S.D. Ruling : Woman, 92, in Coma Is Given Right to Die

Expressing confidence that he had reached a decision that was “just, given the tragedy of the circumstances,” a San Diego County Superior Court judge Thursday authorized the daughter of an aged, comatose La Mesa woman to end her mother’s life-sustaining medical care.

Judge Milton Milkes stopped short of ordering the termination of feeding and treatment for 92-year-old Anna Hirth. But in giving her daughter, Helen Gary of Calabasas Park, the power to halt her mother’s treatment, Milkes ruled that both legal precedent and human decency dictated that Hirth be allowed to die.

“When life has lost all function, it is not life which is extended,” he said in an extemporaneous, 75-minute oral decision issued at the county courthouse in El Cajon. “Rather, it is death which receives a reprieve.”

The decision follows a growing line of cases, in California and other states, establishing the power of patients--or those closest to them, if they cannot speak for themselves--to exercise the “right to die” by overruling their doctors and refusing life-sustaining care.

Gary first requested that her mother’s treatment be ended last fall, several months after a choking incident left Hirth bedridden and comatose at the Hacienda de la Mesa nursing home. She contended that Hirth--once, according to her own family’s description, a feisty, domineering Jewish mother--would not have wanted to be kept alive in such a state and had long before expressed her aversion to life in a nursing home.

But Hirth’s physician, Dr. Allen Jay of San Diego, insisted it was not medically or morally proper to end the woman’s treatment. In the absence of state guidelines for such circumstances, the nursing home operators feared they would be penalized for carrying out a right-to-die request. And Hirth’s legal conservator, attorney James Clark, said he was unprepared to contradict her doctor’s judgment.

Everyone ‘Uncomfortable’

Milkes weighed each party’s concerns in his ruling--acknowledging that everyone involved was in an “uncomfortable position”--but decided, he said, that the feelings and wishes of Hirth and Gary were paramount.

“It’s somewhat like jumping without a parachute--you can’t make a mistake,” the judge said. “But I’m sure I’m not making a mistake in this case.”

Milkes directed Jay to write a medical order ending Hirth’s treatment or find another physician to issue the order. If none can be located, Hacienda de la Mesa was authorized to remove Hirth’s feeding tube without a doctor’s order two weeks after Milkes’ ruling becomes final.

Doctors say Hirth can be expected to die within a week or two after her feeding is ended. Though Milkes said medical testimony indicated Hirth would feel no discomfort, his ruling allows care-givers to treat her with painkillers if they become necessary during her final days.

“The worst is yet to come,” Gary said after hearing Milkes’ decision. “We still have a week of a really bad time. This is not over.”

The nursing home may appeal Milkes’ ruling, according to the home’s lawyer, Douglas Walters. The judge specifically cleared the home of any liability for ending Hirth’s treatment. But in the event no doctor can be found to accept responsibility for her care, it was not clear that the home would be sheltered from penalties for providing painkillers or other medical treatment without a doctor’s order, Walters said.

“It seemed he was letting everybody but my client, the nursing home, off the hook,” Walters said.

Nonetheless, a spokesman for the nursing home industry said Milkes’ ruling set an important precedent to guide home operators in the absence of official, statewide guidelines for handling right-to-die cases.

“While we would like to follow the existing regulations, the regulations do not address this situation,” said Joe Diaz, regional director of the California Association of Health Facilities.

In testimony during a two-day hearing in the case this week, officials of the state Department of Health Services said regulations governing right-to-die decisions were being developed.

Patient Comes First

Reading from law books and yellow pads at a studied pace, Milkes said legal precedent required him to base his decision, first, on the dying patient’s preference--as best it could be perceived--and, second, on the patient’s best interest, if a preference was not evident.

Though Gary and all of Hirth’s other living relatives provided testimony saying Hirth in years past had expressed a desire not to be kept alive in a nursing home if she were gravely ill, Milkes said there were no certain indications of Hirth’s preference.

But after listening to the testimony and visiting Hirth’s bedside Monday, Milkes said he had “no doubt” Hirth’s best interests would be served by allowing her to die.

“The option available is unacceptable,” he said.

Milkes said he had not allowed his personal feelings to dictate his ruling, but the decision nonetheless reflected deep feelings and a pronounced personal touch.

The judge, for instance, turned to his personal experience to explain his conduct during a visit Tuesday to Hirth’s bedside. He spoke then to Hirth in Yiddish, the language she long ago used in talking to her mother, at one point repeating the word kinder-- Yiddish for “children”--to see how Hirth would respond.

“If any word could cause a response in a Jewish mother, it is the word kinder ,” said Milkes, who is Jewish. “I have some 57 years experience in that regard. And Mrs. Hirth could not respond.”

He explained, too, that he had empowered Gary to end her mother’s treatment, rather than make such an order himself, because he believed it was a decision for a family member to make. He noted that Clark, the conservator, was a virtual stranger to Hirth and was reluctant to take any position other than reliance on the judgment of Hirth’s doctor.

“This type of decision shouldn’t be made by a stranger,” Milkes said. “It should be made by someone who loves, who has some bonding, who has some emotional attachment to the patient.”

Milkes discounted the suggestion made by some of the opposing lawyers that Gary’s motive was colored by the $600,000 inheritance she will receive upon her mother’s death. Gary insisted she had no need for the money, and Milkes said her conduct showed no evidence of avarice.

Gary’s attorney was Richard Scott, a Santa Monica lawyer who has represented cerebral palsy patient Elizabeth Bouvia and many of the other gravely ill persons whose right-to-die cases have established key legal precedents in California.

Scott said Milkes’ ruling hewed closely to those in earlier cases. The decision, he said, should help cement the patient’s right to end medical treatment and, perhaps, deter care-givers from fighting the exercise of that right by patients and their families.

“I can now begin to hope this is the last or almost the last of these cases, because the law is clear throughout this country,” Scott said. “When there is a dispute . . . the patient’s wishes control.”