NRL News

Court Petition to Declare Jahi McMath Alive!

by | Oct 2, 2014


By Wesley J. Smith

Jahi McMath

Jahi McMath

According to the State of California, Jahi McMath has been dead since December 9, 2013, when she went into cardiac arrest after catastrophic side effects from throat surgery.

Oakland Children’s Hospital doctors insisted she was brain dead, that is, she had experienced total brain failure. Under California law, brain death is dead.

When the doctors stated their intention to remove the life support from Jahi, her mother sued. A brouhaha ensued.

A judge appointed an independent physician from Stanford to examine the girl, and he too found she was dead. The judge declared her dead and the state of California issued a death certificate.

But the compassionate judge also pushed the parties into a settlement that released Jahi to the coroner–still on a ventilator–and thence to her family. She was taken out of state.

At the time, I wrote here and elsewhere that I thought she was dead. But I also said that if her body did not deteriorate–as almost all brain dead bodies do–my eyebrows would be raised. Over the last few months my eyebrows have migrated past my receding hairline.

I also wrote that if she was found to not actually be dead, there would be “hell to pay.” That bill may be coming due if the McMath attorney Chris Dolan, succeeds in having the state declare her alive. From the San Francisco Chronicle story:

Nearly 10 months after doctors found that Oakland teenager Jahi McMath was brain dead, an attorney for her family has petitioned an Alameda County judge to have her declared “alive again.” “I have medical experts, including world-class experts on brain death, who will testify she is not brain dead,” attorney Chris Dolan said Wednesday, calling a judge’s refusal last year to compel a hospital to care for her “a grave injustice.”

Oakland Hospital has been just abysmal in its PR in this case–and that maladroit insensitivity continues:

Hospital officials did not return our call seeking comment. However, in their court filing, attorneys for Children’s said Grillo’s ruling upholding the death declaration was “well-supported in fact and law.” What’s more, they said, Dolan missed the deadline to request a rehearing by seven months, and therefore the court no longer has jurisdiction to hear it.

Dolan argues that the court does have the legal authority to rule “in the interests of justice, which are literally those of life and death.”

Good grief. This isn’t about legal procedure. If evidence exists that she is alive, the hospital should be supporting that data coming out.

If evidence exists that Jahi is alive, it needs to be heard! That’s what we do in death penalty cases, after all: Permit new evidence even after procedural deadlines have passed.

Dolan is a well-respected lawyer. He is not saying that Jahi’s mother believes she is still alive, or that family members have detected interactivity in their deep love for her. He is not contending that the California law on brain death is wrong.

He is saying objective medical tests demonstrate that she is not brain dead. Or to put it another way, Dolan apparently believes that he can prove to the court, based on evidence, that Jahi McMath has positive brain function. If so, she is not dead.

Please note, this isn’t the same thing as saying she is awake. A persistently unconscious person is alive. A brain dead person isn’t in a coma, but deceased.

If Dolan successfully proves the case, there will be much hell to pay. There will be consequences.

Fasten your seat belts: This is going to be a bumpy ride!

Editor’s note. This appeared on Wesley’s great blog.

Categories: Brain Death