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CA Court Must Decide Finality of Brain-Death Declaration

In the case of a girl whose family says she was wrongly declared dead three years ago, a federal judge ruled Monday that California courts must decide whether a declaration of brain death can be overturned under state law.

SAN FRANCISCO (CN) – In the case of a girl whose family says she was wrongly declared dead three years ago, a federal judge ruled Monday that California courts must decide whether a declaration of brain death can be overturned under state law.

Jahi McMath was declared brain dead on Dec. 12, 2013, at the age of 13, after suffering complications from a routine surgery for sleep apnea at Children’s Hospital Oakland three days earlier.

McMath’s mother, Nailah Winkfield, fought to keep her daughter on life support in state court. An Alameda County judge ruled on Christmas Eve 2013 that McMath met the legal criteria for brain death.

Winkfield then took her fight to federal court, but reached a settlement with the hospital in January 2014 to transfer her daughter to a medical facility in New Jersey, where state law contains a religious exemption to brain death.

Winkfield filed a new federal lawsuit in December 2015 against the state, Alameda County and the hospital seeking a declaration that McMath is not and was never brain dead.

In her complaint, Winkfield said numerous signs indicate her daughter is alive, including the onset of menstruation and her daughter’s ability to move her fingers in response to verbal commands.

In a ruling issued Monday, U.S. District Judge Haywood Gilliam found the Pullman Abstention Doctrine, established in a 1941 Supreme Court case, bars federal courts from deciding sensitive areas of social policy when state laws are unclear.

“The court cannot envision an issue more novel and important than a state’s policies surrounding a determination of death,” Gilliam wrote in his 12-page ruling.

Gilliam also ruled that McMath cannot file a federal appeal of Alameda County Superior Court Judge Evello Grillo’s December 2013 ruling that McMath suffered brain death. The Rocker Feldman doctrine bars a losing party from seeking appellate review of a state court ruling in federal court, Gilliam wrote.

However, the judge refused to dismiss the remainder of claims in the case – that the defendants deprived McMath of her constitutional rights and violated the Rehabilitation Act, Americans with Disabilities Act, and Religious Land Use and Institutionalized Persons Act. Those claims will be stayed pending a decision by the California court on whether a brain-death diagnosis can be overturned.

“In this unique and novel situation, this court cannot predict with any confidence how the California Supreme Court would interpret the finality of a brain death diagnosis under Health and Safety Code sections 7180 and 7181,” Gilliam declared in his ruling.

A separate action over the brain death diagnosis is currently pending in state court.

In that case, the California Court of Appeals ruled this past July that the question of whether collateral estoppel applies to a determination of brain death should not be decided at the pleading stage. Collateral estoppel is a legal principle established by the California Supreme Court that prevents parties from re-litigating resolved claims.

In an email, the hospital’s attorney G. Patrick Galloway said Gilliam acknowledged an ability to predict how California’s high court would interpret the finality of a declaration of brain death under state law.

“The court made no determination regarding plaintiff’s contention that Jahi McMath ‘shows signs of cognitive function,’” Galloway said. “The court did also conclude that it would not consider a de facto appeal of Judge Grillo's ruling in December 2013 and dismissed plaintiffs' claims challenging that ruling.

“It continues to be UCSF Benioff Children’s Hospital Oakland’s position that Jahi McMath fulfills the diagnostic criteria for brain death and that she is deceased,” he added. “This is demonstrated by three brain-death evaluations and a ruling by Judge Grillo in December 2013, as well as the declaration of Sanford Schneider M.D., filed in Alameda County Superior Court on Nov. 14, 2016, in support of the motion to unseal reporter’s transcripts."

The California Attorney General’s Office deferred comment to the California Department of Public Health, which did not immediately return an email seeking comment Tuesday afternoon

A phone call seeking comment from McMath’s attorney, Quinton Blair Cutlip of the Dolan Law Firm in San Francisco, was not immediately returned Tuesday morning.

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