Alameda County jury to decide whether Jahi McMath is alive
The family of Jahi McMath will finally be able to present to a jury their case that the comatose girl is alive — three years after she was declared dead by doctors at Children’s Hospital in Oakland and the Alameda County coroner’s office.
Judge Stephen Pulido of Alameda County Superior Court ruled this week that a jury will decide whether Jahi is dead, according to a court order. A trial date has not been set.
The family’s lawsuit against the hospital — which will be a wrongful injury lawsuit as opposed to a wrongful death lawsuit — will proceed. A federal civil rights lawsuit filed by the family is on hold during the malpractice legal proceedings in state court.
Chris Dolan, a family attorney representing Jahi in the federal case, said the defendants had tried to prevent the state trial based on whether she had rights as a living person.
“This is a massive win both legally and spiritually for the family. This mother’s been fighting to have her daughter be counted as a living, breathing human being,” Dolan said. “She has great faith that a jury will find that her daughter is indeed alive.”
The ruling on Tuesday comes after Dr. Alan Shewmon, a professor emeritus of pediatrics and neurology at UCLA, wrote in an Alameda County Superior Court declaration in June that Jahi is irrevocably and severely neurologically disabled — but not technically dead.
Citing Shewmon’s declara-
tion, Pulido ruled, “... in light of admissible expert testimony and other evidence introduced by McMath in support of allegations of ‘changed circumstances’ since December 2013, the court finds there is a triable issue of fact as to whether McMath currently satisfies the statutory definition of ‘dead.’ ”
Jahi was 13 years old when she went into what is now UCSF Benioff Children’s Hospital Oakland for a routine tonsillectomy in December 2013, but she experienced complications after the operation. She went into cardiac arrest and suffered massive hemorrhaging.
Her family fought unsuccessfully to force the hospital to continue caring for her, even after doctors declared her brain-dead. Lawyers for the hospital argued that it would be unethical and “grotesque” to artificially keep her alive.
Although hospital officials, the Alameda County coroner and a judge insisted she was dead, Jahi’s family took her to New Jersey when the hospital refused to care for her. They are now seeking a court order to reverse her death certificate.
The family has recorded dozens of videos showing Jahi seemingly responding to commands to raise her right hand or kick her foot, according to court records.
“There is no question that in December 2013 at Oakland Children’s Hospital, Jahi McMath fulfilled the widely accepted pediatric guidelines for determining brain death,” Shewmon wrote in his Alameda Country Superior Court declaration. “There is equally no question in my mind that she no longer does, for the single reason that the first of the three cardinal findings in brain death — coma, absence of brainstem reflexes, and apnea — is not fulfilled. Rather, she is intermittently responsive, placing her in the category of ‘minimally responsive state.’ ”
Shewmon also wrote in his declaration that Jahi’s MRI showed a “surprising extent of relatively preserved brain tissue.”
“Jahi’s subsequent course defied all predictions of what must happen to dead bodies maintained indefinitely on ventilators,” Shewmon wrote. “Jahi McMath is a living, severely disabled young lady, who currently fulfills neither the standard diagnostic guidelines for brain death nor California’s statutory definition of death.”
Dr. Alieta Eck, who has been treating Jahi in New Jersey for nearly two years, said the girl entered puberty and began a menstrual period in August 2014.
If Jahi is reclassified as alive, her family could be entitled to millions of dollars in damages. Awards are capped in California at $250,000 for the wrongful death of a child, but there is no cap for wrongful-injury claims because a court can order medical costs to be paid indefinitely.