By Matthias Gafni–Contra Costa Times
If Christopher Dolan gets his way, the Jahi McMath case may change how California determines when death occurs.
Dolan, a San Rafael resident who has gained newfound prominence as the attorney for Jahi’s family, hopes to mount what may be the nation’s first challenge to a law linking end of life to brain death.
Families — not hospitals, judges or governments — should decide when treatment stops on a loved one, Dolan argues. And if a family believes life stops when the heart stops, based on religious beliefs, a government should not have the power to interfere with their constitutional right to practice those beliefs.
It’s a daunting fight in an arena with no legal precedent. Experts say it is possible that the case of the 13-year-old Oakland girl, declared brain dead after tonsil, throat and nose surgeries to relieve her sleep apnea, will set new rules.
California’s Health and Safety Code 7180 is states that an individual who has sustained “irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” But citing their religious faith, Jahi’s family has insisted she is not dead, noting she continues to breathe and her heart beats with the help of machines.
Other cases around the country involving families of brain-dead patients have provided brief courtroom bursts, but no firm judgments.
“This is a hot area because there’s a lot of growing interest in religions versus medicine,” said Thaddeus Pope, a law professor at Hamline University School of Law in Saint Paul, Minn.
“If the courts don’t touch it, we will still have a policy vacuum,” said Pope, who maintains a blog on end-of-life legal cases.
Dolan points to Alameda County Superior Court Judge Evelio Grillo’s granting of a temporary restraining order in the Jahi case as a legal framework for future California cases. The court ordered Children’s Hospital Oakland to keep Jahi on a ventilator while the family searched for a facility that would accept the body and continue measures to sustain a heartbeat. The hospital and family reached an agreement to remove Jahi from the hospital, and she was moved to an undisclosed location on Jan. 5. A federal lawsuit lost its urgency once that occurred, but is still pending.
Grillo’s ruling was “the first time in a California court there’s a written opinion that parental rights exist following the issuance of brain death,” Dolan said.
To challenge the state’s death laws, Jahi’s family would have to amend their federal lawsuit to ask for relief, such as a court declaration about the hospital’s conduct regarding its refusal to recognize a religious exception, and a prohibition against doing it again. So far, the family has been reluctant to give Dolan the go-ahead to continue the court battle.
“Our main objective was to remove Jahi and get her someplace where she can be cared for and loved,” Jahi’s uncle Omari Sealey said recently. “Right now, we haven’t talked about changing the law.”
But Dolan insists there is an important constitutional principle to be established about the rights of parents to make health care decisions, as well as limits on government meddling.
“If (the government) decides when life ends, they also might try to decide when life begins,” the pro-choice attorney said, alluding to abortion rights.
Pope called Dolan’s constitutional arguments a “long shot” but possible, given that New Jersey and New York have clauses in their laws allowing families with religious beliefs to use cardiopulmonary death instead of brain death to determine the end of a loved one’s life. However, those religious options were added through legislation, not the courts. Pope stressed Jahi’s family would need to prove their religion believes death occurs when the heart stops beating.
Dolan said his clients are very religious, although the precise nature of their beliefs has not been detailed. Jahi’s mother, Nailah Winkfield, wrote in a court declaration: “I believe in God and that he can heal all. God created Jahi — he can save her.”
But UC Berkeley Boalt Hall law Professor Emeritus Marjorie Shultz, who specializes in medical ethics, said the family’s personal religious beliefs cannot compel a hospital to abide.
“The thing that might have weight is our knowledge of the brain is still quite limited and we have a tendency to confuse what we can measure as a fact,” she said. However, Shultz said it would likely take the Legislature to craft a similar law to those in New Jersey or New York to make any real change.
Dolan’s other two legal arguments involve the Federal Rehabilitation Act, saying hospitals that receive federal funds cannot discriminate against disabled people, as well as the Americans with Disabilities Act. Dolan said Jahi’s medical state put her into that category.
