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Personal injury lawyers for Jahi McMath want to have the courts rule her alive. In a tentative ruling that could cost the family of Jahi McMath millions of dollars, an Alameda County Superior Court judge said he was inclined to uphold previous determinations that the Oakland girl who made worldwide headlines has died.

The debate over whether McMath died following a tonsil surgery gone wrong at Children’s Hospital Oakland in December 2013 has raged for more than a year. Her family refused to accept medical and legal declarations that she was brain-dead and moved her to New Jersey, where she remains on organ-support machines.

If McMath is alive, she could sue her surgeon and hospital for millions of dollars, legal experts say. If she is dead, she can sue for a medical malpractice wrongful death, but the damages cap in California at $250,000.

In a sparsely attended hearing Thursday in a small Oakland courtroom, Judge Robert Freedman listened to oral arguments in the unprecedented legal case and took them under submission, saying he will issue a final ruling soon. Freedman has numerous options at this point in the case, including asking Jahi’s attorneys to amend their complaint or declaring the girl dead himself, which could send the conflict over her situation to an appellate court.

In an exclusive interview with this newspaper Tuesday, Jahi’s mother said they want to move her back to California, and the family’s attorney hopes to get her death certificate reversed so that can happen. New Jersey allows families to reject a diagnosis of brain death on religious grounds, but California does not.


Before the civil case can even broach who’s to blame in Jahi’s tragic death, the court must determine if she is alive or dead. In his tentative ruling, Freedman said Jahi’s family had earlier opportunities in court to prove the girl was alive, but a judge in January 2014 ruled she was dead, and the county coroner’s office issued a death certificate.

“While plaintiffs allege that ‘[r]ecent evaluations by doctors, including a board-certified pediatric neurologist, confirm that Jahi does not meet the definition of brain death’ … are such allegations in themselves sufficient to reopen a factual issue determined in a judicial proceeding and official death certificate?” the judge asked in his preliminary ruling.

The legal impediment for Jahi’s family is “collateral estoppel,” the principle that a person cannot continue to relitigate the same issue. Attorney Andrew Chang, representing Jahi’s family, said facts have changed since last year.

“In this case, unprecedentedly, over one and a half years later, Jahi is still on life-support maintenance … she’s now 14-and-a-half years old, plus she’s entered puberty, she’s developed breasts, had her first period, and she’s shown to be responsive,” Chang said.

Last year, when Jahi was determined to be dead by Alameda County Superior Court Judge Evelio Grillo, Chang argued it was rushed because her hospital threatened to remove her from a ventilator and the family could not find experts in time to testify she had brain function. And now, he says, they do.

“If we fail to prove she has brain function, then we lose,” Chang said.

The county has twice denied attempts by the family’s attorney, Chris Dolan, to revoke the death certificate.

Thomas Still — who represents Dr. Frederick Rosen, the ear, nose and throat surgeon who operated on Jahi — said Jahi had already been ruled dead.

“Death is final,” Still said. “It is recognized in nature, by statute and science.”

Still argued the law does not allow plaintiffs to return to court indefinitely when facts slightly change, saying the plaintiffs are “proposing essentially never-ending litigation.”

In what at times bordered on philosophical treatises on life and death, Freedman asked the parties twice:

“If life does go on, hypothetically, as improbable as it may seem, and Jahi walks in and says, ‘Hi, I’m here,’ what should the court do?”

Attorney Karen Sparks, who represents Children’s Hospital, said Jahi’s case fell under the Uniform Determination of Death Act, which was created to set guidelines for cases where death was not as clear cut.

“If the plaintiff walks in and talks to the court, we are actually in a different ballgame because we no longer would use the UDDA,” Sparks said. “(If she walked in,) we don’t have to go to a neurologist to determine brain function.”

Asked Chang: “Why are we focusing so much on death? On the flip side is life; life is not static.”

Thaddeus Pope, director of the health law institute at Hamline University, said a lot is at stake in determining Jahi’s mortality.

“Maintaining a brain-dead individual may cost $250,000 per year in machines, medicines, nursing,” Pope said in an email. “She could go on for 20 years (given some prior reported cases). That is $5 million. That does not even include other damages like pain and suffering. That is just future medical expenses.”

A wrongful-death lawsuit, conversely, would max out at $250,000.

Recent court documents indicate Jahi currently receives nursing care through New Jersey’s Medicaid program.

Jahi and her family are suing for personal injuries, negligent infliction of emotional distress, wrongful death and breach of care. In their lawsuit, they claim Dr. Rosen did not notify nurses of an abnormal artery in Jahi’s throat, near the surgery site, that increased the surgery’s risk. They also claim two nurses gave the family conflicting information about what should be done after the surgery to handle excessive bleeding and ignored the family’s request for a doctor.