Judge, Lawyers Fail to Resolve Hirth Impasse

A San Diego Superior Court judge held an informal meeting Sunday to resolve the lingering issue of who will assume medical care for Anna Hirth, an elderly comatose woman whose daughter has won a court order to remove a feeding tube that is keeping Hirth alive.

But despite nearly three hours of debate involving attorneys for all sides in the controversial case, the highly unusual weekend session in Judge Milton Milkes’ chambers failed to produce results.

“We didn’t get anywhere,” said James McIntyre, attorney for Hirth’s physician. “The judge was hoping he could get us all to agree on something, but everyone was standing firm.”

‘Right to Die’

Given the lack of progress, a hearing will be held Wednesday as scheduled. Milkes is expected to clarify his March 23 order that granted Hirth a so-called legal “right to die.”

Hirth, 92, fell into a coma in February, 1986, after choking on some food. The La Mesa woman has been kept alive at the Hacienda de la Mesa nursing home by a nasogastric tube.

When Hirth’s condition failed to improve, her lone surviving daughter, Helen Gary, asked the woman’s physician to remove the tube. Gary and other relatives have argued that Hirth--described as a vibrant, domineering woman until she was well into her 80s--would not wish to be kept alive in a vegetative state.

But Dr. Allen Jay, Hirth’s physician since 1979, refused to terminate the life-sustaining care, citing moral and medical reasons and arguing that Hirth still responds to touch and voices.

Gary then hired attorney Richard Scott of Santa Monica, a noted right-to-die advocate, and sought a court action to remove the tube, an action that would mean almost certain death by starvation for Hirth within a week.

Under Milkes’ decision, Jay was required to write an order directing removal of the tube by April 6 or recruit another physician to do the job. Failing that, the staff of Hacienda de la Mesa was permitted to remove the tube on the court’s authority.

It sounded simple enough, but Jay said he contacted 30 or 40 medical colleagues and was unable to find one willing to assume responsibility for Hirth’s care. Nurses at the home, meanwhile, refused to remove the tube without a doctor’s clearance out of fear that they might somehow be held legally liable for Hirth’s death.

Meanwhile, representatives from the San Diego County counsel’s office have expressed concerns about certain language in the order. Specifically, they question whether Milkes has the authority to grant immunity to the individual who removes the tube--immunity that would bar the district attorney from prosecuting anyone in connection with the case.

On Sunday, Milkes listened as the various attorneys in the case outlined their concerns. McIntyre said the judge, whose review of the case prior to a ruling included a field trip to Hirth’s bedside, indicated he did not intend to change the essence of his order allowing the care be terminated.

“He isn’t going to change his mind about the daughter’s right to make that decision,” McIntyre said. “His main concern now is the implementation of the order. Scott seems to think he can force someone to pull the tube. Obviously, we disagree and would appeal any order to that effect.”

Neither the other attorneys nor Milkes could be reached for comment Sunday.