From the Executive Director: Jahi McMath—Brain Death is not Death, It’s Liability Protection

Dana Cody

Imagine your child undergoes surgery and never regains consciousness. Imagine that just before surgery, your child told you “I’m scared, Mommy. I’m afraid I will never wake up.”

Jahi McMath’s mother, Nailah Winkfield, lives with that statement echoing in her head every day. She wishes she had listened to her daughter when Jahi expressed her fear before undergoing a tonsillectomy at Children’s Hospital in Oakland on December 9. Jahi regained consciousness and appeared to be recovering well shortly after the surgery but suddenly began bleeding profusely, triggering cardiac arrest. Although Jahi was revived and placed on a respirator, hospital personnel declared her “brain dead” on December 12 and informed her family they would be stopping all life-sustaining treatment.

Day by day news stories recounted the legal battle between Mrs. Winkfield, represented by attorney Chris Dolan, and Children’s Hospital, whose representatives had been slow to recognize that Jahi was in danger after her tonsillectomy, but were quick to tell her parents that Jahi was “dead, dead, dead.” Behind the scenes, a team of lawyers, doctors, and advocates was working to see that Jahi could be transported to a facility that will treat her with the dignity and care she deserves (see attached declaration [Declaration of Angela Clemente]). For Jahi to be moved, a court order was needed to perform a procedure known as a tracheostomy, the insertion of a breathing tube that would ensure the flow of oxygen to her lungs while she was transported to a facility that would care for her as a human being, not as a deteriorating “corpse” as hospital representatives described her.

The already complex issues of whether brain death is really death and how reliable a diagnosis of brain death is has yet another complicating factor in Jahi’s case: money.

Under California law, non-economic damages are capped at $250,000 for any negligence on the part of the hospital that results in loss of life. The apparent conflict presented to the hospital in Jahi’s case is this: should she live, the hospital would pay $250,000 in non-economic damages, plus the expense of ongoing care. By making the case that brain death equals the death of a human being, the hospital caps their non-economic liability at $250,000 versus that same amount plus the millions of dollars that could be needed to care for and rehabilitate Jahi over her lifetime.

Obviously the worth of Jahi to her mother cannot be described in terms of money. In an open letter to BET.com, she wrote:

She is on a respirator—with air she lives, her heart beats, her kidneys produce urine, she is warm and soft. They have been pressuring me to “pull the plug.” I can’t. I won’t. I can’t let them kill my baby a second time.1

Ms. Winkfield’s comments about her daughter demonstrate what was stated in a publication by Dr. Paul Byrne years before he was a member of the team working to save Jahi’s life. Dr. Byrne is a neonatologist and a Clinical Professor of Pediatrics.

The intrinsic worth of a human being is not in his/her brain or other bodily part but in the whole person, an organism with spiritual and material dimensions united. Death signifies the separation of this unity, which unity is served by the intercooperation of at least three vital systems—the circulatory and respiratory systems, and the entire brain. Therefore, when making a diagnosis of death, it is imperative that no one be determined or declared dead unless and until there is destruction of at least these three basic unifying systems.2

This bears repetition: “It is imperative that no one be determined or declared dead unless and until there is destruction of at least these three basic unifying systems.” Jahi’s heart is beating, her kidneys are functioning, and her body has warmth. It isn’t surprising to know that as this was being written, Dr. Byrne had recently examined Jahi, and as reported in court documents, her arms and legs were moving in response to her grandmother’s voice. He further stated “Jahi is a living person. . . .” Jahi’s mother says it best: “She is warm now. I want my baby to be warm. We need time.”

Ms. Winkfield’s prayer for more time was answered. For the third time, the parties were in court on January 3, 2014 to discuss matters related to moving Jahi to a facility where she will receive the care needed to give her a chance at full recovery. At that hearing Oakland Children’s Hospital finally agreed to a protocol to remove Jahi from their facility, which move took place on January 5. Jahi is now at an undisclosed location in order to protect her privacy and the privacy of other patients at the facility. Attorney Chris Dolan stated that Jahi’s family understands “the odds are stacked against them.” However, Jahi is now stable and receiving proper care in an environment that is not hostile, where she is not being referred to as a “corpse” and where there is not constant pressure to end her life. Noteworthy is the fact that many patients have recovered from a diagnosis of brain death. Should Jahi be one of those individuals who wakes up after being declared brain dead it will be interesting to hear Children’s Hospital’s response.

When there are conscientious objections to brain death as the standard for declaring a human being deceased, as brought painfully to light by Jahi McMath’s case, it is time to demand that before a diagnosis of death, one must see the destruction of the three unifying body systems. At the very least, a family’s sincerely held beliefs in regard to life should be respected. The statute defining brain death in the State of New Jersey accords individuals such respect:

26:6A-5. Death not declared in violation of individual’s religious beliefs. The death of an individual shall not be declared upon the basis of neurological criteria pursuant to sections 3 and 4 of this act when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria pursuant to section 2 of this act. L.1991,c.90,s.5.

Life Legal Defense Foundation became part of the team working to see that Jahi received treatment when Chris Dolan contacted the office prior to the first TRO being issued by the court. LLDF was able to provide model pleadings to assist Mr. Dolan, who learned of LLDF’s experience with forced death cases through a contact at Terri’s Life and Hope Network. LLDF also committed resources to see Jahi moved so that she will be treated with the dignity she deserves as a living human being. LLDF will continue to do so when others are under threat of death and until the sanctity of human life is restored in our culture.

Lastly, LLDF offers continuing legal education training for attorneys interested in assisting with the issue of forced death. LLDF’s most recent in-person training was in Jacksonville, Fla., February 20, 2014. If you are interested in sponsoring a continuing legal education in your state, please contact LLDF (707) 224-6675.3


1 Open letter to BET.

2 Byrne, Paul, et al., Life, Life Support, and Death: Principles, Guidelines, Policies, and Procedures for Making Decisions That Respect Life, American Life League, 1996 PDF).

3This course is also available as an online self-study course, free of charge. Attorneys may earn CLE credits. Please see LLDF CLE page for more details and the course itself.

The already complex issues of whether brain death is really death and how reliable a diagnosis of brain death is has yet another complicating factor in Jahi’s case: money.

[A] team of lawyers, doctors, and advocates was working to see that Jahi could be transported to a facility that will treat her with dignity and care

it is time to demand that before a diagnosis of death, one must see the destruction of the three unifying body systems.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.