Judge weighs in on whether Jahi McMath is brain dead

Jahi McMath, the Oakland teenager whose brain death case has sparked national debate, may not currently fit the criteria of death as defined by a state law written in conjunction with the medical establishment, a judge wrote in an order Tuesday.

In his ruling, Alameda County Superior Court Judge Stephen Pulido wrote that while the brain death determination in 2013 was made in accordance with medical standards, there remains a question of whether the teenager “satisfies the statutory definition of ‘dead’ under the Uniform Determination of Death Act.”

His ruling comes in the years-long medical malpractice suit against UCSF Benioff Children’s Hospital Oakland and its doctors, which also challenges the hospital’s 2013 brain death diagnosis of the Oakland teenager following a complex nose, throat and mouth surgery.

The judge’s order pertains to the personal injury claim in the lawsuit, which the hospital sought to dismiss, and could result in a trial on whether Jahi is alive. An attorney for the family is arguing Jahi is alive and therefore entitled to more than the cap of $250,000 on medical malpractice lawsuits involving children who die as a result of surgery.

Pulido heavily cited Dr. Alan Shewmon, who concluded in a court declaration that Jahi doesn’t currently fit the criteria for brain death after reviewing 49 videos of her moving specific fingers and other extremities when given commands to do so. Shewmon, a professor emeritus of pediatrics and neurology at UCLA, wrote that Jahi “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.” Shewmon also reviewed an MRI.

The girl’s family released some of the videos in 2014.

Reached Wednesday, hospital spokeswoman Melinda Krigel referred to a statement issued in July in which Children’s Hospital stood by its position that Jahi “fulfills the legal diagnostic criteria for brain death.” After her December 2013 surgery ended tragically, two doctors declared the teenager dead. An independent and court-appointed doctor from Stanford University later affirmed the diagnosis.

“The videotapes do not meet the criteria set forth in the guidelines” for determining brain death, the hospital said in the statement.

Bruce Brusavich, an attorney for Jahi’s family, did not return a call for comment Wednesday. The family has also filed a federal lawsuit.

Jahi’s story and her family’s fight to remove her from Children’s Hospital captured worldwide attention and inspired other families to question brain death determination of their loved ones.

In late December 2013, then-family attorney Christopher Dolan was successful in convincing a judge to order Jahi released from the Oakland facility, allowing the family to take her cross-country to a hospital in New Jersey. Unlike California, the Garden State has a law allowing guardians to reject a brain death diagnosis on religious grounds.

After leaving the New Jersey hospital, Jahi has been hooked up to breathing and feeding machines in a nearby apartment she shares with her mother, Nailah Winkfield, and other family members. She has used the machines to breathe and eat for nearly four years, a duration that is believed to be longer than any other U.S. patient declared brain dead.