One of my readers (thanks to Tamie for sending the link to the Trials & Tribulations blog) sent me a link to the lawsuit brought by Nailah Winkfield (Jahi McMath's mother) against Children's Hospital Oakland and Dr. Frederick Rosen, Jahi's otolaryngologist. There are some rather interesting things in the complaint, so I thought I'd explore them a bit here.
Before I start, however, I'd like to remind everyone (including the unnamed troll) that the events and timelines in the complaint do not necessarily reflect reality. This is merely the family's version of the truth. It is a well-known fact that eyewitness testimony is often highly inaccurate, so while reading through the complaint this must be kept in mind.
Page three is where it starts to get interesting.
The end of page 2 states "In 2013, defendant ROSEN diagnosed JAHI McMATH with sleep apnea. ROSEN recommended a complex and risky surgery for sleep apnea which included the removal of her tonsils and adenoids (an adenoidtonsillectomy); the removal of the soft pallet and uvula or a uvulopalatopharyngoplasty (UPPP) and a submucous resection of her bilateral turbinates."
Immediately evident should be the fact that this was not a simple procedure as was often portrayed by the media. It wasn't even one procedure - it was three. Also evident should be the misspelling of "soft pallet" on line 2. A pallet is a platform or a crude bed. The palate is the roof of the mouth. While it may seem like I'm being awfully pedantic, this complaint is a legal document not a stupid blog post, so for fuck's sake make sure it's grammatically correct.
The complaint then explains how it is "usually recommended" to try CPAP before surgery for sleep apnoea, and if surgery is to be done, that it is "usually recommended" to remove the tonsils and adenoids first prior to the more extensive procedures. It then uses webmd.com as a source. I'm not sure if this is typical for legal complaints, but there it is. Maybe a lawyer can shed some light on this, but it seems rather amateurishly phrased.
Moving on to the meat of the document: the complaint.
Paragraph 11 of the complaint states that Jahi was taken to surgery at 3:04PM, and that despite Dr. Rosen noticing a "suspicion of medialized carotid on right", he failed to mention this to anyone, including the recovery room (PACU) nurses and paediatric intensive care (PICU) nurses. A medialised carotid artery is a congenital anomaly where the carotid artery doesn't run in a normal course. It is a known risk factor for catastrophic bleeding in patients undergoing tonsillectomy:
In paragraph 12, the complaint says that Jahi's parents were denied permission to visit Jahi, and after 30 minutes they "decided to enter the PICU to visit JAHI".
In paragraphs 13-15, the document details how Jahi's mother was first instructed to suction the blood from her mouth, then admonished for doing so, then admonished for not doing so after she stopped. While it's true that different nurses may do things slightly differently, I'll wait to read the nurses' notes before commenting further on this.
Paragraph 16 starts to get absurd. The complaint states that "the nursing staff at CHO did not appear to be contacting a physician since none was coming to her daughter's assistance". I can say with near certainty that a physician (either Dr. Rosen or one of the paediatric intensivists) was called at some point during this prolonged episode of bleeding. I can't imagine a series of nurses strolling by a bleeding 13-year old girl, handing her some paper towels and a Yankauer suction, and not calling either the surgeon or the intensive care doctor. Again, I'd have to see the nurses' notes to see who was called and when, but I don't believe this for one moment.
Paragraphs 17-19 detail Jahi's continued bleeding and ultimate code.
nasogastric tube is inserted and the stomach is "pumped". No such tube is placed into the lungs. This seems a specious and spurious claim.
The next few paragraphs explain what happened over the next few days after Jahi was declared brain dead.
And then paragraph 24 contains the almost laughable claim that was plastered all over the news. Supposedly when Jahi's mother met with Dr. David Duran, CHO's Chief of Paediatrics, he "began slamming his fist on the table and said, 'What is it you don't understand? She is dead, dead, dead, dead!'" I find it very difficult to believe that anything remotely resembling this farce happened. At all. I've met some pretty damned callous doctors in my day, but not a single one would ever treat a family like this, especially a family that just lost their 13-year old child.
The last thing I'd like to mention is that the complaint says she is dead, but also that she isn't. No, really:
There is more to the complaint, but nothing that I really feel needs to be shared or discussed.
The complaint is dated March 2, 2015, and the next phase of the suit (gathering of information) can take months or more. Regardless, I have a strong suspicion that the hospital and Dr. Rosen will both settle out of court, because I doubt anyone (except possibly the family and Chris Dolan) wants to see this dragged out in public again.
One last note: I am in no way saying that the actions of Dr. Rosen, the nurses, any of the other doctors, Nailah Winkfield, or Sandra Chatman, was right or wrong. I am not condoning or condemning anyone or anything. Whether anyone was actually at fault is still unknown. But what people tend to lose sight of in situations like these is actually the most obvious thing of all: the loss of Jahi was a tragedy, and something clearly went drastically wrong.
OK, Doc, I'm a lawyer. I don't practice in California, and I don't handle medical malpractice cases, so I don't expect anyone to accept my personal opinon as anything more than that...but...ReplyDelete
Why the lawyer says she's dead in one sentence and says she's alive in the next is really simple to explain. In legal pleadings you throw in all your possible theories of the case, even if they are inconsistent. You don't know what evidence will be uncovered in discovery. By the time you get to trial, you know what your theory of the case will be, but in the early stages....the sad truth of the matter is that a living, suffering child is worth a bigger jury award than a deceased child. And given California's cap on noneconomic damages ....So he has to keep her "alive" unless and until the evidence establishes otherwise.(which it will, of course).
I am surprised at how poorly drafted the complaint is, given that the attorney had to have copies of the hospital records in his possession when he put pen to paper. That's not always the case, of course, but we know from the prior court proceedings that the family did obtain the hospital records when they transferred Jahi to another facility. As an attorney, you have to advocate your client's position, but you must also do due diligence to verify that your client is being somewhat accurate.
In the state where I practice, you can't bring suit against a doctor for medical malpractice unless you have the affidavit of another doctor, someone in the same specialty, who will say that the injury or death was caused by negligence. I don't know what the rule is in California, but I would love to see that statement, if it exists.
What happened to Jahi is a tragedy, but whether it was caused by someone's negligence remains to be seen.
Calif doesn't require another MD's affidavit (certificate of merit) in med mal.Delete
Songbird - thanks for your explanation of the simultaneous "dead" and "alive" premises. I'd already figured this was pretty much a throw-it-all-up-against-the-wall-and-see-what-sticks move.Delete
But... this lawsuit didn't originate in New Jersey, where one could argue that the family did not agree that Jahi was dead, based on their personal ethical and religious beliefs. It was filed in California, where it's *already* been determined that Jahi *is* legally dead, and has been so since January 2014. And, it's also on record that a petition to have that declaration reversed last year has been unsuccessful.
So, what's the legal purpose of continuing to hold forth the "alive" theory, if the intention is either to bring the matter before the California courts, or seek a private settlement from a California hospital? While it's understandable that a medical malpractice claim would seek compensation for the costs of medical care for a living patient who was rendered permanently disabled by the alleged negligence, what's the legal argument or precedent for seeking compensation for medical maintenance of a body of a person already determined to be legally dead?
I'm also an attorney and I endorse songbird's post.Delete
The family clearly has hoped to prove "aliveness" but has covered its bets by claiming both med-mal for a living/disabled plaintiff and wrongful death for the decedent's survivors.
CA voters rejected MICRA (med-mal nonecon damaages cap) repeal and the CA Supreme Court later avoided finding that MICRA might be unconstitutional
Thank your for your professional commentary on this case. From my impression there is just one thing that I do find strange and, if at all it is a fact opposed to an opinion or impression, would mean that there is blame to put on the hospital: why did no doctor appear when it was clear that Jahi was losing an unusual amount of blood? I can see the surgeon not being available because he is sticking up to his knuckles in the next patient, but isn't the whole point of an intensive care unit or waking room that there is a doctor close by/on call that will appear promptly should there be any complications? So why did no doctor come to have a look at the bleeding?ReplyDelete
Still, regardless of what happened and who (if anybody - let's face it: every operation bears risks and sometimes you just end up on the wrong side of statistics for no good reason) is to blame, I just hope they go on to bury the poor dead girl soon!
