hirth’s treatment. In court filings, they have questioned Gary’s closeness to her mother and said they were uncertain what Hirth’s wishes would be if she could speak for herself. The nursing home’s attorney noted that Gary stood to inherit a substantial sum upon her mother’s death.

In his ruling Friday, Milkes said several steps had to be taken before he could reach a final decision on Hirth’s fate:

- He will require input from San Diego attorney James Clark, who has been Hirth’s legal conservator since March, 1985. Clark so far has declined to state a position on ending Hirth’s life-support, according to court filings. Clark could not be reached Friday for comment.

- He will name an independent counsel to represent Hirth’s interests.

- Early next year, he will conduct a hearing with witnesses on the issues. Included will be a visit to the nursing home to observe Hirth’s condition.

Milkes said the case would proceed on an expedited schedule, in recognition of the hardship delays could work on all the parties.

But Scott complained that any delay was unjustified. “Every day that Mrs. Hirth is subjected to medical care and treatment she didn’t want . . . is an outrage,” he said.

He objected, too, to Milkes’ plan to visit Hirth in the nursing home. “It’s really going to be quite a spectacle,” Scott said. “My inclination is that, if the court goes, I won’t feel it necessary to attend that session out there.”

Gary, who lives in the San Fernando Valley, had little comment Friday on Milkes’ ruling, saying that a few more weeks of delay were not significant.

“That doesn’t mean anything in itself,” she said.

James McIntyre, Jay’s attorney, praised the judge’s decision.

“There needs to be a trial to determine . . . what the patient’s wishes are,” he said. “The law is that a competent person clearly can decline medical care. The question in this situation is can the court determine to its satisfaction what the patient’s wishes are or were.”