Mom Asks Judge to Help|Keep Brain-Dead Child Alive

     SACRAMENTO (CN) — The mother of an infant declared brain-dead struggled to persuade a federal judge Wednesday that Kaiser should be forced to keep the child alive while she arranges a transfer to another hospital.
     U.S. District Judge Kimberly Mueller appeared unpersuaded by Jonee Fonseca’s constitutional claims that the health care giant violated a federal law requiring hospitals to stabilize and treat emergency room patients, and that its doctors wrongly declared her child brain-dead.
     Throughout the hour-long argument for a preliminary injunction, Mueller acknowledged a lack of case law involving a request to force a hospital to keep a brain-dead patient on life support against its own doctors’ recommendations. The judge promised a written ruling before the end of the week.
     Mueller asked whether Fonseca’s Emergency Medical Treatment and Labor Act (EMTALA) claims still apply, as Kaiser has provided life-saving care to 2-year-old Israel Stinson for nearly a month.
     Passed in 1986, EMTALA requires hospitals to stabilize and treat any emergency room patient regardless of ability to pay.
     Kaiser’s attorney Jason Curliano said the hospital has complied with EMTALA, and that Fonseca consented to Stinson’s transfer from another local hospital. Curliano said Kaiser is not “dumping” Stinson, and that it has been treating the infant for nearly a month, despite doctors’ confirming his permanent condition days after he arrived.
     Mueller agreed with Curliano that California’s Uniform Determination of Death Act law allows doctors some room for discretion, and that the three doctors who declared Stinson brain-dead appeared to have followed state guidelines.
     “Doctors are not autotrons, are they?” Mueller asked Fonseca’s attorney, Kevin Snider. “They must use some sort of discretion, right?”
     Snider said Kaiser has refused to allow an outside physician to diagnose Stinson since the infant was put on life support at a Sacramento-area Kaiser hospital on April 12.
     With Fonseca sitting beside him, Snider argued that California’s brain-dead determination law violates the 14th Amendment, by not allowing a patient to bring in an outside physician.
     Curliano reiterated that Snider was bringing up claims that were settled in state court last month, when a judge ruled that Kaiser complied with the state’s brain-dead statute.
     He also emphasized that the child has been seen by a non-Kaiser doctor and that the physician was actually with Stinson in the hospital Tuesday night.
     “Kaiser’s done nothing wrong. We’ve done everything right,” Curliano said. “We had two physicians perform tests and they came to the same unfortunate conclusion.”
     Earlier this month the parties tried but failed settle the lawsuit through several meetings conducted by U.S. Magistrate Judge Carolyn Delaney. Snider has mentioned the possibility of Stinson being moved to a hospital in New Jersey, the state to which Jahi McMath was transferred in 2014.
     New Jersey state law allows religious objection to a declaration of death. McMath has remained on life support for more than two years.
     In Fonseca’s federal lawsuit, she disputes Kaiser’s doctors’ brain-dead determination and says she “believes in the healing power of God.”
     Fonseca, 23, a pharmacy technician, says she has video of Stinson moving his upper body in response to her voice and touch and has asked the court to order Kaiser to continue life support until she finds a receptive hospital.
     Snider could not give Mueller a timeline of when Stinson’s transfer might occur if they receive an injunction, but said that such an order would not be a long-term solution.
     “This is not a Terri Schiavo, Nancy Cruzan or Karen Quinlan case,” Snider said.
     Schiavo was hospitalized in a permanent vegetative state for 15 years. Cruzan was in a similar state for 8 years and died 6 months after the U.S. Supreme Court issued its first ruling on a right-to-die case. Quinlan died after 10 years.
     Fonseca has been unable to find a permanent site for Stinson since she filed the lawsuit on April 28. A temporary restraining order forcing Kaiser to keep Stinson on life support has been ordered while the challenge is heard in Federal Court.
     If Fonseca’s motion is declined, Snider said she would immediately petition for a stay of Mueller’s decision and appeal to the Ninth Circuit.
     Chris Palkowski, chief of staff at Kaiser Permanente Roseville Medical Center, said Kaiser will continue to comply with court 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.

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