Right-to-Die Case Judge Issues Unusual Plea to Colleagues

The judge who presided in San Diego’s first right-to-die case called on the county’s medical and bar associations Thursday to adopt guidelines that could deter emotional, highly publicized court confrontations over similar cases in the future.

“With these types of decisions, whenever they’re in court, you lose,” San Diego County Superior Court Judge Milton Milkes said after speaking to the probate law section of the San Diego County Bar Assn. “The very nature of court proceedings is that you’ve lost the privacy that’s involved for the family and the loved one.”

Since fall, Milkes has struggled with life and death issues in the case of 92-year-old Anna Hirth. Hirth’s daughter, Helen Gary, has sought a court order allowing an end to the artificial feeding and hydration that have kept the La Mesa woman alive since she was incapacitated after choking in February, 1986.

Milkes ruled last month that Gary could exercise her mother’s right to die despite the objections of Hirth’s physician, Dr. Allen Jay, who declined on medical and ethical grounds to remove the elderly woman’s feeding tube.

Responsibility Lifted

Last week, however, Milkes relieved Jay and officials of the Hacienda de La Mesa nursing home of responsibility for removing the tube, saying it was up to Gary to make arrangements for her mother’s death. He urged Gary to consider moving her mother to another county where a physician removed from the high level of publicity surrounding the case in San Diego might be found to carry out the family’s wishes. Gary plans to appeal the revised ruling.

In his speech Thursday--an unusual public appearance for a judge who still has jurisdiction in a pending case--Milkes reiterated his concern that the case has become such “a public spectacle and a media extravaganza” that it is impossible for Hirth to “die with dignity” in San Diego.

To prevent such cases from dissolving into public brouhahas, he urged the county’s organized doctors and lawyers to adopt guidelines developed by their colleagues in Los Angeles to govern the termination of life-sustaining care.

The Los Angeles guidelines--which have been widely studied nationally--urge cooperation among physicians, patients and their relatives and note that court cases have established that a patient’s desires, or those of their recognized surrogate decision makers, take priority over a physician’s preferences.

Family’s Decision

“If we can have one message, it’s that this is a decision to be made by the family and the doctor and that it should be done in a very personal and private way,” Milkes said in an interview after his speech.

Daniel W. Broderick III, president of the county bar, enthusiastically endorsed the concept of opening discussions with the San Diego Medical Society over development of guidelines for similar cases.

“This is the kind of problem that the two organizations really could derive mutual benefit from working together on, as well as benefit the public,” he said.

Dr. Jacquelin Trestrail, president of the medical society, was equally open to the prospect of discussions.

“I think it’s a great idea,” she said. “I do feel we need some guidelines. Because when it gets into court, it’s hard to deal with.”

Milkes’ public comments drew criticism from Richard Scott, the right-to-die advocate who represents Gary.

Attorney Dismayed

Scott--who is seeking an injunction to stop Jay from commenting on Hirth’s condition in public--said judges and bar officials expressed “incredulity” when he told them Milkes was giving a public address related to the case. He said he had arranged for Milkes’ remarks to be recorded and transcribed in case they had some bearing on the continuing court proceedings.

“I just hope that Judge Milkes, who on the 15th of April decried the publicity that surrounded this case and the resultant loss of dignity for Anna Hirth, will not add to what he himself has described as an adverse situation,” he said. Scott, a Santa Monica lawyer, did not attend the probate section meeting.

Milkes said he had agreed to speak to the bar group a month ago, expecting the case to have been resolved, and that he did not think his remarks were inappropriate.

The judge, who traveled to Hirth’s bedside before issuing his initial decision, told the lawyers that it was an “unhappy” experience to preside in such a case.

He recalled watching a broadcast report on a similar case three years ago with his teen-age son and discussing how unlikely it was that a right-to-die case would arise in San Diego and be assigned to his court.

“I mentioned at the time that that is probably the most difficult type of case any judge would ever be called upon to decide and I hoped it would be some judge other than me,” Milkes said. “The rest is history.”