Pope called these arguments “close to frivolous,” considering state law deems Jahi deceased, not disabled. He said Dolan’s efforts to date have already created some “dangerous” legal history with Grillo’s restraining order rulings.
“It’s not precedent in rights under California law, but it definitely is precedent for all other parents knowing that they can probably get a few more weeks extra time by going to the court system,” Pope said.
Such tactics have already been used elsewhere.
In 2008, a Washington, D.C., children’s hospital asked a judge to allow them to remove a 12-year-old brain-dead boy from his ventilator. Doctors said the Orthodox Jewish boy’s brain ceased to function after he failed to regain consciousness following brain cancer surgery. However, the religious beliefs of Motl Brody’s family held that life ended when the heart stopped beating; in that case, the family did not consent to the hospital performing additional brain-death tests.
“(The parents) understood that once he was really brain dead there wasn’t any reason to transfer him to New York. They understood what was going on, but from a religious perspective their son was not dead,” said Jeffrey Zuckerman, a Washington, D.C., attorney who represented the family. “They wanted to let him die according to Jewish law.”
With a court hearing looming, his other organs began to fail and attorneys from both sides jointly agreed to call the judge to cancel further legal proceedings, Zuckerman said. Days later, Motl’s heart stopped as he lay in his hospital bed.
In 2004, Utah parents fought to keep their 6-year-old son, Jesse Koochin, on a ventilator after his bout with brain cancer left him brain dead. A judge ordered him released from the hospital to his parents’ care, and his heart stopped about three weeks later.
Giving families the power to declare death could have significant ramifications, Shultz said.
“You would have a lot of chaos if it were up to each individual to determine death,” she said. “So many things flow from that determination.”
But Dolan believes the issue needs to be settled, and soon.
“It’s a very important, significant legal debate that has been started,” Dolan said, “but not concluded.”
Jahi McMath’s legal case could impact state law. Here are similar cases involving brain death from around the country:
So, in other words Chris Dolan is using a brain dead teenager’s grieving family to benefit himself. Shameful.
I am the attorney who answered a call for help from Jahi McMath’s family in December. I have represented them for free — starting 10 hours before the first order to turn off Jahi’s ventilator at Children’s Hospital Oakland — as they have fought for their right to make medical decisions for a beloved child.
Despite the incendiary, hateful public rhetoric that has surrounded this case, I believe that self-interest alone should lead most Americans to thank Nailah Winkfield, Jahi’s anguished mother, for her courage.
It has been amazing to see how many people think they have a right to an opinion about this child, this mother, this family and the issues in this case. Self-righteous commenters and commentators who have no firsthand knowledge of the facts or the people involved pretend they can somehow know not only what’s best for Jahi but what’s best for society in such situations. They take it upon themselves to proclaim what will relieve or prolong the family’s suffering, what will desecrate Jahi or honor her, and they feel justified in sharing it with the world in mean-spirited terms.
For the most part, those who have attacked Jahi’s family argue these simplistic, uninformed points: The family is either stupid, misled by their lawyer or trying to exploit the system. Why can’t they simply accept the doctors’ decrees? Why should they be different?
What happened to Jahi at Children’s Hospital Oakland will most likely be a matter of litigation. But if you were Jahi’s mother, would you want the doctors and hospital authorities you believed had contributed to — or even caused — your child to be declared “brain dead” making final decisions about her?
Over my legal objections, Nailah Winkfield was cruelly made to go to the Alameda County Registrar of Births and Death to get a “death certificate” in order to move Jahi out of the hospital to a site where she could receive care. It required the intervention of the coroner because, at first, even the official at the agency didn’t want to issue the certificate — after all, Jahi was connected to a ventilator and her heart was still beating.
Those who condemn Jahi’s family appear to have no idea that doctor-decreed “brain death” is not sufficient as a declaration of death everywhere in the United States.
