The lawyer fighting for 92-year-old Anna Hirth's right to die pledged Monday to seek criminal, civil and administrative action against her doctor for allegedly violating the La Mesa woman's privacy by talking about her condition and offering to release photographs of her to the media.
But attorney Richard Scott failed to win a temporary restraining order barring the physician, Dr. Allen Jay, from making further public comments in the case.
Instead, San Diego County Superior Court Presiding Judge Thomas Duffy gave lawyers for Jay and the nursing home where Hirth is a patient time to respond to Scott's request for an injunction. A hearing in the matter is scheduled for May 6.
Scott sought the restraining order after The Times reported Friday that Jay had offered on Thursday to release photographs of Hirth in hopes of making the public aware of what he considers her improving condition.
Since last fall, Jay has fought the efforts of Hirth's lone surviving daughter, Helen Gary, to end the artificial feeding and hydration that have kept Hirth alive since a choking incident in February, 1986, left her comatose.
The doctor's offer to make photographs of Hirth public came a day after a Superior Court judge relieved him of the burden of arranging for her death. Jay had expressed regret after the ruling Wednesday in which Judge Milton Milkes reaffirmed his finding that the elderly woman could not be kept alive against her wishes, as expressed by Gary.
Ultimately, Jay provided no pictures to The Times, explaining that he had no film in his camera when he went to the Hacienda de La Mesa nursing home Thursday afternoon and had left in a rush after discovering that a photographer appeared to be taking his picture as he examined Mrs. Hirth on an outdoor patio.
But the San Diego Tribune published a picture of Hirth and Jay in its Friday editions. And Scott said Monday that it was at least "a very remarkable coincidence" that the picture had appeared a day after Jay had discussed a photo session with The Times. He noted that Gary had provided an affidavit stating that a nurse at the La Mesa home had told her Jay, for the first time since he began treating Hirth, issued an order Thursday that the elderly woman be taken outside.
Scott said the photo session--and Jay's public comments about Hirth's conditions--would be the basis for a civil lawsuit to be filed later this week alleging that Jay had invaded Hirth's privacy and inflicted emotional distress on Gary.
Gary, Scott added, plans to ask the San Diego city attorney's office to investigate whether the San Diego physician committed a misdemeanor by inflicting an "injury" on Hirth with his actions. She also intends to file a complaint against Jay with the state Board of Medical Quality Assurance for allegedly violating Hirth's privacy, Scott said.
"This is an outrage," he said. "It's clear Dr. Jay isn't any better a winner than he is a loser."
James McIntyre, Jay's attorney, said the physician had not released any photographs or violated Hirth's privacy, and he scoffed at Scott's threats of legal action against Jay.
"Based on the information I have, I'm not aware he's violated anything," McIntyre said. "It's difficult for me to comprehend that someone on the one hand can complain about the media being overinvolved in something and then create an event like the one that occurred today."
Scott, who plans to appeal Milkes' ruling shifting the burden of arranging Hirth's care to Gary, said that Gary, in the meantime, will seek to find a doctor somewhere outside San Diego County to assume responsibility for her mother's care.
He reached an agreement with McIntyre in a courthouse hallway Monday that a neurological test Jay had arranged for Hirth will be postponed until it can be determined who has the power to authorize medical intervention for the elderly woman under existing court orders.