The Corner

Court Permits Evidence Jahi McMath Alive

A court in California has permitted Jahi McMath’s mother to present evidence that Jahi ”has standing” to bring a lawsuit. From the court’s order sustaining a demurrer (meaning the original pleadings were insufficient to go forward):

CHO’s demurrer…is SUSTAINED…WITH LEAVE TO AMEND to allege facts sufficient to state a cognizable cause of action by Jahi against CHO…for negligence, including facts to the effect that Jahi has standing to bring the cause of action despite the issuance of a death certificate on January 3, 2014.

What does that mean? A dead person does not have standing to sue.

In other words, the court opened the door for the presentation of evidence that Jahi McMath is not dead, that is, her current condition does not meet the clinical criteria for a declaration of brain death.

There is reason to think that could be done. It has been nearly two years since Jahi’s medical catastrophe, and yet, her body has apparently not deteriorated as generally occurs in a brain death situation. 

Declarations from respected physicians have concluded she exhibits neurological functions that are inconsistent with a deceased person.

Note that the judge ruled that saying she is dead because a death certificate so declares she is dead will not be determinative if the plaintiff can offer pleadings indicating facts to the contrary.

I agree with bioethicist and law professor, Thaddeus Mason Pope’s, take:

This is a significant ruling…although a California court has already declared Jahi dead (in 2013), that fact can now be re-litigated.

To be sure, this is a ruling only about pleading. If the First Amended Complaint (due in early November) can allege sufficient facts, then Jahi must still later offer sufficient evidence to substantiate them.

Still, it seems that the amended complaint had better be pretty detailed.

So, now it is up to the lawyer to make his best case that Jahi is alive. The door is open. It seems to me that only a full neurological workup demonstrating neurological function will do.

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