By Dave Andrusko
This one is on me. Until a reader emailed me a link today, I did not know that the family of Jahi McMath cleared an important hurdle last month thanks to a First Appellate Court ruling that Nailah Winkfield can try to prove her now nearly 16-year-old daughter is alive.
As odd as that might sound at first to newcomers to the case, that is the core of the battle over Jahi whose doctors described as brain-dead in 2013.
UCSF Benioff Children’s Hospital Oakland and Dr. Frederick Rosen took the position that for purposes of the civil trial, Jahi should be recognized as deceased because she was declared legally dead in January 2014.
The court ruled against them.
“Because the trial court found the record at the pleading stage was inadequate [to determine Jahi’s death] and ‘may require a more developed factual record,’ we conclude, under these circumstances, that this matter should not be resolved at the pleading stage,” the court ordered, according to Matthias Gafni of the Mercury News.
Gafni’s story quoted extensively from a firm believer in “medical futility”:
Now, Jahi’s family must present evidence she is alive, said Thaddeus Pope, the director of the Health Law Institute at the Mitchell Hamline School of Law in Minnesota.
“The defendants get to take discovery … which will include examination of Jahi by their own (medical) experts,” said Pope, who has been following Jahi’s case.
The plaintiffs will also take depositions of the hospital workers from that December 2013 day at the Oakland hospital, he said.
NRL News Today has run well over a dozen stories about Jahi who has been the focus of a tremendous legal battle ever since she suffered cardiac arrest following December 9, 2013, surgery to remove her tonsils, adenoids, and extra sinus tissue to treat pediatric obstructive sleep apnea. Three days later she was diagnosed as brain-dead and a titanic legal battle began in earnest when UCSF Benioff Children’s Hospital in Oakland sought to remove Jahi from a ventilator over the family’s vigorous objections.
Following a series of court hearings, during which the hospital never backed down from its insistence that “This is a deceased young woman,” a deal was brokered during a hearing before Alameda Superior Court Judge Evelio Grillo. It allowed Ms. Winkfield to remove her daughter from the hospital as long as she assumed “full responsibility.”
Bioethicist Wesley J. Smith has followed Jahi’s case closely and NRL News Today has reposted his posts. Probably the most significant fact to date is that “her body has apparently not deteriorated as generally occurs in a brain death situation,” as Wesley wrote.
As Wesley posted in July
If Jahi is alive, either the earlier death determination was mistaken or–and this would be huge–something never seen before in this field will have happened, a brain dead person recovering sufficient brain function to be deemed again alive. If Jahi lives, it will send shock waves through the medical, scientific, and organ transplant communities. ….But that’s tough. Our duty to Jahi, the integrity of the system, and the needs of scientific understanding require that the truth will out.