So why did no doctor come to have a look at the bleeding? This is all hearsay, by Jahi's intelligent mother. cough, cough. Like Doc said, can't wait to see the nurses notes off her chart. I would like to see this thrown out of court.Delete
and of course, for that to happen, it needs to make it TO court...Delete
Anonymous, this is exactly why I prefaced my question with " if at all it is a fact opposed to an opinion or impression". We won't know before we see the other side of the story. The only thing I'm saying is that IF it REALLY took that long for a doctor to show up, that would, in my opinion as a layman, justify putting some blame on the hospital.Delete
That said, her family's behavior of busting in without permission probably pissed the staff off and they were, at the point the bleeding started, already on the attentionseeking/drama list, so their repeated claims might not have been taken as seriously as they should have been and while that, in theory, shouldn't influence the way the patient is treated, it's an all too human reaction to tune everything they say down a couple of notches.
I'm not trying in any way to justify the ramblings and actions of a crazy person. I'm just trying to not automatically default to disregarding everything she says and put all blame solely on her without further thought.
Maybe it's me being European, but I always get suspicious with one-sided stories and black&white thinking. In most cases both sides hold some pieces of truth and there isn't only one party to blame for all that went wrong.
Naw, I'm American, and I don't buy into black and white stories either. Especially since our media is based off views and ad revenue, so they'll only tell the most shocking parts of the story for page clicks.Delete
But I do believe there's a seed of truth in most lies. I don't think the family is outright lying, but I do think there's some exaggeration going on combine with some deliberate omission of information.
A few minutes without a doctor could have felt like a few hours. When I was in a waiting room, it felt like eternity when in reality it had only been 15 minutes.
The doctor could have gently told them their daughter was dead, and they didn't like the news so they took it hostilly (and then exaggerated)... Or they could have been shouting at the doctor and aggressively arguing with him for a few minutes and only reported what he said at his breaking point. I never believe any story where a person claims they were being perfectly respectful and reasonable and someone just flew off the handle for no earthly reason that they can understand.
She may not be a sympathetic victim in this (and I stand that she is a victim in that she lost her daughter), but grief makes even chill people assholes. Discounting what someone says simply because you don't like the delivery is as silly as refusing to cash a check because it's the wrong color.
I'm sure the Doc can give us some insight, but my speculation would be that the family's perception is inaccurate -- that when you're waiting for a doctor to arrive, a few seconds can feel like minutes, and 5 minutes can feel like 20-30 minutes.ReplyDelete
Also, not all hospitals are created equal. I've been to both good and bad ones. The good ones are amazing, the bad ones are nightmares where the nurses aren't being malicious, they're just over staffed, over worked, and the powers that be are incredibly disorganized. I'm not saying this is the case, just that it's not outside the realm of possibility for somewhere like Oakland.Delete
and considering the family has already given multiple conflicting accounts in the media...Delete
Please don't slander Oakland on this one. Children's Hospital of Oakland is affiliated with Stanford University and is THE premier children's hospital in the San Francisco Bay area, a region full of good hospitals.Delete
I don't know what happened, but CHO has an excellent reputation. I'm having trouble believing this "no doctor ever showed up" story.
I didn't slander anyone. ;) I'm sure CHO is an excellent hospital.Delete
I simply stated it is not outside the realm of possibilities in a city with such a high crime and poverty rate. Not only because those types of hospitals are (or can be) underfunded, but they're also crowded since family doctors will take children on medicaid, not adults (and unless you have a child, good luck getting medicaid for yourself). So people are left little choice but to either go to urgent care, or the ER to be seen. These people can't afford to pay the hospital bills. The hospital isn't getting reimbursed by the state for these people because of budget cuts. Hospitals have to cut costs, less people are hired, -blah blah social commentary-, etc...
That aside, even good hospitals can make mistakes and shouldn't be above question and scrutiny. Boston Children's Hospital has lots of accreditation and praise, but it still has it's fair share of horror stories.
My personal opinion is that no one did anything wrong on either side, but the hospital will still settle, because it's cheaper than being in a Mexican Standoff with a family while the legal meter is ticking away.
Fair enough Shark. I have taken a child to CHO ER (with a minor though alarming injury) and I did see a fair number of gunshot wounds go in ahead of us. So you're not entirely off. And of course everyone, even the best doctors and hospitals, make mistakes. I'm still very skeptical of the claim that a 13 year old child was allowed to bleed out for HOURS and no doctor ever showed up at a good hospital like CHO.Delete
Of course this will be settled, so we will never find out.
Anon, I would just like to point out that when you walk into an ER they have a protocol to follow and triage you and take you in based on your condition. Someone bleeding out from a gunshot wound would normally take precedence over the child with a minor, even if alarming. And of course "alarming" is a subjective complaint.Delete
Agreed. As a parent, I remember being "alarmed" at seeing my toddler fall and sustain what looked like a "huge" gaping wound in her forehead. The wonderful ER staff handled this "traumatic injury" with two pieces of butterfly tape...they told me it was less likely to leave a scar than stitches! :)Delete
Seriously, I'm wondering if the amount of bleeding reported by the family is unintentionally exaggerated too. Those of us who aren't doctors and nurses typically don't see bleeding on a routine basis. So, we might perceive something as a "huge" quantity of blood, when it's actually much less, and perhaps somewhat routine, in a post-surgical context. It's possible that the visible bleeding observed by the family was alarming to them, but not so unusual to the nurses observing a recovery room patient after surgery, so that's why they're feeling that the staff was negligent in not insisting that a doctor immediately be summoned when it was noticed.
that possibility has been mentioned, and it fits with the version of the story in which the nurse gave them a basin for catching the blood. someone a bit more knowledgeable than I am explained that the basin provides an objective means of measuring the blood, as well as not being invasive like a suction wand.Delete
Hey Doc, perhaps you can clarify something else. Dolan presented a single slice of an MRI (an unidentified one that we can only assume that it was Jahi's) and your favorite troll posted the following on the family's FB page to encourage them. I don't know as much as you do, but I am pretty darned sure that with one single slice of an MRI there is no way to determine all of this and if I am right (or even if I am wrong) I would like to hear from an expert (that be you!). Please note that the following is copy/pasted and I am posting it here only to ask your opinion, I do not want to imply that I believe this claptrap!ReplyDelete
Here is the quote:
"Good morning, I just happened to look at Jahi's MRI so I thought it'd be a good idea to identify and make out a list of all surviving cortical areas and their functions in the brain. Here are the list: 1. The Refrontal Cortex appears intact. No evidence of liquefaction. . Function - Problem solving, Emotion, Complex Thought. 2. The Motor Association Cortex (intact). Function - Coordination of complex movement. 3. The Primary Motor Cortex appears to be severely damaged. Function -Initiation of voluntary movement. 4. The Primary Somatosensory Cortex also appears damaged. Function - Receives tactile information from the body. 5. The Sensory Association Cortex appears intact. Function - Processing of multisensory information. 6. The Visual Association Area is intact. Function - Complex processing of visual information. 7. The Visual Cortex is intact. Function - Detection of simple visual stimuli. 8. The Wernikce's Area is intact. Function - Language comprehension. You might be wondering why I'm posting here. It's because I believe that Jahi is alive. She maybe severely disabled but not dead. i'll e back later to explain things further."
End of the moron quote
funny, I showed it to a guy with only minimal expertise in reading MRI prints, and his first response was "that's bad."Delete
I pulled up a comparison picture of a healthy brain, and the difference was so huge I doubt any intelligent person could fail to see the difference.
Ken, I agree with you. Benton the troll apparently does not. I just wanted Doc to give his opinion. which will more than likely be that she is still dead! :-)Delete
Let's start with the obvious. "Genius" Benton can't even name the parts of the brain he allegedly looked at correctly. Refrontal? Did he mean prefrontal? Strike One. He claims there's "no evidence of liquifaction" when there's clear and unequivocal evidence of hydrocephalus ex vacuo. Only a clueless moron would miss that. Bzzzt. Strike two. And then we'll finish with the fact that a single slice of MRI shows only a small portion of any of these structures he mentions, so no assertions that the entire structures are "intact" (let alone function) can be made on the basis of one MRI slice. Strike Three. He's out!Delete
In some ways I think the best thing that could come from the lawsuit is the release of records relating to the events. Right now the public is only able to see the family's side of the tale. Now this could also be problematic as I know what I have read documented in charts (I'm not perfect, but I do my darned best to keep it pertinent, concise, and factual). When it comes to something like this, there is story A, & Story B, (and possibly, C, D, E, F, G, . . .) and the truth lies somewhere in between.ReplyDelete
I am hoping for no settlement for the same reason. This scamily has ha CHOs name dragged through the mud. I would love them to have a chance to set the record straight.Delete
The hospital will settle because they are a corporation that doesn't care about abstract things like "right" and "wrong", they care about bottom line. Bottom line is it's often cheaper to settle.Delete
If I were the doctor, I'd just settle. He has nothing to prove, he's still at work doing his job. No one takes the family seriously except a few radical followers. "Setting the record straight" is for the rich and naive idealists. Some things just aren't worth the fight.
