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Family Sues for Conditional Wrongful Death

OAKLAND, Calif. (CN) - The family of a teenager who was declared legally dead after complications from surgery in December 2013 sued the hospital that treated her, contending that Jahi McMath is still alive.

McMath's mother, stepfather and grandmother accuse UCSF Benioff Children's Hospital Oakland and surgeon Frederick Rosen of medical negligence and - "in the event that it is determined Jahi McMath succumbed to the injuries caused by the negligence of the defendants" - of wrongful death.

The family's attorney Bruce Brusavich, of Torrance, said in an interview that he has not filed a conditional wrongful death claim before, but that case law allows the pleading of "alternative facts or theories."

"The mother's always said that if there's any deterioration of her daughter's condition to the point that she's convinced she's dying, she will not continue life support," Brusavich said. "In that case, it's obviously wrongful death."

Jahi underwent surgery for sleep apnea on Dec. 9, 2013. Her tonsils and adenoids were removed, as well as excess throat and nose tissue.

The family claims that Dr. Rosen, after noting that the congenital condition of McMath's right carotid artery put her at risk of severe hemorrhaging, did not communicate that risk to the nurses and doctors who would post-operatively care for her.

After surgery, the family says, they found Jahi coughing up blood into a container, which the nurse assured them was "normal."

A nurse gave Jahi's mother a suction wand to siphon blood out of her mouth, but another nurse said that suctioning the blood would "remove blood clots that are vital for her healing," according to the March 3 lawsuit.

On the morning after the surgery, the complaint states, Jahi went into cardiac arrest, at which point a doctor came to her bedside and said, "Shit, her heart stopped."

The family says the cardiac arrest lasted for more than two hours and left Jahi severely brain-damaged and dependent on life support.

The Alameda County Coroner's Office issued a death certificate on Dec. 12, 2013, but the family contended in court that she was still alive because her heart continued to beat while on a ventilator.

According to the complaint, the hospital pressured the family to terminate life support and donate Jahi's organs. At one point, the family claims, the hospital's chief of pediatrics slammed his fist on a table and said, "What is it you don't understand? She is dead, dead, dead, dead!"

The family claims the hospital also gave them members distinctive visitor badges so that security guards could follow them around the hospital and employees could hound them with organ donation forms. Nailah Winkfield, Jahi's mother, claims that a hospital employee tried to get her to sign the forms while she was praying in the hospital chapel.

The family obtained a restraining order preventing the hospital from terminating Jahi's life support, and she was released. She has been on life support at an undisclosed location in New Jersey, and the family claims that "recent evaluations by doctors, including a board-certified pediatric neurologist, confirm that Jahi does not meet the definition of brain death."

Hospital spokeswoman Melinda Krigel said in a statement that "our hearts go out to the McMath family," but that "it is our policy not to comment on pending litigation."

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