Troubled Judge Gets No Solace From Comatose Woman

Judge Milton Milkes stood at the 92-year-old woman’s bedside. “Mrs. Hirth,” he called. “Mrs. Hirth.”

Anna Hirth, bedridden and comatose at the Hacienda de La Mesa nursing home for the last year, did not respond.

“ Kinder ,” the judge said. And again, “ kinder “--checking to see if the old woman would react to the Yiddish word for children.

Her eyes were open and her chest heaved beneath the bed linens, but Hirth did not reply.

In a step he acknowledged was “macabre,” Milkes traveled Tuesday to the La Mesa nursing home to see with his own eyes the way Hirth lives. Her daughter, Helen Gary of Calabasas Park, is asking the San Diego County Superior Court judge to allow a feeding tube to be removed from Hirth’s nose--a step, doctors say, that almost certainly will result in the death within two weeks of the once-vibrant and feisty woman.

The decision in San Diego County’s first “right to die” case is weighing heavily on Milkes, who termed his duty “awesome” Tuesday as lawyers representing Gary, Hirth, her legal conservator, her doctor, the nursing home, the state and the county wound up two days of trial in the matter at the county courthouse in El Cajon.

Just how troubling the judge finds the issues in the case was evident from a question he posed to Hirth during his two-minute visit to her small room in the well-scrubbed, cheery nursing center.

“If I were in your place,” Milkes asked, “and you were in my place, what would you decide?”

There was no sign that Hirth knew the judge was standing beside her. Milkes will have to look elsewhere for guidance before he issues his decision Thursday morning.

In the interim, he said, he will be “thinking, thinking and thinking” about Hirth’s fate.

Under questioning by the squad of lawyers, Ernest Trujillo, San Diego district administrator for the licensing branch of the state Department of Health Services, testified that guidelines in use by the state give no clear direction about how Hirth’s case should be resolved.

In their closing arguments, the opposing lawyers offered starkly different views of what Milkes should do.

Richard Scott, the noted right-to-die advocate who represents Gary, said that, because Hirth is unable to speak for herself, the judge is obliged under the law to observe the wishes of Gary and Hirth’s other relatives--all of whom have said they believe Hirth would not want her life sustained artificially.

Quoting from a series of precedent-setting cases in which he represented ill and disabled people seeking the right to end their medical treatment, Scott said a key test is whether the benefits of ongoing treatment outweigh the burdens of being kept alive.

“Your Honor saw a lady much burdened today,” he said. “She’s been burdened that way for one year, and she should be burdened no longer.”

But Jack Cooper, representing Hirth’s court-appointed conservator, James Clark, said it is not at all clear what Hirth’s desires would be were she able to express them. Her relatives’ opinions, he noted, are based in part on comments Hirth made more than a decade ago stating her distaste for life in a nursing home.

“Is her life to be terminated based upon statements she made 10 or 20 years ago?” Cooper asked. “I submit it would be improper to do so.”

Cooper, like the other lawyers opposed to Gary’s lawsuit, said that only Clark--named Hirth’s legal representative by her last surviving son before his death--has the power to ask that her life-sustaining treatments be ended. Clark, he noted, testified Monday that he is not prepared to take that step.

Attorneys representing the nursing home and Hirth’s personal physician, Dr. Allen Jay of San Diego, also asked that Hirth be kept alive. Citing their clients’ ethical and professional concerns, they asked also that, if Milkes allows Hirth’s feeding to end, they not be required to carry out the order.

“To put the people at that facility through that is putting the rights of Mrs. Gary and perhaps Mrs. Hirth above the equal rights of the people in the facility,” said Douglas Walters, who represents Hacienda de la Mesa.

Sig Diener, administrator of the family-owned nursing home, told the lawyers during their visit with the judge to Hirth’s bedside that his staff felt strongly about the case.

“Who am I supposed to protect here?” Diener wondered aloud. “Do I protect the patient? Do I protect my staff? There’s a lot of emotional feelings running through the staff here. We’ve known her for a year. I’ve heard some of the staff here refer to her as their ‘baby.’ ”

Gary’s motives were called into question by Malvina Abbott, an attorney appointed by Milkes to see that Hirth’s rights are respected. Abbott said she initially had little concern about the fact that Gary would inherit her mother’s estate but she had “second thoughts” when Gary called her last month to ask who would be paying Abbott’s fee.

“I would be delighted that my mother’s rights were going to be protected,” Abbott said. “That gave me a little pause about Mrs. Gary’s motives.”

Gary, who bristles at suggestions that her motive is anything but her mother’s best interest, reached out to grab husband William’s hand as Abbott spoke. Later, as she left the courthouse, Gary said she regrets that the case had gone to court at all.

“It’s a very difficult, painful process,” she said. “I don’t know where it should be resolved. It should have been made easier a long time ago for people like us. It’s too bad it’s come to this.”