I've refunded customers I shouldn't, and decided not to pursue others in court because sometimes the hassle and headache of dealing with these people isn't worth the money, and more pressingly the time it takes to finish a single case. Winning is relative, and in court the only ones that win are the lawyers.
Litigation is expensive and onerous and it's highly, highly unlikely that this will go to trial.Delete
Doc writes: "While it's certainly possible that Jahi aspirated some blood during her ordeal, I would find it very hard to believe that 2 liters of it made it into her airway."ReplyDelete
Agreed. The total lung capacity (TLC) of a child Jahi's age is only around 1800 to 2000 cc max. So, what this lawyer and the family are claiming is that the lungs were filled completely with blood. Even if one granted them the assumption that there wasn't laryngospasm, diverting most of the bleeding down the esophagus and into the stomach, so that the blood actually was able to pour unchecked down into the lower airways, they wouldn't be able to suction most of it back out. They'd only be able to reach the blood in the largest of airways, basically the amount of area that comprises the anatomical deadspace, roughly 150 to 200 cc. This claim of theirs to have taken 2L of blood from the lungs is absurd on its face.
Also, the claim that it's "usually recommended" (per WebMD, what a hoot!) to try CPAP first for severe pediatric sleep apnea is dubious. They seem to be applying the adult OSA treatment standards to a pediatric case. In pediatric sleep apnea, the first line of treatment is surgical. Had they bothered to consult the clinical practice guidelines of the American Academy of Sleep Medicine, the American Society of Pediatric Otolaryngology, or the American Academy of Pediatrics, they would have discovered this fact. It's not surprising that the writer of their court document, who couldn't even be bothered to correctly spell 'palate' would also not be bothered to consult the appropriate set of treatment standards. Gah!
and aren't there rumors that they doctor shopped to find one who would go straight to surgical measures?Delete
There have been unsourced rumors about nearly everything. If we acccept them just bc they're appealing we're no better than the rumorists on the anti-science side.Delete
@Ken Brown, yes, there are rumors they 'doctor shopped'. How true those rumors are I have no idea. It's doubtful, however, that CPAP was went totally unconsidered in all this, as the complaint seems to suggest.Delete
The diagnostic PSG (polysomnogram/overnight full sleep study), which even the family's complaint notes Jahi underwent, often includes several hours of CPAP titration/trial after enough data is collected to confirm the obstructive sleep apnea diagnosis and severity. This is to see if the OSA is responsive to possible CPAP use. The patient will be brought back into the lab later for a mask fitting and full night titration of CPAP if that is the treatment option eventually selected.
Also, depending on what the ENT saw when he examined Jahi's airway, he may have decided, based on the exam, that CPAP was unlikely to be successful treatment for Jahi. We'd really need to see patient records to evaluate his recommendation for surgery and why he elected the specific combination of surgeries performed.
right; I have heard rumors both ways: that there was doctor shopping because they didn't want to be bothered to use a CPAP, and that the nature of the problem was such that CPAP is of limited effectiveness.Delete
neither case really makes the case for it being negligence on the part of CHO.
The use of WebMD rather than the correct treatment standard could be sloppiness but could equally just be that this document is neither intended nor expected to be a balanced statement. Their lawyer is an advocate for their side and (s)he is arguing that the standard was not followed. If the other side replied they would almost certainly argue that the adult treatment standard is not the correct one to apply here, but it doesn't look like we will see that because the complaint has not been served. I don't think they ever intended that it be.Delete
The complaint is there to demonstrate what bad publicity this could all be for the hospital and convince them that they should settle quietly to make it go away. Suggesting that the hospital doesn't apply the correct standard of treatment is good for that, however dubious the accuracy.
Doc: This complaint was never served on the defendants, according to court records. The deadline to serve is within 60 days of filing in California and it's way past that. Plaintiff lawyer Bruce Brusavich's strategy is unusual, in that he publicized the filing for all to see, but didn't follow through with service. If his plan was to release the "facts" to the public and thereby intimidate Rosen and CHO into settling without going through the discovery process, I believe he's playing a losing game. Although going to trial is extremely expensive, I can't believe the defense would agree to settle without deposing Jahi's mother and grandmother under penalty of perjury. I worked in medical malpractice litigation on the plaintiff side and have never seen a case settle before initial discovery procedures were completed. Also, this complaint wouldn't have made it out of my office as written. It's sloppy work product and Brusavich should be embarrassed.ReplyDelete
Really, it wasn't filed with the court clerk nor served? Nothing about this case should surprise me anymore.Delete
It was filed, but not served. I went to court to check.Delete
If it's true the defendants were never served and the 60 day period has definitely expired, they obviously didn't follow the court orders. Or can they still show proof of service sometime before the 7/24 case management hearing? If they fail to do so by then, the plaintiffs must show cause why they shouldn't be sanctioned. If they can't show cause they risk the pleading being struck or the dismissal of the action. This is according to the court order which is available to view in its entirety, without charge, on the court website. The next month will be interesting to say the least.Delete
Does anyone have any theories as to why Jahi"s biological father, Milton McMath, is named as a nominal defendant? Of the many curious aspects of this case that certainly stands out.Delete
Because he's a necessary party, not a "real" defendant.Delete
Calif Code of Civil Procedure, sect 382: -- "If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."
in plain english, "nominal defendant" is "someone who specifically isn't involved either way"Delete
in other words, he won't have to pay, but if nailah hits the jackpot she won't share with him, either.
A nom def and heir would not be de facto excluded from a wrongful-death award.Delete
Thanks for the explanations. I was confused since plaintiff and defendant are adversarial positions I figured a person was either one or the other. Are any of Nailah's baby daddies involved in the lives of her children? I remember reading somewhere that at least one was taking care of their son back in CA.Delete
Anonymous 16 June @ 5:01Delete
I was tempted to contact Brusavich's press liaison to ask when (or if) the defendants would be served. Apparently no reporter has cared to follow up with them after their press release regarding the lawsuit. If the parties settle will it be made public at all? At least Brusavich seems to post when they get large settlements for their clients. It would be frustrating to never know the outcome after all this time.
Thank you for taking the time to walk us through many of the details in the complaint, Doc.ReplyDelete
I noticed a few spelling, grammar and punctuation problems in the text. That kind of inattention to detail in a medical lawsuit filing doesn't reflect well on the firm.
Do any of our legal or medical experts know what types of information are admissible in discovery, and whether media interviews or social media might be used?
As I understand, the next step after filing is for discovery to take place for both sides and for independent parties to recommend whether enough evidence exists in the complaint for the matter to proceed - is that correct?
Also, has the family shared any photos or detailed updates this year? I haven't been able to find any, and of course that makes my imagination run wild after such frequent posts for most of 2014.
It's standard procedure to start the discovery process with exchange of interrogatories, request for admissions, and request for production of documents and things. The defense would certainly ask for photos and posts that the family put out on social media, which are all available on one website put together by a person who believes the family are scammers. The posts and photos are damning and Brusavich would have a difficult time proving they're irrelevant. Also, there is no "evidence" in the complaint as filed. The evidence lies in the medical records, which must be reviewed by independent experts to reach to any valid conclusions and opinions about what really happened. That's why it's difficult for me to believe that the defense would settle before discovery.Delete
I haven't seen any photos that they can prove were taken less than year ago.Delete
Here's my speculation.ReplyDelete
Jahi's mother is, quite obviously, a difficult client. She won't accept that Jahi's is dead, and she cannot accept a settlement in the range the insurers for the hospital and the doctor would be willing to offer. The attorney is between a rock and a hard place.
There's a one year statute of limitations for medical malpractice, meaning the attorney had to file his suit within a year of Jahi's injury. But if he actually serves the suit, discovery begins. Better to leave the suit in limbo.
