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Video shows teen isn't really brain dead, lawyer asserts; revocation of death certificate sought

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The family of a 13-year-old California girl declared brain dead after tonsil surgery is seeking to revoke her death certificate, offering a video as proof that she can respond to commands.

The girl, Jahi McMath, was declared brain dead in December after she went into cardiac arrest following the surgery at an Oakland hospital. But McMath’s lawyer, Christopher Dolan, showed reporters two videos Thursday showing McMath moving her limbs, the San Jose Mercury News reports. He also introduced an expert who said diagnostic tests indicate she doesn’t meet the guidelines for brain death. The Los Angeles Times and the San Francisco Chronicle also have stories.

McMath’s family could only recover $250,000 under a malpractice cap if the girl is dead, but they may be able to collect much more to pay for her medical care if she is found to be alive, the San Jose Mercury News says.

After the family won a court order allowing them to remove McMath from the Oakland hospital, they took her to a Catholic hospital in New Jersey and then to a New Jersey home. She is living there with her mother and stepfather and is cared for by round-the-clock caretakers, Dolan said. She breathes with a ventilator.

The San Jose Mercury News described the videos, said to be recorded in the last month. In one video, McMath’s mother asks McMath to move her foot, and about 40 seconds later McMath’s foot twists upward. In another, McMath’s mother asks her to move her hand, and the girl does so four seconds later. McMath’s mother asks the girl to move her hand harder, and the girl again moves her hand.

Dolan said McMath is responding to commands, and the movements are not mere spastic activity that can occur after brain death.

Appearing via video at the press conference on Thursday, Phillip DeFina, the chairman of the International Brain Research Foundation, said an MRI shows there is blood flow to McMath’s brain and the brain is intact. She does not meet the guidelines for brain death, he said.

Another expert who worked on the case is Dr. Charles Prestigiacomo, chair of the neurological surgery department at Rutgers. He told the Los Angeles Times that the case raises questions about whether there “is something we might need to change in our basic teaching” on brain death.

But Arthur Caplan, director of the division of medical ethics at New York University Langone Medical Center, told the Los Angeles Times that some neurons can still be firing in the brain after brain death. “I think you have to be very careful,” he told the newspaper, because a report undermining the certainty of death will “cause a tremendous amount of uncertainty, grief, worry on the part of millions and millions of people.”