Judge Signs Order to Let Woman Die; Appeal Is Possible

Over the lingering objections of her doctor and county lawyers, San Diego County Superior Court Judge Milton Milkes signed an order Monday allowing the removal of the feeding tube that is keeping 92-year-old Anna Hirth of La Mesa alive.

The action by Milkes makes formal his decision early this month granting a request by Hirth’s daughter that the comatose woman be allowed to exercise her “right to die.” Under the timetable it sets in motion, Hirth’s feeding is to be ended within two weeks--a step, doctors say, that will then bring about her death in another week or two.

But Hirth’s physician, Dr. Allan Jay of San Diego, is contemplating an appeal, which could change that schedule, according to his attorney, James McIntyre.

Jay has opposed the termination of Hirth’s treatment, and Milkes’ decision relieves Jay of final responsibility for ordering her feeding tube removed. Under Milkes’ ruling, Jay can find another doctor to write the order, or, if no doctor can be recruited after two weeks, the staff of the Hacienda de la Mesa nursing home can remove it on the court’s authority.

Palliative Care Ordered

However, in its final written form, Milkes’ order requires Jay to continue to provide palliative treatment for Hirth as long as she lives, if no replacement physician can be found. On account of that provision, McIntyre said Monday, Jay may ask a state appellate court to review the decision.

“Dr. Jay’s feeling is that it is forcing him to practice medicine in a certain way he doesn’t feel is correct and is forcing him to be a party to something he doesn’t want to be a party to,” McIntyre said. “He may wish to take some further step to have this order modified.”

Richard Scott, the Santa Monica attorney and right-to-life advocate who represents Hirth’s daughter, Helen Gary, said he would welcome an appellate ruling that gave the weight of precedent to Milkes’ decision. But he nonetheless pledged to fight any legal action that threatened to delay the implementation of the judge’s order.

“Though we’d like to have a Court of Appeal decision in the abstract, it’s not in Mrs. Hirth’s interest or in Mrs. Gary’s,” he said.

In issuing his formal order Monday, Milkes rejected a request by San Diego County lawyers that he narrow the scope of the immunity from discipline and prosecution that he granted to Jay and the nursing home. The county contends that Milkes overstepped his authority by barring state agencies and the district attorney’s office from taking civil, administrative or criminal action regarding the termination of Hirth’s artificial life-support systems.

Peter Lehman, chief of the appellate division of the district attorney’s office, said Monday that county lawyers would need to review the formal order to determine if the county will appeal.

In Coma for a Year

Hirth--described by family members as a feisty, domineering woman before she lost her health--has been in a coma since a choking incident in February, 1986.

She left no clear guidance for her family or physicians about whether she wished to have her life extended by artificial means. But Gary and other relatives say she hated the thought of living in a nursing home and would have wanted to be allowed to die.