In most cases, the defense won't be willing to discuss settlement prior to taking discovery, but this is a high profile case, there have been related court proceedings, and the insurers have considerable information in their possession. So I can see the insurers making some sort of offer in the event suit is actually served.
I can't see the suit being dismissed on the merits before trial. Too many factual disputes. But I can see a dismissal on procedural grounds -- it seems to me the attorney is doing nothing to prosecute the claim.
And yes, people should be aware that what you post on social media can become very relevant to your lawsuit.
Just in passing ... Calif has a three.year S/L for med mal suits on a minor's behalf.ReplyDelete
Actually, this may be more complex. CA Statue of limitations allows three years for medical malpractice "actions by a minor." However, since Jahi is legally dead, the lawsuit for wrongful death must be filed by her adult parents and they are likely limited to the one year term.Delete
Statue of limitations laws are complex and require competent legal analysis and sometimes judicial review to determine (I have neither).
Additional items of interest regarding this issue of limitations. The lawsuit, as filed, has three Causes of Action - the first does name Jahi as the Plaintiff but the "injuries" would only accrue if Jahi were considered alive. The two remaining Causes, for emotional distress and wrongful death, only list the adults as plaintiffs (not Jahi).Delete
California Code of Civil Procedure --Delete
"335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:
"335.1. Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another ..."
"340.5. In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. "
"...the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. "Delete
Jahi died in December of 2013. How can you willfully deny a legal determination of death for one year and three months (March 2014) and then file suit for injury? It doesn't make sense. The code clearly states "...one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever comes first."
This case is just so bizarre on so many levels. A patient dies in a CA hospital, all legal challenges regarding the diagnosis fail yet a court rules that the body can be released to the family. A death certificate is issued before the family whisks the body to NJ after finding a doctor who will admit Jahi into another ICU. Testimonials from other doctors at this hospital were never mentioned when Dolan tried to get the death certificate rescinded so one can assume they didn't share the belief that Jahi was, in fact, alive. At the least they weren't willing to attest to this in court. The suit is withdrawn for lack of compelling evidence. So legally what is her status in NJ? You can't be dead in one state and alive in another. Since her brain death didn't occur in a NJ hospital the religious exemption should be a moot point. The suit is filed in a CA court where her legal status is dead. CA does not have the religious exemption that allows one to keep a deceased person in limbo indefinitely, therefore, legally how can they claim the three year statute of limitations regarding filing a lawsuit. Does anyone know of a precedent for a case such as this? If Dolan had managed to find compelling evidence since last fall to rescind the death certificate he would have done so by now. Instead the case is handed over to a new attorney who files suit in CA for both injury and wrongful death while the body remains in NJ on somatic support. It seems this case is truly unprecedented and opens a tremendous can of worms (no pun intended) regarding end-of-life issues, especially in the realm of death by neurological criteria. Hopefully, Professor Pope can weigh in here or on his Medical Futility Blog.Delete
For medical malpractice (CA), one also has to give notice to the defendants of the pending action 90 days before filing. If this is done within 90 days of the one-year limitation on filing, the filing limitation is tolled for an additional 90 days - giving one an effective one year+90 day statue of limitation to file. The March 3, 2015 filing is then close to that limit.Delete
Jahi is legally dead in NJ as well as CA. By default, such death certificates are valid in all states. NJ's religious exemption law applies if requested prior to a death determination - not after a determination has been made and certified. Most likely, any "legal authorities" in NJ simply are not or do not want to get involved and have not been asked about Jahi's legal death status.
Thanks for explaining. I had read others mention that the suit was filed "just in time" but didn't know what they meant. I guess it really did make it just under the wire.Delete
Thank you for hifhlighting some of the medical issues. The complaint was poorly written and they have Dr Duran's name spelled wrong, s/b Durand. CHO has not been served and I think this is a tactic to illicit a settlement offer. CHO can offer a settlement along the process at anytime. I would think that they would want an opportunity to respond to the complaint, since the family and their team did such a smear job. I'd love to be a fly in the room buzzing around as depositions are being given. I like many others want to hear the other side.ReplyDelete
If CHO responds it risks reviving a public and media carnival that has quieted since 2013-14 (except among limited interest groups on both sides).Delete
The family, and its "experts," have failed to prove that Jahi isn't dead. The family's recovery in suit is thus limited to a $250k, minus attorney fees that would be low enough to quash the atty's enthusiasm for suing.
Settlement would work best for both.
The problem is, as I see it (I'm not an attorney, hope some others in the group can correct me if this isn't correct) is that the petition itself, as it stands, isn't anything that can be "settled" without additional discovery. So, if the idea was to just throw it out there and hope CHO would come forward with an offer, I don't see that happening.Delete
Thanks Doc for your analysis and to this anon in particular: hereReplyDelete
for his/her legal view.
There is nearly always a reason for sloppy legal work - the lawyer either isn't being paid for the time to do it properly or (s)he thinks it will never be used.
Given that this complaint was never served, I think the sloppy nature indicates that they never intended it to be served; It was just a bargaining tool looking for a settlement. Doesn't seem like they got it so I wonder what their next move will be.
Do we know who is paying to maintain Jahi's body?
Plaintiffs' lawyer usually work on contingency, they don't collect a fee until the case is settled or judgment is entered. But most of them know how to write a complaint. And I've seen a lot of sloppy writing from lawyers who were being paid per hour. But you're right, I don't think this attorney expects a big payoff.Delete
The attorney's trial payoff would be a mere $35k, due to Calif's $250k cap on noneconomic med-mal damages and its related fee scale. He'd make more only if Jahi were alive or if he negotiated a decent settlement.Delete
You're right, Anon 21:32..We don't know who or what has been covering Jahi's care or the family's bicoastal housing costs, or even if their former attorney paid their NJ rent arrears. It's all murk.Delete
They shouldn't get a dime. In fact, they should be held liable for desecration of a corpse. Their GoFundMe account is a complete fraud, as Mama Nails uses the money to buy designer purses and shoes, fine wines and lobster dinners. They are liars and cheats and are keeping up the illusion of Jahi being alive so that they can get more money.Delete
Two points: It's not corpse desecration, which has very specific legal elements. And the bevs in those few dinner pics sure weren't "fine wines,"Delete
I know Dolan got roped into paying at least part of their rent. they have run a multiple different fundraisers on various fundraising sites, I'm sure they are signing up for all the government assistance they can get - and I recall something about Home Depot (where mama nails worked back before all this) having contributed.ReplyDelete
They might still be getting some donations to help pay for the living expenses associated with the apartment, but I don't think they're getting any government assistance that would cover the cost of what's pretty much the equivalent of 24/7/365 ICU care that had been needed to "maintain" the body in the hospital. Though the reason the family originally ended up in NJ was because that state allows a family to reject a brain-death determination as a legal determination of death, Medicaid still requires the involvement of a medical doctor to certify the need for specific procedures and treatments, and sign off on the cost of the personnel, meds, and equipment needed to keep the treatment plan in place. As far as we know, Jahi's remains haven't been under the care of a licensed medical doctor since Dr. Fellus lost his license last June, which was the reason that St. Peter's Hospital was finally able to end their involvement with the case. Had Jahi's family been able to find another doctor to take on the case, my guess is that they would have had the remains moved to another hospital or to a long-term care facility, rather than setting up the DIY arrangement in one bedroom of the apartment in which they were staying.Delete
Could Dr. Byrne be the one signing off for the Medicaid requirements?Delete
It is highly unlikely that they are receiving any form of Federal or State aid.Delete
Since Jahi has an undisputed death certificate, any such aid would be fraudulent.
@ Julie...that is truly an interesting possibility.Delete
Far as I know, Dr. Byrne hasn't lost his license as a medical doctor, though in recent times, he's been more involved in teaching and lecturing than hands-on practice. I don't know what the procedure is in NJ, regarding whether or not they automatically honor licenses valid in other states, or if a separate, state-specific registration is needed.
As the previous commenter stated, Jahi does have death certificate (though we know for a fact that it HAS been disputed...just not successfully!) - but that's in *California.* She obviously wasn't considered legally dead in New Jersey, otherwise St. Peter's Hospital would not have been required to accept the transfer of the remains into their facility. Hospitals aren't required to provide ICU care to a corpse, and Medicaid doesn't pay a hospital for services rendered to a dead person.
