Nursing Home, State Health Officials Named : Right-to-Die Suit Filed for La Mesa Woman

The daughter of a comatose woman has filed suit against a La Mesa nursing home and state health officials, seeking to order personnel at the home to remove the feeding tube that is keeping her mother alive.

Helen Gary filed the suit Friday in San Diego Superior Court on behalf of her mother, Anna Hirth, 92, who has been a patient at the Hacienda De La Mesa nursing home since February.

Hirth, who lapsed into a coma shortly before she was admitted to the home, is being fed through a naso-gastral tube despite Gary’s protests that her mother would not have wanted to be kept alive by machines. Gary said she thought when Hirth entered the home that her mother’s life would not be unduly prolonged.

“I was told she would be dying within a day or two,” Gary said Monday from her home in Calabasas. “The mortuary was ready and the rabbi had been called.”

Gary said her mother had been senile for several years before she went into a coma, but that she had said many times while she was lucid that she did not want to be kept alive by life-support equipment.

After waiting nine months, Gary contacted Los Angeles attorney Richard Scott, who has handled several “right-to-die” cases. At a Nov. 26 hearing, Scott will seek a preliminary injunction ordering the removal of the feeding tube and giving Gary the right to reject medical treatment for her mother.

Although Scott would not speculate on the outcome of the preliminary hearing, he said such cases are always won eventually by the plaintiffs.

“All around the country, patients win these cases--they always do,” Scott said. “It’s not even close. You don’t lose your constitutional rights just because you lose your competence.”

Sig Diener, the nursing home’s administrator, refused to comment on the case or on the home’s policy for dealing with comatose patients.

Gary stressed that she had no complaint with the care her mother received at the home and that she was only filing suit to ensure that Hirth’s wishes will be respected. Scott said much of the blame for terminal patients being kept alive against their will rests with the state Department of Health Services, which oversees and inspects nursing homes.

“The nursing home industry is subject to the most rigorous inspections,” he said. “The health inspectors just haven’t gotten the word that circumstances are different than they were 10 or 20 years ago . . . The amount of care you get is not up to them, not up to the doctor and not up to the state Board of Health.”

Scott contends that under current practice, if a nursing home removes life-support equipment from a patient, it could later be cited for negligence by state licensing inspectors. However, Ernest Trujillo, San Diego district administrator of the licensing and certification division of the Department of Health Services, said this is not true.

“We have no objection to the removal of the (naso-gastral) tube if there is a court order and everything is legal,” Trujillo said. “Our concern is when the patient is neglected, where someone says, ‘Oh, they’re going to die anyway,’ and the patient’s needs are not met.”

A nursing home might actually welcome a lawsuit, Trujillo added, because it absolves the home of liability for complying with the wishes of the patient’s family.

Gary’s suit names as defendants Diener; Dr. Allan Jay, Hirth’s personal physician; Kenneth Kizer, director of the state Department of Health Services; Virgil Toney, deputy director of the department’s licensing and certification division, and San Diego County Dist. Atty. Edwin Miller.