Lisa Leff and Terry Collins

Associated Press

13-year-old California girl declared brain dead after tonsil surgery

Girl needs two surgeries before she can be safely transferred to a long-term care facility

Family has until Jan. 7 to try to get her into long-term care or respirator will be unplugged

OAKLAND, Calif. (AP) — The family of a 13-year-old California girl declared brain dead after tonsil surgery is encountering difficulty in obtaining two surgeries that she needs to undergo before she can be safely transferred to a long-term care facility.

A lawyer for Children's Hospital Oakland said that it is unwilling to allow an outside doctor to fit Jahi McMath with the breathing and feeding tubes that the family has requested.

The hospital will not permit the procedures to be performed on its premises because Jahi is legally dead in the view of doctors who have examined her, lawyer Douglas Straus wrote in a letter to the girl's family.

"Performing medical procedures on the body of a deceased human being is simply not something Children's Hospital can do or ask its staff to assist in doing," he said.

The refusal appeared to reverse the position articulated Monday by a hospital spokesman. He said the hospital would allow a doctor retained by the family to insert a feeding tube and to replace the oral ventilator keeping Jahi's heart beating with a tracheal tube — surgical procedures that would stabilize Jahi if she is moved to a facility willing to keep caring for her.

Christopher Dolan, the lawyer for Jahi's mother, Nailah Winkfield, said he received the news as he tried to confirm the conditions under which the hospital would have allowed a visiting doctor and nail down the long-term care facility that might accept the girl as a patient. Dolan said he has been talking with the New Beginnings Community Center in Medford, N.Y., an outpatient client for people with traumatic brain injuries, and with an unnamed facility in Arizona.

The New York facility didn't immediately return calls seeking comment.

"They're speaking out of both sides of their mouths. They say one thing and we go down that road, and then they say something else," Dolan said of hospital officials. "The hospital said, 'Bring us a doctor' and we said, 'Tell us the conditions' and now, they've wasted a half a day of our time. We don't have much time."

Hospital spokesman Sam Singer said later: "This is academic. They have not produced a single physician."

Meanwhile, a state appeals court on Tuesday refused to order the hospital to insert the tubes, saying the issue has to go first to the lower court judge who has ordered the hospital to keep the girl on a ventilator until Jan. 7 pending the family's appeal. The 1st District Court of Appeal said it would consider the issue at a later date, if necessary.

Straus, the hospital's lawyer, reiterated in his letter that the hospital would release the girl's body as soon as her family provided a detailed plan outlining how the move would be accomplished and written permission from the coroner. But he said neither has been submitted.

"No facility has stated, unconditionally or otherwise, that it is prepared to immediately accept Jahi's body," he wrote.

Jahi underwent a tonsillectomy and related procedures at Children's Hospital on Dec. 9 to treat sleep apnea. Her family said she went into cardiac arrest after she started coughing up blood in the recovery room. She was declared brain dead three days later. The hospital then moved to take her off the machines that are keeping her heart and lungs going a few days before Christmas.

Doctors at Children's Hospital and an independent pediatric neurologist from Stanford University have concluded Jahi is brain dead.

Her family, citing religious beliefs and the hope that she will pull through, wants to continue life support. Alameda County Superior Court Judge Evelio Grillo initially ruled that doctors could remove her from the ventilator at 5 p.m. Monday, but two hours before the deadline gave the family another week to find a place to move her.

Straus filed papers Monday in both the state appeals court and in a federal court where Jahi's mother also has sued. He is opposing the family's request for an emergency order to keep Jahi on a ventilator indefinitely.

"The Superior Court correctly concluded, after three days of hearings and based on uncontroverted evidence, that Ms. McMath is, sadly, deceased," the papers state. "Turning off a ventilator that assists in delivery of oxygen of a dead person causes no irreparable harm — regardless of the parental or religious beliefs of the decedent's family."

The federal court has said it does not plan to act on the request until the case has worked its way through the state courts.

Meanwhile, Jahi's family has been getting advice and help about moving Jahi to a long-term care facility from a foundation started by Terri Schiavo's family.

Bobby Schindler, executive director of Terri Schiavo Life & Hope Network, said it is important for families and patients to know their rights in these situations.

Schiavo, who suffered brain damage after a heart attack, was at the center of a years-long right-to-die struggle that ended in 2005 when her husband removed her feeding tube over objections from her parents.

"Families and individuals must make themselves aware of what so-called 'brain death' is and what it is not," Schindler said in a statement.

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Leff reported from San Francisco. Associated Press writer Channing Joseph in San Francisco contributed to this report.