Judge Shifts Burden of Ending Hirth’s Life : Onus Taken From Providers of Medical Care, Given to Patient’s Daughter in Change of Ruling

The responsibility for ending the life of 92-year-old Anna Hirth shifted dramatically Wednesday when a 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.

San Diego County Superior Court 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 the providers of Hirth’s medical care 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 protesters. “When the dying process becomes a public spectacle, that purpose is no longer possible.”

‘Incredible Backpedaling’

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.”

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 nasogastric 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 requests 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.

Vows to Appeal

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,” said Scott, answering reporters’ questions over the heckling of fewer than 10 protesters who earlier had marched outside the courthouse.

Gary declined comment Wednesday.

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 after choking 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.

But Jay declined to terminate her treatment. He continued to oppose Gary’s wishes after she went to court to carry out her mother’s supposed preference, explaining that he did not believe Hirth’s comatose condition was irreversible and that he was ethically opposed to ending her life.

Sided With Daughter

Early last month, Milkes sided with Gary. After visiting Hirth in the Hacienda de La Mesa nursing home in La Mesa, he named Gary her conservator and ruled that Hirth’s wishes, as expressed by Gary, carried more weight than her physician’s moral stance.

Milkes said Jay could write an order removing Hirth’s feeding tube or find another doctor to assume her care. The judge authorized that, if no doctor could be found, the nursing home could remove the tube on his authority.

“When life has lost all function, it is not life which is extended,” he said. “Rather, it is death which receives a reprieve.”

However, Jay still balked at removing the tube--a step which doctors testified was likely to result in Hirth’s death within two weeks. He said he was unable to find another doctor to remove it. Meanwhile, the nursing home’s lawyers expressed concern that their clients would be exposed to administrative or criminal penalties if they removed the tube without a doctor’s order, despite Milkes’ ruling that they could not be held liable for their actions.

Milkes stayed his initial order April 1. And after listening to an hour of arguments Wednesday, he followed the recommendation of Jay’s attorney and shifted the burden of making arrangements for Hirth’s death onto the shoulders of her daughter, Gary, who was not present in court.

“There has to be an end to litigation, just as there is to life itself,” Milkes said. “I think the responsibility has to be on Mrs. Gary.”

He said the trust created for Hirth after the death of her son, Julius, would amply provide for her transfer to a private home or nursing center, either in San Diego or elsewhere in Southern California, and that there is no risk that Hirth would suffer psychological harm upon being moved from the La Mesa nursing home.

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 that 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.

Scott warned that Milkes’ ruling might simply transfer the conundrum to another locale. Doctors in the Los Angeles area, he said, might be just as unwilling as those in San Diego to assume responsibility for Hirth’s care.

“The defendants found to be wrong in all their contentions earlier are now relieved of all their responsibilities,” he said. “Now, it’s up to Mrs. Hirth, with the help of Mrs. Gary, to somehow go to Los Angeles.”

Jay said Milkes’ revised ruling reaffirmed the right of doctors and nurses to act in their patients’ best medical interest, while placing the burden of life-ending decisions on others, where it belonged.

“The biggest decision is that whoever is legally responsible for this individual--in this case her daughter--is responsible for her own moral decisions,” he said. “You must do it. You must take the onus upon yourself. You must dirty your hands if this particular situation applies.”

According to Jay, Hirth’s condition has “lightened” while the case has been in litigation. He said she has been able to take liquids through a syringe, hear voices and respond to touch. She spent part of the day Wednesday, he said, sitting in the sun on a patio at the La Mesa home.

“Anna Hirth was a lady I knew quite well and whose son I promised just before his death: ‘Julius, I will take care of your mother until her death,’ ” Jay said. “I feel badly that that promise cannot be carried out.”