Law & the Courts

The Corner

Is Jahi McMath Alive?

Jahi McMath suffered catastrophic complications from throat surgery in December of 2013 — 3 1/2 years ago.

She was soon declared to be brain dead, and Oakland Children’s Hospital informed her mother, Nailah Winkfield, that life support would be terminated.

Winkfield sued, but after an independent medical examination, the judge ruled that Jahi was deceased and allowed a death certificate to be issued. He also played Solomon, and worked out a settlement whereby Children’s Hospital transferred Jahi to her relatives while still on life support. We now know she was moved to New Jersey, where she remains today.

At the time, I believed Jahi was dead, and so wrote.

But I also wrote that if she did not deteriorate as almost all people with properly determined brain death do, my eyebrows would raise. Since then, Jahi has not deteriorated, but apparently, her body’s condition has improved. My eyebrows are above my hairline.

A judge has permitted Winkfield to demonstrate that the death declaration was erroneous. Important evidence in that process was just filed in the penalty of perjury declaration of an internationally respected neurologist, who states that Jahi’s condition is no longer consistent with a brain death determination.

First, he notes that one of the bases for declaring Jahi dead was the-then apparent ongoing deterioration of her body. From the Declaration of D. Alan Shewmon, starting at page 21 (my emphasis):

Jahi’s deterioration in late December 2013 and early January 2014 was held up [by diagnosing doctors] as proof that she was most certainly a corpse being artificially maintained with the appearance of life….

Upon transfer to St. Peter’s Hospital in New Jersey, she received the tracheostomy and gastronomy feeding tube that were refused in Oakland. She received the enteral feedings that her gut was supposedly unable to handle and that would only be deleterious.

With proper nutrition and other treatments for a patient requiring intensive care, her intestines healed, her skin torgor and pulmonary status recovered to normal, and she regained spontaneous maintenance of blood pressure without pressor medications.

She still requires blankets to maintain temperature, but for the past 3+ years she has remained remarkably healthy, apart from being severely neurologically disabled. 

And here’s something I didn’t know:

Most of that time she has not even been in the hospital, but an apartment with the assistance of nothing more than a ventilator, excellent nursing care, hormone supplementation, and nutrition.

Such recovery from impending multisystem failure and such improvement in overall health, as Jahi exhibited in the early months of 2014, is not possible on a ventilated corpse. 

After describing other matters related to Jahi’s condition — such as her entering puberty — Shewmon reaches a stunning conclusion, given the history of this case and the failed adamancy of Children’s Hospital that the courts refuse permission to prove Jahi is alive:

What the above evidence and reasoning show is…that Jahi  McMath was never truly dead, even though she fulfilled the accepted medical criteria for death in December 2013. She exhibited to brain function at the time, but the cessation of at least two functions — consciousness and hypothalamic regulation of menstruation and sexual development — has proved not to be irreversible. (Shewmon’s emphasis).

This is important because irreversibility is an essential element of death, whether caused by total brain or cardio/pulmonary failure.

Shewmon’s conclusion:

Jahi McMath is a living, severely disabled young lady, who currently fulfills neither the standard diagnostic Guidelines for brain death nor California’s statutory definition of death. At the very least, in the matter of life versus death, the compelling evidence [in videos] of responsiveness to commands and of puberty warrants giving life the benefit of the doubt.

I think more is needed  here than dueling court declarations. This case is a matter of tremendous importance — to Jahi and her family, to science (it may be the first known case of recovery from brain death), and to our faith in the integrity of the medical system.

Thus, I urge the court to appoint several prominent medical experts to examine Jahi, and not just for a day or two, but over an extended time to determine whether she is sporadically responsive and to test her brain and body functions to best determine whether she still meets all the criteria of brain death.

If she does not, the death certificate should be rescinded, regardless of the impact on or consequences to the hospital’s finances in the malpractice suit — which would still require proof of negligence causing Jahi’s injury — upon the public’s perception of brain death or any potential implications for organ donation.

HT: Thanks to Thaddeus Mason Pope for his ongoing efforts to post court documents in this and other cases germane to bioethics. Pope and I disagree on nearly every bioethical controversy. But his website is an extremely valuable resource for anyone interested in the bioethics-legal axis.

 

Wesley J. Smith — Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

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