Hirth’s Legacy: Unlocking a ‘Right-to-Die’ Policy

Three months after her death at age 92, Anna Hirth remains very much alive in the minds of San Diego’s medical and legal communities.

It took a protracted, sometimes ugly, highly public court proceeding before relatives of the La Mesa great-grandmother were able to free her from the feeding tube that had kept her alive for more than a year--alive, they said, against what would have been the wishes of the once-cantankerous, but in the end semi-comatose, Mrs. Hirth.

Now, in the wake of the court struggle, Anna Hirth’s legacy is becoming evident.

The San Diego County Bar Assn. and the San Diego County Medical Society have taken up a challenge issued by the judge who presided in the court case to try to develop mutual “right-to-die” guidelines that could make such skirmishes less traumatic in the future.

More rancorously, San Diego physicians have been treated to a caustic debate over the medical ethics of right-to-die cases in the pages of the medical society’s monthly magazine.

More Planning for Death

Many area residents, meanwhile, seem to be taking a new interest in planning for their ultimate demise, according to physicians who report a heightened awareness of issues related to aging and irreversible illness.

“What has occurred is that the case has made both the medical and the lay public much more aware of the rights that people have in enforcing their autonomy when it comes to medical decision-making,” said Dr. Albert Lizarraras, a San Diego neurosurgeon who is chairman of the bioethics committees of both the medical society and Alvarado Hospital.

“Families are very comfortable talking about it and thinking about it because of this case,” Lizarraras said. “Every time there’s disseminated knowledge, it’s better.”

Hirth died May 21 at an undisclosed location in Southern California after being removed a week before from the La Mesa nursing home where she had been a patient since complications of a choking incident in February, 1986, left her in a vegetative state.

Her daughter, Helen Gary, had gone to San Diego County Superior Court last fall, claiming Hirth would never have wanted to be kept alive artificially and asking that her mother’s physician, Dr. Allen Jay, be ordered to end the feeding and treatment that were sustaining her life.

Jay fought Gary’s request. Neither Hirth nor her sons, who put her in his care before they died, had ever indicated they would not want life-sustaining measures to be taken if the woman--whom relatives described as a feisty “Jewish mother” well into old age--suffered a serious reversal, Jay contended. He insisted, too, that Hirth showed signs of awareness and a lightening of her comatose state.

After reviewing medical testimony and visiting Hirth’s bedside, San Diego County Superior Court Judge Milton Milkes initially sided with Gary in early March. He directed Jay to write an order terminating Hirth’s nasogastric feeding--or to find another doctor to write it. If none could be found, the Hacienda de La Mesa nursing home was instructed to remove the feeding tube without a doctor’s order.

But Jay balked at carrying out the judge’s directive, saying it violated his moral principles to participate in ending Hirth’s life. No other doctor could be found to assume the task. And state officials questioned the judge’s power to immunize the nursing home from the consequences of acting without a doctor’s order. Meanwhile, demonstrators marched outside the nursing home and the El Cajon courthouse, protesting Milkes’ ruling.

In a stunning reversal, Milkes removed the burden of ending Hirth’s life from Jay’s shoulders. In mid-April, he ruled that it was up to Gary to find a way to exercise her mother’s right to die and suggested it could best be accomplished by moving Hirth out of San Diego County altogether.

Appeal Still Pending

Gary appealed the ruling--a matter still under consideration by the 4th District Court of Appeal--but nonetheless transported her mother to the undisclosed location of her death. Hirth “died with dignity,” Gary said at the time.

Since Hirth’s death, the debate over physicians’ responsibilities in similar cases has raged--angrily, at times--in the normally civil pages of San Diego Physician, the county medical society’s monthly magazine.

In an article written before Hirth’s death but published afterward, Dr. Corey Marco, president of the San Diego Medical-Legal Society, argued that doctors have no right to substitute their ethics for the health-care choices made by patients or their surrogates.

“I believe it is morally, professionally and legally unjustifiable for a physician to obstruct an incompetent, but once competent, patient’s right to have a form of treatment discontinued where a judge has ruled that was the patient’s wish when formerly competent,” wrote Marco, a La Mesa doctor who also holds a law degree.

“I believe that by continuing to impose that treatment upon his patient through appeals and media manipulation, all because of his personal convictions and belief, he fails his responsibility to his patient, to himself, his profession and society,” Marco added in an article that did not mention Jay by name.

‘Affronted and Insulted’

Jay’s bitter response appears in the magazine’s current edition. Jay wrote that he was “affronted and insulted” by Marco’s article, complaining that Marco should have assumed Hirth’s care if he wanted “to demonstrate his dedication and responsibility to his profession and society.”

Jay insisted that all individuals, including physicians, were obliged to be true to their own conscience--particularly in matters of life and death where they might otherwise be reduced to following easily reversed court orders.

“(The) frightening concept that an individual may be free from responsibility for his own actions by the response, ‘I was only following orders,’ was denied by an international tribunal at Nuremberg some 40 years ago!” Jay wrote, in a reference to the Nazi war crimes trials that followed World War II.

The testy debate spilled over into other forums. Jay challenged Marco’s appointment as chairman of the bio-ethics committee of Grossmont Hospital, but other committee members supported Marco and he remains in the post, according to Dr. Quentin Lehmann, the hospital’s chief of staff.

A calmer tone has pervaded relations between the medical and legal communities concerning the right-to-die debate.

Even before Hirth died, Milkes told a bar association meeting it was time for lawyers and doctors in San Diego to adopt some common principles that would keep right-to-die cases from evolving into egregious public disputes.

Milkes recommended trend-setting guidelines jointly adopted by the Los Angeles County bar and medical societies. The rules are based on two key principles of California law: that competent patients have the right to refuse treatment, and that surrogate decision-makers, acting in a patient’s best interest, can exercise the right-to-die option on behalf of patients unable to act for themselves.

In San Diego, the medical and legal professions are slowly wading into the task proposed by the judge.

The county bar association is establishing a committee of lawyers and doctors to review existing guidelines--both those employed by area hospitals and the Los Angeles plan--and to determine if San Diego County needs principles of its own, according to attorney Ginger Gilson, a leader in the effort.

Though decisions to terminate medical care are increasingly common, few become battles between doctors and patients or their families, Gilson said. But those that do--and then evolve into court cases--demand special attention, she added.

“The ones that get to the legal community are going to be the very complicated ones,” Gilson said. “I see it as a problem of educating or guiding the legal system in a situation that they have very little background in.”

Physician leaders plan to sit down with bar leaders as well, according to David Knetzer, executive director of the county medical society. The starting point, he expects, will be the Los Angeles County guidelines, but first the society and its lawyers are weighing some of the legal ramifications of joining in the adoption of mutual principles.

Lawyer-doctor cooperation “is going to happen,” Lizarraras vowed. As judges and others associated with right-to-die disputes have noted, he said, “the time and place to solve these sorts of problems is at the bedside, not in the courtroom.”