Doctor Makes Unusual Proposal in Hirth Case

The wrangling over the legal and medical status of 92-year-old Anna Hirth took a macabre turn Thursday as her physician issued and then retracted an offer to make public photographs of the incapacitated woman, who he says is showing signs of recovery.

The offer by Dr. Allen Jay--who a day earlier was relieved by a judge of responsibility for removing the feeding tube that is keeping Hirth alive--drew a livid response from an astonished Richard Scott, the attorney representing Hirth’s daughter in San Diego’s first “right-to-die” lawsuit.

Jay called The Times early Thursday afternoon to say he was planning to photograph Hirth later in the day as she sat on a sunny veranda at the Hacienda de La Mesa nursing home, where she has lived since February, 1986, when brain damage caused by a choking incident left her in a coma.

Though San Diego County Superior Court Judge Milton Milkes reiterated his opinion Wednesday that Hirth was comatose and her recovery was unlikely, Jay insists that her incapacitation is “lightening,” saying she has begun to be able to take liquids through a syringe and to react to stimuli.

Offer of Photographs

To demonstrate the quality of Hirth’s life, Jay--who since last fall has fought the efforts of Hirth’s daughter, Helen Gary, to have her mother’s artificial feeding ended--said he wanted to make the photographs available to the media.

“My main concern is that the public be aware of her true condition,” he said.

Late in the day, however, Jay said he had not taken any pictures, though he had visited Hirth as she sat up in a wheelchair outside the La Mesa nursing home.

Jay said he did not have any film for his camera, and that he wanted to leave the nursing home as quickly as possible, because it appeared that a photographer parked across from the home was trying to shoot pictures of him and Hirth.

Instead, to document the supposed improvement in the old woman’s condition, he said he had arranged for a neurologist to re-evaluate her.

“I haven’t taken any and I wouldn’t in any way give out any photographs,” Jay said.

Attorney Shocked

The threatened photo session flabbergasted Scott, who had vowed Wednesday to appeal Milkes’ decision relieving Jay and the nursing home of responsibility for removing Hirth’s feeding tube.

Told of Jay’s plans, Scott said the release of any photographs without the permission of Gary--Hirth’s court-appointed medical conservator--would be a breach of confidentiality that could subject Jay to further court action.

Jay’s proposal, he said, was astounding.

“He wouldn’t be willing to have this patient have her constitutional rights honored. He wouldn’t be willing to take care of her if someone else did the deed,” Scott said, referring to Jay’s refusal to end Hirth’s feeding and his failure to find a doctor to take over her care. “But he is willing to breech every tenet of medical ethics by not only permitting a picture to become available, but by calling the news media and hawking the picture.”

Scott rejected the notion that Hirth’s condition was improving, and he noted that Jay’s assessment of her status had been contradicted in court by a neurological specialist who had examined her.

Gary, he said, would be pleased if her mother recovered--even if only to the incompetent state she was in before the choking incident. But the chances of that are slim, he added.

“He’s talking about her ability to be occasionally put up in a wheelchair, or that she reacts to a stethoscope,” Scott said. “Big deal. That’s really a great life--you can twitch when somebody hits you with a stethoscope.”

Scott--whose cases have established the prevailing law in California on right-to-die issues--said he plans to appeal Milkes’ ruling transferring the burden of arranging for Hirth’s death from Jay and the nursing home to Gary.