Kaiser to Keep Brain-Dead Child Alive for Now

SACRAMENTO, Calif. (CN) — The mother of an infant deemed "brain dead" by health care giant Kaiser agreed Monday to attend an emergency settlement conference after a federal judge acknowledged a bevy of jurisdictional concerns with her lawsuit.

U.S. District Judge Kimberly Mueller ordered plaintiff Jonee Fonseca to focus her civil rights claims and submit an amended complaint by the end of Tuesday.

Fonseca sued Kaiser on Thursday and asked the court for an emergency order preventing the hospital from taking her 2-year-old son Israel Stinson off life support. Fonseca disagrees with Kaiser doctors' claims that Stinson is "brain dead" following an asthma attack in early April, and claims to have video proof of her son moving his upper body in response to her voice and touch.

Fonseca, represented by the Pacific Justice Institute, says Kaiser has stopped feeding Stinson and has threatened to "pull the plug" on her son.

Mueller ruled Monday that a temporary restraining order keeping Stinson on life support issued Friday will stand whether the parties settle or continue the challenge in Federal Court. If the parties are unable to settle Tuesday, the case will resume May 11.

Mueller said Fonseca's complaint fails to "invoke the court's jurisdiction," and asked whether she has actually been appointed as the boy's guardian in legal matters. Mueller also raised jurisdictional questions as to whether Fonseca's claims against Kaiser employee Dr. Michael Myette can even be heard by the court.

Fonseca's attorney Kevin Snider said that Fonseca would submit an amended complaint by Tuesday's deadline.

"We were not surprised by the order," Snider said. "We will make it work."

Chris Palkowski, chief of staff at Kaiser Permanente Roseville Medical Center, said Kaiser will continue to comply with the court's orders.

"Our hearts go out to this family as they cope with the irreversible brain death of their son, and we continue to offer our support and compassion to them," Palkowski said in a statement to Courthouse News.

Last week a state court ruled that Kaiser complied with the Uniform Determination of Death Act in its determination of Stinson as brain dead, and that it provided a reasonable amount of time to the family to grieve and discuss further accommodations.

Fonseca claims include violations of the First, Fourth and Fourteenth Amendments, the Rehabilitation Act of 1973 and the Americans With Disabilities Act. In the complaint, she describes herself as a "devout Christian" and argues that Stinson's "heart and other organs are functioning well.

In a declaration submitted by the plaintiffs Monday, Dr. Peter Mathews says there is a chance that Stinson's condition can improve and that Kaiser should continue to feed the infant.

"Given the uncertainty related to the thyroid condition and the family reporting some improvement since thyroid replacement, I think it would be both reasonable and compassionate to provide further life support and enteral nutrition for a period of 30 days," Mathews said.

During Monday's hearing, Snider discussed the possibility of transferring Stinson to a hospital in New Jersey. Mueller encouraged the parties to prepare discuss it during Tuesday's settlement conference with U.S. Magistrate Judge Carolyn Delaney.

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