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Jahi Malpractice vs “She’s Not Dead” Cases

by | Mar 9, 2015

By Wesley J. Smith

Jahi McMath

Jahi McMath

To no one’s surprise, the family of Jahi McMath has sued Children’s Hospital of Oakland for medical malpractice. From the NJ.Com story:

The family of Jahi McMath — a teenager now living in the Somerset section of Franklin Township — is suing the California hospital over the severe brain damage she experienced after a surgery there.

Family members also say in the lawsuit they were pressured to donate McMath’s organs after a chaotic an emotional scene at the hospital, and after its pediatric chief, slammed his fists on a table and said, “What is it you don’t understand? She is dead, dead, dead, dead.”…

The lawsuit, filed Tuesday in Alameda County Superior Court, alleges the hospital recommended a complex and risky surgery, botched the operation and didn’t respond promptly and properly enough to prevent McMath from sustaining severe brain damage.

The teen lost a significant amount of blood and was deprived of oxygen before her heart stopped during complications following the surgery, which has resulted in a profound impact to the quality of her life, the suit states.

Obviously, I can’ comment on the credibility of these claims. But I will note that if “presumed consent” to organ donation became the law of the land, such distrust would multiply geometrically. The story says she is “living” in NJ. That’s a matter of significant controversy. California currently considers her deceased. But that finding is about to be legally challenged:

Dolan has said he plans to file a request with Alex Padilla, California’s secretary of state, asking him to rescind the death certificate so the family can return to Oakland and receive care for their daughter. If that doesn’t work, he said he would sue the state in an effort to get Jahi home.

The medical malpractice case is independent of the planned legal effort to have Jahi declared alive in California. The former can go forward regardless of the success of the latter effort. But: IF the hospital and doctors are liable for Jahi’s injuries, the amount of damages would be drastically higher if she is alive, since the total compensation would also include the costs of very expensive care.

I once thought Jahi was dead. But I believe strongly that sufficient contrary evidence has been produced that her current condition does not meet brain dead criteria to significantly undermine the “she is dead” determination.

Hence, the case should be reopened, focusing on complete neurological testing by a trusted and independent panel of physicians. If she’s dead, so be it. If she isn’t dead, she isn’t dead, the financial and cultural consequences of such a finding be damned.

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

Categories: Brain Death