Judge rules against brain-dead girl's family

Martin Winkfield arrives for a hearing in Alameda County Superior Court to determine the condition of his 13-year-old stepdaughter Jahi McMath in Oakland, Calif. on Tuesday, Dec. 24, 2013. McMath was determined to be clinically brain dead following complications from a routine tonsillectomy at Children's Hospital in Oakland. Dr. Paul Fisher, chief of pediatric neurology at Lucile Packard Children's Hospital, concurred that Jahi meets all the criteria of brain death. less Martin Winkfield arrives for a hearing in Alameda County Superior Court to determine the condition of his 13-year-old stepdaughter Jahi McMath in Oakland, Calif. on Tuesday, Dec. 24, 2013. McMath was determined ... more Photo: Paul Chinn, The Chronicle Photo: Paul Chinn, The Chronicle Image 1 of / 17 Caption Close Judge rules against brain-dead girl's family 1 / 17 Back to Gallery

An Alameda County judge declined Tuesday to force Children's Hospital Oakland to continue providing medical care to a 13-year-old girl whom physicians declared brain-dead nearly two weeks ago after tonsil-removal surgery.

But Jahi McMath will remain on a breathing machine for the time being, as Judge Evelio Grillo kept in place a restraining order until 5 p.m. Monday, giving the girl's family an opportunity to take its case to a higher court.

The judge ruled after a court-appointed doctor - Paul Fisher, chief of neurology at Lucile Packard Children's Hospital at Stanford - examined Jahi and testified that she is legally brain-dead and cannot recover any brain function.

Jahi's mother, Nailah Winkfield, has said she believes Jahi can recover, that God may "spark her brain awake," and that she should have control over all medical decisions involving her daughter.

Speaking to the mother and other family members in a small Oakland courtroom, Grillo said, "I hope you can find some comfort in your religion and the love of your family, so you may get through this. God bless you."

Family's struggle

After the hearing, family members said they had not yet decided whether to seek a different result at the First District Court of Appeal in San Francisco. They said they would spend Christmas Eve at Jahi's bedside, wrapping presents.

"Its heartbreaking, but our faith is still strong," said Omari Sealey, the girl's uncle. "We still have her through the 30th. There's still hope for a miracle."

An attorney for Children's Hospital, Douglas Straus, said the facility extended "extreme sympathy" to the family.

"Our sincere hope," he said, "is that the family finds peace with the judge's decision that Jahi is deceased."

Doctors at the hospital declared the girl brain-dead on Dec. 12, three days after she had surgery to deal with sleep apnea.

The hospital said Jahi's tonsils and adenoids were removed, along with excess tissue from her throat and nose. The girl's family said that she seemed fine coming out of surgery but that blood started coming out of her nose and mouth, and she went into cardiac arrest. They accused the hospital of not responding quickly enough to the bleeding.

On Thursday, Children's Hospital told the girl's family it intended to withdraw the ventilator, prompting the family to obtain the restraining order.

Attorneys for the hospital cited California law, which states that doctors must make a "determination of death" if a person sustains "irreversible cessation of all functions of the entire brain."

Brain-death consensus

The law requires that a hospital provide families with a "reasonably brief period of accommodation" between a finding of brain death and the discontinuing of mechanical support, giving relatives a chance to gather at the patient's bedside.

The Oakland case has raised end-of-life issues that courts in California have wrestled with for years.

The state Supreme Court ruled in 1993, over state officials' objections, that a mentally competent prisoner could refuse life-sustaining food and medication. Eight years later, in anther contentious case, the court refused to let a woman withdraw life support from her terminally ill husband, who was conscious but could no longer express his views.

But legal and medical commentators largely agree that on one issue, the law is clear: Once doctors do a proper examination and find brain death, the person is legally dead.

At that point, "a body is being maintained on a ventilator," said David Magnus, a Stanford medical professor and director of the university's Center for Biomedical Ethics. "This is not a patient on life support. This is a patient who has passed away."

Experience with coma

There remains "a lot of turmoil about the definition of death and whether the brain is or is not functioning," said Marjorie Shultz, a retired UC Berkeley professor of health law and medical ethics who had her own harrowing encounter with the system 18 years ago, when her 19-year-old son's car was struck head-on by a wrong-way driver.

Her son lay in a coma for a month and spent the next three months in what doctors described as a vegetative state, while "we were told over and over there was no hope for him," Shultz said. She insisted on continuing his medical care, and her son now lives on his own and has bachelor's and master's degrees, she said.

"I had the unpleasant experience of not being able to believe doctors and having to fight like hell against judgments that were made prematurely," Shultz said.

But if doctors, using established criteria, make a finding of brain death, she said, "the law takes the position that there isn't anything to argue about, that the person is dead."

Most states agree

Almost every state has a similar law.

The definitive California ruling on brain death was issued in 1983 by a state appellate court in the case of parents who sued to keep a hospital from removing a ventilator from their brain-dead child, who suffered lethal seizures in his third week of life, apparently after parental abuse.

"Parents do not lose all control once their child is determined brain-dead," the court said. "The parent should have and is accorded the right to be fully informed of the child's condition and the right to participate in a decision of removing the life-support devices."

But, the justices said, "once brain death has been determined, by medical diagnosis ... or by judicial determination, no criminal or civil liability will result from disconnecting the life-support devices."