Battle Continues in CA Over Brain-Dead Child

     SACRAMENTO, Calif. (CN) — A federal judge denied a mother’s request to force Kaiser to keep her brain-dead child on life support, but said the boy must be kept alive while his mother appeals to the Ninth Circuit.
     U.S. District Judge Kimberly Mueller denied plaintiff Jonee Fonseca’s request for preliminary injunction but ordered Kaiser to keep the infant on life support until May 20 — extending her temporary restraining order by one week to allow Fonseca time to file an emergency appeal with the Ninth Circuit.
     Mueller disagreed with Fonseca’s main arguments that Kaiser violated the federal Emergency Medical Treatment and Labor Act and that California’s Uniform Determination of Death Act law is unconstitutional.
     In her 31-page ruling, Mueller said Kaiser fulfilled its federal obligations by stabilizing Fonseca’s son, Israel Stinson, and keeping him on a ventilator well after doctors declared him brain-dead.
     “As a practical matter, after stabilizing Israel, Kaiser determined Israel’s condition was no longer an emergency medical condition because it found Israel had suffered brain death,” Mueller wrote.
     Mueller also denied Fonseca’s claims that Kaiser and its doctors acted under the color of California law. She said Fonseca failed to cite a single case where a private doctor working at a private hospital was found to have acted under color of law.
     “The court’s independent research has likewise produced no example. This is a case of private action, not public action,” Mueller wrote.
     Fonseca and her attorney Kevin Snider argued that California’s definition violates the Fourteenth Amendment and denies Stinson of liberty and life without due process. They also submitted a declaration from their own physician stating that Israel has breathed on his own and moved his upper body in response to his mother’s touch.
     Again Mueller disagreed, ruling that California’s definition is widely accepted and has been adopted by other states — and that Fonseca’s physician is in the minority.
     “On balance, a professional doubt surrounding brain death as death, legally or medically, represents a minority position,” Mueller ruled.
     In response to Mueller’s ruling, Kaiser said it would comply with the order and provide continuing care to Stinson.
     Snider could not be reached for comment after hours Friday, but said in court Tuesday that Fonseca would immediately ask for a stay of Mueller’s decision and appeal to the Ninth Circuit.
     In Federal Court Wednesday, Snider said the family was urgently attempting to transfer Stinson to a different hospital, but that they weren’t sure how long it could take.

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