Wrangling Continues on Brain-Dead Teen

     SAN FRANCISCO (CN) — Attorneys for California and Alameda County asked a federal judge on Thursday to dismiss an action seeking to void the death certificate of a teenager declared legally dead after complications from surgery for sleep apnea.
     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 that 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. 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 an Alameda County judge ruled that McMath met the legal criteria for brain death.
     Before the hospital could take McMath off life support, however, 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 took the case to Federal Court in December 2015, claiming due process and privacy-related constitutional violations.
     At Thursday’s hearing before U.S. District Judge Haywood Gilliam, attorneys for the state of California argued that the case was in the “wrong forum” and that it belongs in state court rather than Federal Court.
     But McMath’s family’s attorney Christopher Dolan contended that his clients would not be able to find the declaratory relief they seek in state court, since there is already an Alameda County Superior Court order declaring McMath legally brain-dead.
     “What I’m asking this court to do is present a forum where we can put on medical experts and not have this be decided by an arcane application of the law,” Dolan told Gilliam, calling the case one of “first impressions.”
     Gilliam asked both parties whether there was a causative link between the state court’s order and McMath’s death certificate.
     Arguing for Alameda County, John Kortum said that the order directly caused the certificate to be issued.
     Dolan disagreed, saying that the death certificate was issued because “we were dealing with a situation in which a young girl was rotting in a hospital bed” and the hospital would not allow her family to remove her to another facility without a death certificate.
     “That’s exactly the kind of detail that I really have to consider getting embroiled in,” Gilliam said. “It appears to me beyond argument that the question of how a state reaches a determination of death, how it issues a death certificate, how it applies its own laws in this area is a quintessential sort of policy matter that will have ramifications not just in this case, but very broadly.”
     The judge did not indicate how he expects to rule.
     Dolan’s office is in San Francisco.
     Kortum is with Archer Norris in Walnut Creek, California.

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