Attorney seeks reversal of ‘brain death’ ruling for Jahi McMath

Reporting from Oakland —  An attorney for the family of Jahi McMath has asked an Alameda County Superior Court to reverse its January finding of brain death, and says medical tests have shown that she is demonstrating brain activity.

The case involves the 13-year-old girl who experienced bleeding and cardiac arrest after a tonsillectomy at UCSF Benioff Children’s Hospital in Oakland in December 2013.

She was declared brain dead after two tests indicated that she showed “no cerebral activity.” After the family filed suit to keep her on a ventilator, the chief of child neurology for the Stanford University School of Medicine confirmed the finding.

A death certificate was issued but the family was allowed to remove Jahi from the facility and she has been under care at an undisclosed East Coast location.

Family attorney Chris Dolan emailed Judge Evilio Grillo on Sept. 24 to say he had new information and would seek a reversal of the brain death determination.

“I intend to have declarations from various health care providers (experts in Neurology, EEG’s and Neuro Science) and live testimony from two expert witnesses,” he wrote. “I also expect to submit video/photo evidence to the court.”

In an interview Thursday morning, Dolan said he would share the evidence with reporters at 1:30 p.m. That includes video of Latasha “Nailah” Winkfield, Jahi’s mother, “asking her daughter to move specific body parts and her doing so, which doesn’t happen in brain dead people.”

Dolan noted that experts in brain death had predicted Jahi’s brain would soon liquefy, but that to the contrary 10 months later MRI and EEG tests have shown electrical activity. While Jahi remains on a ventilator, he said, “so are thousands of people who are brain injured.”

Brain death is defined as total cessation of all neurological activity in the brain, including the brain stem.

“We want the court to reverse so we can restore this girl’s humanity,” he said. “The hospital has called her a corpse. Her name is Jahi and she is alive.”

Dolan said Jahi can be cared for in a home environment and Winkfield wants to bring her back to California. But unless the death certificate is nullified and the finding of brain death reversed, “if she has to go to a hospital for anything, even a cold, they would pull the plug. She’s in exile.”

Dolan has not revealed the names of the medical professionals who conducted the recent tests but says one would participate in Thursday’s news conference via phone and is a doctor “who believes in brain death.”

At a Tuesday case management conference, Grillo raised doubts about whether his court has jurisdiction to hear the new evidence. He requested filings on that issue and also asked the Alameda county coroner and California Department of Public Health to file statements in advance of a hearing scheduled for Oct. 9.

In a preliminary analysis, Grillo wrote that an administrative process exists to seek an amendment or reversal of a death certificate and might be a more appropriate avenue.

But he also noted: “The fact that this court made a finding of brain death based on the evidence presented in December 2013 would not appear to prevent this court, or some other court, or the California Department of Public Health from reaching a different conclusion based on new facts.”

Dolan has since submitted a filing that contends Grillo does have jurisdiction and said “the interests of justice, which are literally those of life or death, demand that the court exercise that jurisdiction to prevent perpetuation of a grave injustice.”

In their filing, attorneys for Children’s Hospital said the time limit had passed for Dolan to challenge Grillo’s earlier ruling.

In a statement, Dr. David Durand, the hospital’s senior vice president and chief medical officer, said, “UCSF Benioff Children’s Hospital Oakland extends its heartfelt sympathy to the family of Jahi McMath.”

“We are aware that attorneys for Jahi McMath’s family are seeking to challenge a ruling from last year by Judge Evelio Grillo that Jahi McMath was deceased, as well as challenge the January 2014 death certificate issued by the Alameda County coroner,” the statement said. “We trust that the California courts, the Alameda County coroner and the state of California will evaluate any claims made by the family’s attorneys and decide them in a lawful and just manner.”

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