Could be that Dr. Byrne was the only medical doctor that the family *could* recruit to keep the "care" continuing, once Dr. Fellus was out of the picture. Because Dr. Byrne doesn't have a local practice in NJ, he wouldn't have admitting privileges at a hospital there, and so might not be considered as an authorized referring physician by a long-term-care facility either. The home care arrangement would be the only option left.
And, we already know that Dr. Byrne believes that (1) there is no such thing as brain death, and (2) Jahi is still "alive." So, it wouldn't be fraudulent or unethical, in the context of *his* beliefs, to do whatever he could to help provide care for someone he still considers to be a living child.
While most sane people would agree that it is unethical to maintain a legally dead person on a ventilator - it is not illegal. If a hospital is dumb enough to admit such a case - they are simply foolish and wasting valuable medical and monetary resources.Delete
It is illegal, however to claim federal or state aid for a dead person.
Actually, the fact that Jahi's body ended up in St. Peter's Hospital in New Jersey wasn't due to the hospital being dumb, foolish, or wasteful. It happened because:Delete
(1) The state of New Jersey has a law which specifically *allows* a patient's family to reject the determination of brain death as conclusive proof of legal death, and so hospitals can't terminate the medical support if the family chooses not to do so. Therefore, Jahi was not considered legally dead in NJ, as she was in California. Since the family didn't have the funds or private insurance to pay for the care, costs would have been covered by Medicaid, as would be the case for any other legally-living person.
(2) As a legally-alive person in the state of NJ, Jahi was under the care of Dr. Jonathan Fellus, who was affiliated with the International Brain Research Foundation, but was also actually a licensed MD, who had admitting privileges at St. Peter's.
So, for the first six months or so of 2014, there was technically nothing either illegal or fraudulent about St. Peter's providing medical services, or being reimbursed by Medicaid for doing so. Personally, I agree with you, about it being futile care and a waste of resources. But it was in conformance with the laws of that state.
As I mentioned in the previous post, this whole arrangement fell apart when Dr. Fellus lost his medical license in NJ. So, though Jahi still had the legal status of being a living person in that state, St. Peter's couldn't continue to provide services without having one of the licensed medical doctors on their staff directing the treatment and signing off on the Medicaid certifications. Jahi was still legally *eligible* for Medicaid, but was without a doctor to order and certify the necessary services, so couldn't stay at St. Peter's. Had another doctor been found in NJ who was willing to take over the case, the family would have been able to keep Jahi's body in a hospital or long-term-care facility.
The fact that Jahi's body, and family members tending to it, remain in NJ is what caused us to wonder about who's been signing off on the medical support since last summer.
Interesting. They got $63k in a gofundme campaign but then $175K from only 3 donations to a giveforward campaign : here. That goes direct to the International Brain Research Foundation, which is supposedly caring for her.ReplyDelete
All smells fishy to me. Why would a donation in excess of $58,000 possibly want to go through a crowd-funding site? I dare say if you called IBRF they would take your money direct when you are talking about that kind of sum! Something odd must be going on there.
That giveforward total is $175. Not a rousing success.Delete
Sorry - you're quite right!Delete
I saw all the zeros in what they were hoping to raise and somehow thought they had got $175K of that!
Ditch the conspiracy theories then - but the question of who is paying for the body to stay on the machines remains!
I understand the Terry Schiavo denialist foundation is also funnelling large sums their way.Delete
How do we know that the Schiavo foundation is doing that?Delete
There was a news report to suggest so last summer, it would seem: ABC newsDelete
No idea of the accuracy.
The Schiavo network was given credit for helping transport Jahi to NJ and it gave the family an award. Beyond that we don't know what it has done.Delete
If you read the Schiavo Foundation's Form 990 (available at their website as the law requires) you see that they are not wealthy. Bobby Schiavo is getting paid about $60,000 a year, which is a lot for not doing much, and they don't have a lot more money than that. They may have given some money to the McMath family but they cannot be the main support.Delete
We're talking about nursing care 24/7 for over a year. Where the money is coming from is one of the big questions in this situation.
I wish I could get paid 60,000 a year for running a foundation based on denial.Delete
Note that the IBRF's Give Forward page was set up last November...which was just *after* Dolan's big fail to have Jahi declared "legally undead" bombed out...and also after the election, in which the proposition that would have removed the $250K cap on wrongful death settlements was defeated.Delete
Just my speculation here...but it's possible that the IBRF had been picking up the tab for the "supportive medical care" (corpse maintenance) from the time at which Jahi's remains had to be removed from St. Peter's Hospital until the fall, when Dolan's motion and the ballot proposition both failed. I'm guessing that the transfer from St. Peter's to that private residence happened maybe in late June or early July. When Dr. Fellus lost his license, he was ordered to transfer his patients into the care of other doctors within 30 days of the revocation, and it's not likely there was any other medical doctor who would agree to take on the "care" of Jahi's remains. Dr. Fellus was actually the only *medical doctor* on the IBRF team, and since he'd had admitting privileges at St. Peters, that's how the family ended up there. But once he lost his license, and there was no other medical doctor on staff to pick up the case, the family couldn't keep Jahi's remains there. And, Medicaid won't even pay for "in-home" nursing care unless there is a medical doctor somewhere in the process to submit the periodic required certification statements, write prescriptions for needed meds and equipment, and such.
My personal opinion is that the IBRF decided to pick up the costs for a while, as a research and development project or experiment, in the hope that Dolan's move might work. If his petition to have "Jahi declared alive" had succeeded, Medicaid would have kicked in again. And, it also have laid the groundwork for a shot at another potential big-bucks legal award for compensation for all the other "special care" that they would be providing, with their experimental treatments, to try to improve the quality of life for a severely disabled child.
But that didn't happen. So, they figured they'd take a shot at raising some bucks from "the Keep Jahi On Life Support" crowd. When that didn't work, they finally closed down the fundraising drive in February 2015.
I honestly haven't found any clues as to whether or not the IBRF is still footing the bill, or even whether or not there is still any "care" being provided to Jahi's remains, since we haven't seen any recent credible updates.
as I said earlier, she may be in a freezer somewhere.Delete
Agreed. Seeing a pic of two joined hands as the only photographic evidence of Paul Byrne's "visit with Jahi at her home" is hardly evidence of a miraculous recovery.Delete
Only recent "news" I've seen was a FB comment posted to the "Keep Jahi McMath On Life Support" page. According to Grandma, Jahi's interest in music continues...
Jahi. Will rise i thank god for all jahi improvements she. Has improved alot and bounces her leg to hip hop music
Like · Reply · 2 · June 4 at 9:26pm
G-suc has already demonstrated her willingness to change her story.Delete
It was 175 dollars, not 175k!!Delete
Just an FYI DocB, JB is back on the other post.ReplyDelete
I noticed. I welcome comments, but John (since I'm sure you're reading this too), be careful about what you post. If you start trolling again, you'll be permanently banned.Delete
This is one of the few sites he hasn't been permanently banned. I will be surprised if he lasts till the end of the week.Delete
I am also an attorney (sorry), although admittedly I don't practice med mal, I do have to deal with medical issues from time to time in my practice and if I ever cited WebMD in any of my pleadings, I'd be laughed at by opposing counsel and the judge. And the clerk. And the bailiff.ReplyDelete
Thank you for this analysis.ReplyDelete
I posted almost all the documents from the two 2013 lawsuits here. http://thaddeuspope.com/futilitycases.html
I will be moving these to my "brain death" page shortly.
Mr Pope, I have been following this (and some others) story on your site for quite awhile. It is an honor to finally "speak" to you. It appears that Dr. Rosen filed something called a demurrer, and other than what we can learn on google, none of us non-legal people really understands what that means. Can you explain it to us?Delete
Also, we have all questioned the fact that the suit was filed but not served and the plaintiffs missed the 60 day deadline to serve. Will that make this all go away?
Final question-are we correct in assuming that if the family does not waive their rights under HIPAA, the case will not proceed?
the simple explanation of a demurrer is that it is the defendant replyying that they disagree with the suit. it may mean they plan to go to court, or it may be the opening of negotiations. as I recall, the next hearing will be on the 30th.Delete
It challenges the legal sufficiency of claims made in the complaint.Delete
A demurrer is not general disagreement with the suit.Delete
It doesn't challenge the factual allegations of the complaint but says that the complaint is legally defective on its face in some way - court lacks jurisdiction, plaintiff not competent to sue, cmplnt doesn't state facts sufficient for a cause of action, etc.
