Right-to-Die Case Appeal Assails Judge’s Retreat

The lawyer fighting for 92-year-old Anna Hirth’s “right to die” charged Thursday that a San Diego County Superior Court judge shirked his duties by retreating from a decision ordering that the La Mesa woman’s life-sustaining care be terminated.

In a writ filed with the 4th District Court of Appeal, attorney Richard Scott alleged that Judge Milton Milkes made an “unseemly” exit from the controversy after lamenting to lawyers about the “discomfort” he felt in handling the case.

Hirth has been incapacitated since a choking incident early last year. Beginning last fall, her daughter, Helen Gary, has sought to end her mother’s artificial feeding and hydration. But Hirth’s physician, Dr. Allen Jay, has resisted on medical and ethical grounds.

Initially Backed Patient

Milkes ruled March 5 that Hirth’s wishes, as expressed by Gary, prevailed over Jay’s. He directed Jay to write an order for the removal of Hirth’s feeding tube, or else to find another doctor to write the order. Milkes also ordered that, if none could be found, the staff of the Hacienda de La Mesa nursing home must remove the tube.

But a month later, after Jay and the nursing home expressed reluctance to terminate Hirth’s care, Milkes reversed himself. He reaffirmed Hirth’s right to die. But the judge said it was up to Gary to find a doctor and health facility willing to remove the tube, and he suggested Hirth might have to leave San Diego County to escape the publicity that was discouraging health providers from assuming her care.

Appealing the revised ruling, Scott argued in the papers filed Thursday that Milkes abused his discretion by establishing Hirth’s rights and then effectively denying her any means of exercising them. Scott asserted that there were procedural flaws in Milkes’ handling of the case, and that the judge had ignored precedents in excusing Jay and the nursing home from responsibility for carrying out the wishes of Hirth and her family.

“If justice abhors the violation of a right without a remedy,” Scott wrote, “and if justice delayed is justice denied, then manifestly the justices of this honorable court need to effect an immediate rescue--of justice and of Anna Hirth.”

Emergency Review Sought

Scott asked the 4th District to order that Jay be required to write the order for removal of Hirth’s nasogastric tube and to remain as Hirth’s attending physician during the time it takes her to die.

The writ asks that the court review the case on an emergency basis, but that a decision be issued even if Hirth dies or if a doctor can be found to order the tube’s removal before the court can rule.

“This court should hear and resolve the issues presented . . . for the guidance of the medical and health-care professions--and the public, all of whom are potential patients in skilled nursing facilities, and many of whom may wish to assert rights of personal autonomy and privacy,” Scott said in the court papers.

Attorneys for Jay, the nursing home and other parties in the case have applauded Milkes’ most recent ruling. They now will file responses to Scott’s appeal.