SAN FRANCISCO (CN) - The family of a teenager declared legally dead after complications from surgery for sleep apnea is taking its case to void her death certificate to Federal Court.
Jahi McMath, now 15 years old, underwent the surgery on Dec. 9, 2013 at Children's Hospital Oakland. The hospital is now a part of UCSF Benioff Children's Hospital.
Her tonsils and adenoids were removed, and her mother Nailah Winkfield claims in a 57-page civil suit the procedure was presented to her as "routine," and doctors described it as successful afterward.
But McMath soon started bleeding from the mouth so profusely that it had to be caught in a bucket, and although doctors reassured Winkfield that the bleeding was "normal," McMath suffered cardiac arrest and severe brain swelling. Doctors at the hospital pronounced her brain dead on Dec. 12.
Winkfield says that hospital officials continually pressured her to sign documents authorizing them to take her daughter off life support, and after an intense legal battle a judge in Alameda County Superior Court ruled that McMath met the legal criteria for brain death.
Before the hospital could take McMath off life support, Winkfield arranged for Jahi's transfer to a medical facility in New Jersey, where state law contains a religious exemption to brain death.
McMath is still in New Jersey, where she receives "minimal in-home care support," is in "excellent health," with "no skin or organ breakdown" and "irrefutable brain function," Winkfield says in her complaint.
McMath's family filed a lawsuit in Alameda County Superior Court in March for conditional wrongful death, naming the children's hospital and surgeon Frederick Rosen as defendants.
The federal lawsuit, filed Wednesday in the Northern District of California, involves civil rights claims against the state of California, Alameda County, the Alameda County Department of Public Health, the California Department of Public Health and many of those entities' officials.
In the federal suit, Winkfield and McMath claim violations of their First, Fifth and 14th Amendment rights, including due process and the right to privacy.
"These government agencies and officials have failed to provide any process or avenue for Winkfield to prove that Jahi is not brain dead and have summarily, without any hearing, denied to even consider whether Jahi does not meet the criteria for brain death and is therefore alive," Winkfield says in the suit.
Winkfield says she "wishes to have her daughter's basic human right, to life, restored to her so that she can return to California, and specifically Oakland, the place where Winkfield and Jahi were born and raised, to be surrounded by the love and support of their family."
She adds, "As it is presently, should Jahi leave New Jersey, and its protections provided by New Jersey's religious exemption to brain death, she could be refused treatment, unplugged, even shot, without repercussion as she is legally dead in California.
"It is incumbent upon the U.S. District Court to exercise its constitutional and statutory powers and rectify this injustice."
Winkfield says her Christian religious beliefs "include a conviction requiring the provision of all treatment, care, and nutrition to a body that is living," arguing that Alameda County's actions have violated her right to exercise those beliefs.
Numerous signs, she says, indicate that her daughter is alive, including the onset of menstruation and multifaceted evidence of brain function - evidence she calls "uncontroverted and overwhelming."
"Jahi's remarkable strength and resiliency despite the serious brain injury she suffered, and her failure to exhibit the predicted deterioration, proves that 'in accordance with accepted medical standards,' Jahi has not in fact suffered 'irreversible cessation of all functions of the entire brain, including the brain stem,'" Winkfield says in the suit.
According to the complaint, McMath's neurological status continues to improve, she understands words and she can move her fingers in response to verbal commands.
Christopher Dolan, McMath and Winkfield's attorney, said in a statement that "the fact that the state refuses to recognize the mountain of evidence that Jahi McMath does not meet brain death criteria is the most grave of injustices."
"In essence, they proclaim that once she is determined to be brain dead they will never revisit, or reconsider, the death sentence no matter what factual evidence is presented," he said.
"This is like refusing to reconsider a death sentence when evidence is presented demonstrating that the original conviction was erroneous, and the condemned was innocent."
The Alameda County Public Health Department did not immediately respond to an email requesting comment on Thursday.
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