Are we SURE that the named defendants in the complaint have never been served?Delete
I don't understand the point of Dr. Rosen's filing a demurrer if he'd never actually been served with the complaint, and the whole action had legally "expired" anyway.
No evidence of filing as stipulated by the court was posted on the court website. So either they were not served, or they were served and the judge has sealed the files to the public. Those are the only two explanations I can think of. Dr Rosen and CHO would have knowledge without formally being served, because the family blasted the complaint in the media. if the request for the demurrer is made public, maybe we will have an answer. Perhaps the legal eagles could shed some light?Delete
On the court website the summons was issued and filed on March 6th. If you read the half page preview you can see that it's clearly addressed to the defendants and even includes words to the effect: You've been served.Delete
The summons is notice to the defendants that they are being sued, but the summons has to be served on the defendants. Per the case management document on the court website, proof of service was to be done within 60 days. There are not any proof of service forms posted on the court website.Delete
the demurrer is now available for viewing. in summary, the demurrer calls for the case to be thrown out, because suing for pain and suffering for a dead person is not a thing, the suit's emotional distress is based on the premise that mama knows better than ICU nurses and makes assumptions that may be invalid, and they are claiming Marvin has paternal rights, that as a stepfather he does not have.Delete
Professor Pope...so nice to see that you're visiting here! Thanks for continuing to give us your ethical and legal perspectives on this case, on your site, over the past year also.ReplyDelete
Mr. Pope, I've also enjoyed your commentary as well. Thank youReplyDelete
I wonder if they lawyer shopped because Torrance is +/- 390 miles from Oakland. That was really shoddy writing in that lawsuit. I've lived here for over 40 years and I have never heard of that law practice. I know the building, but I don't think they advertise on the outside.ReplyDelete
I feel badly for what is happening with the child, I wish they'd turn off the power and let her go.
Bruce Brusavich is, according to this report, "a friend of another family attorney, Christopher Dolan." So that's how Jahi's family connected with him.ReplyDelete
Anyway, people usually do "lawyer shop" to find someone they think will best represent their interests. It's like like seeking any other kind of service.ReplyDelete
Doctor shopping is technically when you game the system by seeing two or three doctors at once so you can get multiple prescriptions for the same drug so you can keep up your habit. Seeing what other doctors have to offer and going with the one that best suits your needs isn't doctor shopping, and we shouldn't be trying to encourage people to go settle with the first doctor they find (unless they work well for them).Delete
I realize that but the poster referred to "lawyer shop[ping]," as if that were a pejorative.Delete
It was used as a pejorative. shopping for a lawyer would imply seeking out the lawyer who you felt could best represent your interests. Lawyer Shopping, like doctor shopping, implies seeking a lawyer or doctor would would cater to your goals either in violation or in ignorance of the rules.Delete
Everyone seeks a lawyer who will "cater" to his or her goals and represent the client zealously. Period.Delete
there is representing the client and there is attempting to help the client commit fraud.Delete
Ken, let's stick to the specific topic here -- medical and legal developments in the McMath case.Delete
If you have evidence that any attorney is committing fraud, contact the relevant state bar.
Looks pretty much on topic to me...Delete
The family obtained their new attorney via referral, not "shopping "Delete
referral by another attorney who got caught trying to fast talk his way around the law.Delete
but yeah, I can see how calling the ethics of the attorney into question is off the topic of "legal developments in the case"
"Lawyer Shopping, like doctor shopping, implies seeking a lawyer or doctor would would cater to your goals either in violation or in ignorance of the rules."Delete
If a doctor is ignoring the rules, that's on the doctor 100%. They spent the 8+ years in medical school to know the rules and what's feasible for their patients. If they're stupid enough to throw that out the window, they deserve to lose their license.
As for finding doctors that fit your needs, yes you SHOULD be doing it! Why the hell would you be stupid enough to settle with a doctor that is NOT helping you out the way you need them to? Sometimes you need to find the doctor that will do a procedure on you that you know you'll need. Otherwise, you end up like the guy that had to wait 5 years to get his prostate taken care of because his primary wasn't taking him seriously.
Because google trained doctors are the best judges of what medical procedures or meds are necessary? Are you serious?Delete
Anon 23:35... if you're replying to Anon 18:57 - where did he-she recommend a google-trained doctor?Delete
You missed the point. Completely.Delete
are you being this dense on purpose?Delete
It's not being dense. If Jahi's family thought their child needed a certain line of treatment, they were well within their right to find a doctor that would at least humor them. That's where their responsibility for the surgery ends. If you do think they were looking for a doctor to do surgery she shouldn't have gotten, the doctor is definitely in the wrong.Delete
If a doctor does not think a patient should receive a certain line of treatment, they need to say so. They're the ones with the medical experience, so the responsibility for their patient's care ultimately falls to them.
If a friend kept asking everyone to something questionable and I finally accepted. He would not be "accomplice shopping", I would be acting unethically, and "he told me to" would not be an excuse for it.
If their lawyer is being unethical to get a paycheck, that is on him for making a deal with the devil. If he is not following guidelines he needs to have his bar revoked. I could tell a lawyer all day long to lie, but if he did it, he'd ultimately be the one responsible for obstructing justice.
People don't just become mind slaves the second you throw money at them. They are responsible for their actions, and when in a position of authority that their client is not, even more so.
and if you keep looking around until you find a lawyer who won't refuse to be unethical, (or who doesn't realize what you are asking him to do is unethical) that is called "lawyer shopping"Delete
just like if you keep going to doctors until you find one who will prescribe you Oxy, it is called "doctor shopping"
What does this side argument about shopping have to do with this case?Delete
They hired one attorney to keep Jahi artificially vented. He referred them to another for med mal.
Someone commented that CHO is associated with Stanford University. It is actually affiliated with UCSF and UCSF Children's Hospital San Francisco and is now called UCSF Benioff Children's Hospital Oakland.ReplyDelete
Rosen's demurrer introduction:Delete
On line 26 -27, Rosen claims that he was unaware of jahi's post-operative bleeding.
"Dr Rosen was unaware of Jahi's post-operative bleeding."
Rosen is being represented by his own med mal insurance company and his insurance is not affiliated with Childrens Hospital. He claims no one from CHO contacted him with regards to jahi's deteriorating condition and blood loss. By doing so Rosen already admitted that he wasn't there and Jahi bled unnecessarily which resulted in her cardiac arrest. Rosen claims he was not negligent because no one informed him and he was unaware of jahi's post-operative bleed.
To save his own practice, Rosen will put the entire blame on the nurse because he was "unaware" of Jahi's post-operative bleeding.
And that's how the cookie crumbles with Rosen throwing CHO under the bus.
You already made this comment on my other post, and I already deleted it. But thanks for proving that you're trying to skirt the rules by posting anonymously. Shame on you John for thinking you can outsmart me.Delete
But I'll leave this one up to make a point. Rosen is allowed to defend himself however possible. I've seen doctors make absolutely ludicrous claims to defend a malpractice claim, but those typically fail because they are so ridiculous. This defense may be right up there with the craziest ones, but if there is no proof that anyone tried to contact Rosen, then there will be no evidence that he knew she was bleeding.
I'm sure the family's lawyer would go through his phone records, etc to try to prove that he was called. But if there is no proof, then they can't prove he knew. And if indeed Rosen WASN'T called, then the nurse absolutely IS to blame.
Poor John. Let's see you try to squirm your way out of this one.
Doc B - Is the typical response to a night-time emergency in the ICU to call no one *but* the patient's surgeon? If nurses believe a patient is in a state of true medical emergency, don't they first attempt to contact *any* doctor who might be on the premises and on duty at that time?Delete
When my dad went into unexpected cardiac arrest the night before his planned discharge the next morning, I got a call from another doc who'd responded to the code, who introduced herself and explained the situation. Staff didn't wait to get hold of Dad's primary care doc, then wait for him to wake up and get to the hospital, before dealing with the situation (getting heartbeat normalized, supplying oxygen, etc.) to stabilize Dad. Primary care doc and cardiologist were on hand first thing in the morning to follow up, but the immediate emergency had been handled promptly. .
Point being...even if Dr. Rosen wasn't called, I don't believe that conclusively proves that NO doctor was called. As you've often reminded us, we won't really know exactly what happened until and unless the chart notes are shared.
