OAKLAND — As the Jahi McMath lawsuit inches closer to a hearing on whether she is dead or alive, attorneys for UCSF Benioff Children’s Hospital Oakland want to perform another brain death test on the Oakland teenager.
But her family’s attorney thinks it would damage her heath because it requires her breathing machine be turned off for 10 minutes.
“I’m not saying they want to kill her, but it’s certainly a risk,” attorney Bruce Brusavich said after a court hearing in Hayward on Friday. The attorney filed a medical malpractice suit on behalf of Jahi’s family against the hospital in 2015.
Jahi was 13 in late 2013 when she began bleeding profusely and went into cardiac arrest following nose, mouth and throat surgery at the Oakland hospital. She was later declared brain dead.
Three tests that are considered the national standard have shown Jahi has irreversible brain death. The last test was performed in September 2014. In October 2014, her family released an MRI they say shows she has brain function, even if very limited, and is alive. They also played videos of her moving specific fingers when commanded to do so.
Attorneys for Children’s Hospital, however, insist another test is necessary before the two sides argue before Judge Stephen Pulido on whether Jahi is alive. The unprecedented hearing, which Pulido ordered in a September ruling, is expected to take place within a year from now.
In a March 1 court filing in the medical malpractice lawsuit, hospital attorneys accuse Brusavich and Jahi’s family of “changing tactics” by first saying Jahi did not fulfill the brain death criteria and then arguing the guidelines for testing are flawed.
“All of the materials relied on by plaintiffs are very old,” hospital attorneys wrote. “The most recent video recording was taken nearly two years ago. What evidence, if any, do plaintiffs have that demonstrate Jahi McMath’s brain function?”
In a statement, Children’s Hospital Oakland said it could not address specific allegations of the case but reiterated that three separate tests have shown Jahi fulfills the criteria for brain death.
“Jahi McMath has not undergone a valid brain death evaluation pursuant to accepted neurologic criteria since she was declared deceased under California law in December 2013,” the hospital statement said. “It would be difficult to proceed with the case without further neurologic testing.”
At a court hearing Friday, Brusavich said Jahi’s current doctor believes a brain death test could cause serious heart arrhythmias or complete cardiac arrest. Brusavich is also arguing the test would violate a section of the state’s code of civil procedure which protects plaintiffs suing for personal injury from examinations that are “painful, protractive or intrusive.” Judge Pulido did not issue a ruling on the matter Friday.
Outside of court, Jahi’s grandmother, Sandra Chatman, agreed the test could be “dangerous.” Chatman had just returned from visiting Jahi in New Jersey, where the family relocated in January 2014 after an Alameda County judge allowed them to remove the girl from Children’s Hospital. New Jersey is the only state where a family can reject a brain death diagnosis on religious grounds.
Chatman said Jahi is spending her days listening to music and Golden State Warriors games inside her own room in an apartment shared with her mother, Nailah Winkfield, and other family members. The grandmother recently bought Jahi a keyboard and has taken video of her pressing down on its keys.
“She can use her hands very well,” Chatman said. “She’s just jamming.”
If Jahi is deemed alive, the family could be entitled to more than the cap of $250,000 on medical malpractice suits involving children who die as a result of surgery.
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More than four years after the surgery at Children’s Hospital, her case continues to draw international attention. Next month, the 2018 Annual Bioethics Conference held at Harvard Medical School includes a panel on Jahi: “Brain Death and the Controversial Case of Jahi McMath.”
One of the panelist is Dr. Alan Shewmon, a professor emeritus of pediatrics and neurology at the University of California, Los Angeles, who has filed court declarations in support of Jahi’s family. Shewmon reviewed the MRI and 49 videos and determined Jahi “currently fulfills neither the standard diagnostic guidelines for brain death nor California’s statutory definition of brain death.”