In New Jersey and New York, for example, there is accommodation for those who do not accept “brain death” as the appropriate criterion. According to New Jersey law, “the death of an individual shall not be declared upon the basis of neurological criteria … when such a declaration would violate the personal religious beliefs or moral convictions of that individual.” The McMath family’s position isn’t ridiculous or unheard of. There would have been no legal battle if Jahi had had her tonsils out in New Jersey.
And the rush to abrogate Nailah and Jahi’s constitutional rights is as reprehensible as the widespread ignorance about the limits of “brain death.” These rights include the 1st Amendment right to freedom of expression of religion, and the 4th and 14th amendment rights to privacy and personal liberty.
Those who attack Nailah’s decision and who are “pro-choice” on the issue of abortion should think hard about the fallout from their insistence that the family’s personal and private decision about when life ends can and should be overridden by doctors or the state. The same rights that support the choice made by Nailah also support contraceptive rights and abortion rights.
Nailah has eloquently made her own case: “That’s my daughter; I love her,” she told me. “As long as she is fighting, and God has her heart beating, I will fight with and for her. She needs some time, God needs some time; I’ve seen what medicine has done, now I want to see what God can do.”
Nailah’s fight is the fight of a loving mother for her child. It is a fight for privacy in the making of a medical decision. It is a fight for a strongly held belief in the miracles and mercy promised by the Bible.
If any among her critics share her faith, how could they call her ignorant or ridiculous for actually believing in the power and mercy of God? If they would have made a different decision, then right-on, they are Americans and they get to make their own choice.
Jahi McMath’s family are brave, loving, honorable hardworking people. They are not fools. They know the odds. They want time, free from the threats of the hospital to pull the plug. They want Jahi to be somewhere where people care for her and do not call her “the body.”
Trust me, they will happily disappear from the public spotlight — if you will let them.
Christopher Dolan is an attorney in private practice in San Francisco and Oakland.
Apparently the people (Some are respected Drs who specialize in Neurology and medical ethics, others are nurses who have worked in an ICU for years) who think it’s cruel to leave this 13-year old brain dead child on machines are “Self-righteous?” Chris Dolan get that ego in check sir. No one said the family is stupid. They are mis-lead by people like you, The Shivo family, and Dr. Paul Bryne. You guys keep the hope alive that somehow Jahi will suddenly wake up. It’s safe to say, she never will. My question for you is how do you feel getting famous off the suffering and grief of Jahi’s family?
Paul Byrne, a Neonatologist NOT a Neurologist has written another “article of his opinion” on the Jahi McMath case. Is he the Dr. treating her or is his opinion not based on examining Jahi? He talks about the part of our brain that regulates temperature/hormones called the hypothalamus. He says Jahi’s hypothalamus regained function and therefore she cannot be dead.
This is deeply significant, because the human body relies upon the hypothalamus portion of the brain to conduct the temperature-regulating function. More to the point, Jahi’s brain was still functioning to a notable degree, at least during part of the material time of the famous/infamous “brain death” declaration. And her brain would continue to function for at least as long as she is still able to self-regulate her own body temperature. To wit, Jahi’s brain, then, obviously did not fulfill “irreversible cessation of all functions of the entire brain,” the wording of the Uniform Determination of Death Act (UDDA).
How exactly would he think this part of Jahi’s brain is functioning? Has he actually examined her? Is he the doctor who inserted her trech and g-tube? He is not a neurologist nor does he know anything about the brain function of a child. Unless he physically examined her, he would not know anything about Jahi’s current condition. His “opinion” would be invalid.
The very recent and emotional case of Jahi McMath has gotten international news. A 13-year-old 8th grader goes into Children’s Hospital in Oakland, California to have surgery on her tonsils and surrounding tissue to help with her sleep apnea. The surgery goes well and she wakes up in the ICU. (I’ll get to that in a few) Suddenly she starts to bleed out of her nose and mouth and passes out before the nurses call the Dr. (According to the family. The hospital can’t comment on that stuff because of Federal HIPAA laws) They do a CT scan and determine she has brain swelling and ultimately her brain is no longer functioning.