Dr. Rosen's statement in the demurrer just says that HE wasn't made aware of the situation while the bleeding was in progress. IMHO, that's not necessarily "throwing the CHO staff under the bus," since he doesn't suggest that anyone else who *was* present that night was negligent. He's just stating his own position...he doesn't believe he should be considered negligent for not responding, since he wasn't notified.
Scarab - You were probably called by a doctor on the Code Blue team. In Jahi's case, that team wouldn't have been notified until she coded. However, I flatly refuse to believe that the PICU nurses called no one while a 13-year old bled to death (if that is indeed what precipitated her code). I have to believe that at the very least the paediatric intensive care doc was called even if Rosen wasn't.Delete
Doc, that's what I was thinking too. There had to be *someone* (medical doctor) on duty to respond to emergencies.Delete
Actually, item #22 in the complaint states that the notes made by the nurses document the fact that they "repeatedly" called the PICU doctors for assistance as they observed Jahi's deteriorating condition and blood loss, got no response, then were finally advised that "there *would* be no response from ENT or Surgery."
Of course, we haven't seen *all* the notes, so it's fair to assume that there may have been some selective reporting here. It's the attorney's job to structure the complaint to support the client's allegations. So we don't know for sure if a doctor might have responded *after* this particular note was entered.
But then, item #33 accuses the nursing staff of being negligent, by not going through whatever chain of command was necessary to challenge the fact that they couldn't get a doctor to respond, after having supposedly advised several PICU doctors of the situation.
It's always been my understanding that nurses are skilled professionals who work as support staff to doctors, and take direction from them. So, if nurses indeed called *several* doctors, to report what they believed might be an indication of a serious decline in a patient's condition, and were told each time that it wasn't an emergency requiring a response, how were they supposed to demand one, and *force* a doctor to appear?
The Nurse Practice Act allows nurses to challenge the physician's lack of action in an emergency. If they feel that MD is wrong or if the MD is not responding, they have the duty and the responsibility to activate the hospital's Rapid Response Team.Delete
"At UCSF Benioff Children's Hospital Oakland, a highly specialized multidisciplinary team of critical care physicians, nurses, respiratory therapists and pharmacists is available around the clock to respond to cardiopulmonary arrests or impending cardiopulonary arrest. Should a patient show signs of deterioration, the team is ready. To make our patients as safe as possible, we review every team response to ensure systems are working."
Rosen's statement also did not directly implicate CHO or the nurse but the writing is on the wall. He would have to explain why he was "unaware" and Rosen will more than likely incriminate this nurse at the appropriate time.
One problem with the family's narrative is that it hasn't remained consistent. Currently, for the purposes of this lawsuit, they're claiming no doctor responded to care for Jahi while she was bleeding, but that wasn't always what they claimed. Sandra Chatman, Jahi's grandmother, was interviewed on HLN's Jane Velez Mitchell show in December of 2013, where she stated the following:Delete
JVM: ...Jahi asked for a popsicle, she was okay, and then all of a sudden blood...
Grandma says SHE asked them if they found the bleeding amount to be normal, and they said they didn't know, so she said to go get a doctor. She goes on to say, "And then I even asked the doctor, "What are you going to do about this? They started some drip that even the nurses hadn't, you know, knew about, and sprayed some sort of Afrin in her nose. And she was profusely bleeding from the nose, and Jahi and I were both trying to suction out of her...Jahi was spitting the blood out. And I kept monitoring all the monitors, and especially the O2 saturation, and the O2 saturation should be, from my experiences being a nurse, 96-100%. It was dropping down 90, 88, and it dropped down to 79, and I said, "Everybody get in here now." And then the doctors came, and I really trusted that they were going to do all they could for her."
She says she "felt that the doctors were relaxed." (Note added: this doesn't say that the MDs were not present, just that she felt their attitude was wrong. The latest version claims the MDs wouldn't even come prior to the code and only arrived in time to say, "Oh, shit! Her heart stopped")
Clearly, the story line has evolved over time, from the doctors being present and taking actions, just not the actions Sandra thought they should be taking, to them now not even being there at all.
Grandma's vague and ambiguous interview cannot be interpreted as facts in this case. It's unclear. We don't know if grandma's conversation occurred facie ad faciem with the MD or via phone conversation.
One thing is for sure. Rosen confirmed he wasn't there and unaware of Jahi's post-operative bleeding.
nothing you say can be interpreted for fact...Delete
Right on Doc!ReplyDelete
Hmm. . . it looks like you need to take out the trash. . .I mean troll again. I am sorry we can't help clean up the mess since you are not making it.ReplyDelete
Mess? I just posted the hospital's policy and procedure. What's wrong with that?Delete
This comment has been removed by a blog administrator.Delete
CHO filed their demurrer. No preview yet:ReplyDelete
6/25/2015 Motion for Joinder Filed for Defendant
6/25/2015 Demurrer and Motion to Strike Complaint Hearing Confirmed for 07/30/2015 02:00 PM D- 20
6/25/2015 Motion for Joinder Hearing Confirmed for 07/30/2015 02:00 PM D- 20
6/25/2015 Demurrer and Motion to Strike Complaint Filed by UCSF Benioff Children's Hospital Oakland
Can someone please explain the meaning of Motion for Joinder? From what I gathered on some CA attorney's website it has to do with adding people to the suit. What's the significance when it's filed for the defendant?
IANAL, but my understanding is that a motion for Joinder allows the court to hear a matter involving different plaintiffs or different defendants at the same time in the same court hearing if the separate defendants (in this case CHO and Dr. Rosen) are both filing responses that involve common questions of law.Delete
Professor Pope has included Rosen's entire 76 page demurrer as a link in his post from June 23:Delete
California Code of Civil Procedure section 436 provides that a motion to strike may be made to strike out any "irrelevant, false, or improper matter inserted in any pleading."Delete
Translation: Childrens Hospital's desperate attempt to save face.
John, the demurrer wasn't by CHO nor on behalf of CHO. Did you even understand a single thing you read, or haven't you even bothered to read it?Delete
At least two of the issues raised in it are almost certain to be upheld by the judge (with rulings in favor of Dr. Rosen), and the third the judge may allow Winkfield's attorney to amend (or he may just summarily dismiss without allowing her an opportunity to fix the clear problem).
Your gloating is unseemly and truly strange.
I was responding to this item below:Delete
6/25/2015 Demurrer and Motion to Strike Complaint Filed by UCSF Benioff Children's Hospital Oakland.
So, you were making assertions about the merits of arguments in a document you haven't even read and claims about how the judge would rule on those arguments? Even dumber.Delete
Are you saying that this judge will completely dismiss their lawsuit? Will the judge allow them to escape liability? I don't think so. What do you think?Delete
I think your opinion is uninformed because you haven't seen the medical records pertinent to this case, haven't access to nor have you interviewed witnesses on both sides, and are basically speculating and talking out your ass in making any assessments about who might be liable for what, if anything. Unlike you, I'm not fool enough to offer an opinion about liability without seeing the necessary documentation.Delete
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Dismissal of a complaint doesn't necessarily mean that the court finds the defendant "not liable" in a civil case, or "not guilty" in a criminal case. It can happen because the complaint itself is legally deficient, as we saw cited in Dr. Rosen's demurrer. This just means that the plaintiffs and their legal counsel have to figure out if they can restructure their complaint in a way that *does* present information that the court can actually consider, and then to file again if they *can* accomplish this.Delete
The court can't rule on ANYTHING until and unless both sides present their respective information in an organized, factual manner that legally makes sense.
John what is it that you don't understand about the court system? Each side makes their case and then AFTER hearing ALL testimony and examining ALL the evidence a judgement is made. It seems as if you have a vendetta against CHO and the healthcare providers as you continually take every opportunity to attack them. If negligence is found and a judgement is made how is that going to heal the family? No amount of money is going to erase the pain of losing Jahi and mama will have to live with that the rest of her life.ReplyDelete
That's your interpretation. I simply presented valid arguments, and if all the premises are true, then the conclusion cannot be false. Agreed?Delete
A conclusion can most certainly be false even when all premises used in the argument are individually true. Such an argument is called invalid. So, no, presenting (allegedly) true premises doesn't in any way guarantee you've presented a valid argument. In this case, you haven't proved your premises are true, so you've demonstrated neither validity nor soundness. Really, John, the concepts of soundness and validity are Logic 101.Delete
I was replying to your comment about CHO trying to save face and your "Overruled". You didn't provide any argument. I'm beginning to think mama offered you a cut of her hoped for settlement to attack CHO and Dr Rosen.ReplyDelete
I know you're not an ENT surgeon but I kinda disagree with the comment you made below:
"However, Dr. Rosen was under no obligation to mention his suspicion to anyone."
