Right-to-Die Move Shifted From Doctor to Daughter

Times Staff Writer

The responsibility for ending the life of 92-year-old Anna Hirth shifted dramatically Wednesday as a San Diego County Superior Court judge lifted the burden from the incapacitated woman's doctor and nursing home and left it to Hirth's daughter to arrange for her death.

Judge Milton Milkes--who last month acknowledged Hirth's "right to die" and ordered the physician or nursing home to carry it out--said he was altering his ruling to remove the case from the glare of publicity and to save Hirth's medical care-givers from being forced to violate their personal ethics.

"Families bring right-to-die cases so that a loved one may die with dignity," Milkes said, reading a written decision to a stunned courtroom, its spectator gallery nearly filled by the parties to the case, their relatives and a handful of right-to-life protesters. "When the dying process becomes a public spectacle, that purpose is no longer possible."

Santa Monica attorney Richard Scott, the right-to-die advocate who represents Hirth's daughter, Helen Gary of Calabasas Park, described Milkes decision as "incredible backpedaling" and "a sad day for the judiciary--even in El Cajon."

Heavy Publicity Cited

Scott attributed Milkes' change of heart to the heavy publicity about the case. He blamed Hirth's physician, Dr. Allen Jay, for a "bizarrely orchestrated press campaign" that discouraged other San Diego physicians from stepping forward to assume Hirth's care after Jay exercised his option under Milkes' initial order to refuse to remove her naso-gastric feeding tube.

"This is a complete rout of the judiciary by medical publicity," Scott said.

But a relieved Jay--who said he had been ready to go to jail rather than comply with a court order that he terminate Hirth's feeding and hydration--said he had given interviews on the case only after numerous doctors had turned down his request that they take over Hirth's care.

"If an untenable position was created, it was created by a person who is not publicity shy--and that's Mr. Scott," Jay said.

Scott--the lawyer for cerebral palsy victim Elizabeth Bouvia and other terminally ill persons whose cases have established the prevailing law in California on right-to-die issues--immediately vowed to appeal Milkes' revised order.

"Luckily, there are other courts available, and while we can't make promises, patients haven't lost these cases in a court of appeals for a long time," Scott said.

Ethics vs. Patient's Wish

Scott, who urged Wednesday that Jay be required to sign the order removing the tube, argued that earlier cases had clearly established that a doctor's ethics could not prevail over his patient's wish to die.

But Milkes cited a recent Massachusetts decision which held that medical providers willing to cooperate in a patient's transfer to another facility could not be obligated to remove a patient's feeding tube if such an action would violate their ethical standards.

Hirth, described by relatives as a once vibrant and feisty woman, had been deteriorating from Alzheimer's disease for many years and was totally incapacitated when she suffered brain damage following a choking incident in February, 1986.

Last fall, Gary, her only surviving child, asked Jay to terminate Hirth's artificial feeding. Gary explained that her mother, while she never executed a "living will" or other written statement of her preferences, had expressed her disgust with nursing homes and told relatives she would not choose life in one for herself.

Gary could not be reached for comment late Wednesday.

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