We already know that any major vessel injury can be fatal especially when noticing a "suspicion of medialized carotid on right" after multi-level tonsillectomy surgery.
Why do you believe that Rosen is not obligated to mention this vital piece of information to anyone especially nurses?
You can "kinda disagree" all you like. You are neither a doctor nor a surgeon, so you have no idea what is or is not obligated to mention so have no leg on which to stand with your kinda disagreement.Delete
He may have seen a medialised carotid, but he wasn't sure. Even if he was absolutely positive she had one, it wouldn't have made a difference. If there was no bleeding when he was done, there isn't a damned thing differently that he would have or could have done. If there is bleeding after this sort of surgery, it is plainly visible, and something needs to be done. It really is that simple. No bleeding = no problem. Bleeding = problem. Once she started bleeding, it should have been stopped somehow. It wasn't, and we all know the outcome.
he never has a leg to stand on. all he does is cut and paste stuff with big words and make up delusions based on them. he makes up his own narrative and tries to skew things people say to fit his narrative. you have been unbelievably patient with him, but there's no chance he will ever produce anything of merit. isn't it time he went away. again?Delete
Oh, look. A troll trolling. How novel.Delete
Doc B., thanks for the clarification. I couldn't really figure out why this whole issue of the medialized carotid artery was even mentioned in the complaint.Delete
I'm NOT a doctor, but understand enough about how the human body is designed to know that the carotid artery is a major one. If the artery is in a different location than typically expected, I can see why a surgeon might face a challenge working around it, depending on the particular procedure. But if the artery is accidentally injured during the surgery, it will bleed THEN, not many hours later. Jahi would not have left the operating room without this being handled, if indeed it had happened. But the fact is, the surgery was completed successfully, Jahi was taken to the recovery room, and had (according to the family ) been awake and visibly OK for hours before the bleeding started suggests that the condition of the carotid artery was a non-issue.
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Quit trolling. DocB, like everyone else is WAY smarter than you.Delete
It was deleted because it's off topic and obvious troll bait.Delete
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John, you've now posted the same comment here 3 times, and I've deleted it 3 times. You're banned. If you're unclear on the meaning of that, you've demonstrated repeatedly how proficient you are at googling, so Google it.Delete
he doesn't comprehend what he's googled.Delete
Thanks once again to Professor Pope for staying on the case...literally :)ReplyDelete
The demurrer filed by CHO is now posted on his site. Read here:
My comments now....wanted the link post to be separate so everyone else could read along too.ReplyDelete
Several objections are the same as in Dr. Rosen's filing...Jahi has been declared legally dead, so the claim for personal injury is invalid, survivor claims can't be made until or unless Jahi's mother goes on record as Jahi's personal representative, and Marvin Winkfield has no standing as an heir, being a step-parent. So, that motion for joinder that we wondered about the other day makes sense now, with both defendants (CHO and Dr. Rosen) raising the same issues in their respective demurrers. It makes sense for the court to consolidate these to the extent possible, and also for the plaintiff's attorney, since he will need to respond to these common issues in order to amend the complaint.
This one goes on to focus mainly on the proof that Jahi is indeed deceased, and includes details on the process for the determination of brain death. Background information includes the previous court rulings by Judge Grillo on the original case, and also Dolan's filing last fall, which was the attempt to reverse the determination of brain death, and explanations of why this was not possible.
This demurrer does not directly address any of the plaintiff's allegations of neglect; it just states that there is not sufficient information to justify the complaint as written.
My general impression (not a legal analysis, since I'm not an attorney) is that the main purpose of the CHO demurrer is to address the obvious ambiguity of the complaint (can't be both a personal injury and wrongful death claim, since Jahi can't be both alive and dead), by presenting evidence that the declaration of death was appropriate, so cannot be re-litigated in court.
Good logical point, but also, IMHO, a *very* interesting strategy move...
Should the court concur with this position...and I don't see any reason to expect otherwise, since Jahi IS considered legally dead in the state of California...the family would, of course, still have the option of re-filing the complaint as a wrongful death suit.
But will they? Can they?
To make a claim for wrongful death, the family would have to acknowledge that Jahi is no longer alive. For Jahi's mother to have legal standing in bringing suit, and potentially receive the settlement $, she would have to acknowledge being Jahi's survivor and heir.
This could get complicated, if the family tries to collect money in CA as damages for a wrongful death of a child, while that child's body may still be not just "above ground," but perhaps receiving medical services, possibly state-subsidized in whole or in part, in NJ.
The family also raised negligent infliction of emotional distress as a cause of action. Although CHO challenged this, it, like wrongful death, might proceed in an amended complaint.Delete
CHO addressed the demurrer as pertaining to the first and third causes of action regarding Jahi's status as legally dead and Marvin Winkfield not being a legitimate heir. Only Dr. Rosen's demurrer addressed the NIED charges. Apparently CHO did not challenge this aspect of the complaint nor could they. Unlike Rosen, who maintained that he was unaware of Jahi's bleeding, CHO can make no such claim.Delete
Scarab, you make an interesting point. I hadn't thought of the strategic aspect even if it's just the logical byproduct of CHO's demurrer. They really had no choice but to object to the ambiguous language regarding Jahi's legal status and have every right to cite res judicata since it was already litigated. It will be interesting to see how plaintiffs proceed. I had only thought of a case in which Nailah would have to subject her daughter to more brain death evaluations. Should it be established once and for all that Jahi is indeed deceased the only way forward is suing for wrongful death. Could they drop that pleading altogether and just sue for personal injury after amending the language to establish Nailah as successor? If they were to go ahead and sue for wrongful death what happens in NJ?
I am yet another "Anonymous" post. Sorry. I've been following this case with interest for so long.Delete
IF Jahi's mom goes the path of declaring her dead, then poor Jahi's body is the evidence for wrongful death. I'm not a lawyer, but it sure seems like it would be an easy case to prove that it would be impossible to prove who was at fault given the issue of chain of custody of said evidence (the body)? In other words, the coroner issued a death certificate pending autopsy. Autopsy is intended to collect evidence for manner of death. Yet, 1.5 years later, how could an autopsy possibly prove fault given the multitude of people who have touched this body in so many different arenas and now, sadly and finally, in an apartment in NJ?
Thus, could Mom only get $250K for this to go away? At best? I think she may have cornered herself. Poor Jahi...she deserved so much more...as do the other living children.
That was my point...she DID corner herself, as I see it. The med mal suit had to be filed in California, since that's the location of the hospital at which Jahi had her surgery. But...Jahi is legally dead in the state of California, and that determination was made through careful application of the testing and observations that conform with the Uniform Declaration of Death Act, as well-documented in CHO's demurrer. So, there's no legal basis for a personal injury claim made on behalf of a person who's already been legally declared dead.Delete
According to the author of this article:ReplyDelete
Bruce Brusevich said in an interview that although he has never filed a conditional wrongful death suit before he contends that case law allows for "alternative facts or theories". It will be interesting if he is successful in overcoming res judicata and the court allows for the re-litigation of this matter.
I think it's highly doubtful that Judge Freedman will allow this. I believe he will rule that Nailah has one option and that is to sue for wrongful death if she hopes to recover any money at all. Whether she decides to accept that Jahi is dead is up to her. The "alternative facts or theories" thing is not going to fly. There's been nothing offered by Dolan's "experts" and it's doubtful Brusavitch has anyone to refute the diagnosis of brain death that has been in place for a year and a half.Delete
Sure, I can understand situations in which the "pleading of alternative facts or theories" might be understandable. If plaintiffs observed *several* occurrences which caused them concern, they might not be sure whether the primary cause of the patient's ultimate decline or demise was Action A, Action B, or Action C. The initial petition might mention all three observations, and then things would get figured out through the process of discovery, which would include getting actual medical records, maybe additional testimony from other witnesses, and such, as the case moved forward.Delete
But I don't think that the "alternative theories" principle would apply to a petition in which the plaintiffs are claiming that the patient ended up severely disabled, but also claiming that she ended up dead.
IMHO, it's pretty telling that Dolan himself basically dropped the petition to "have Jahi declared alive" when it became clear that the "expert testimony" he presented, which was mostly from the IBRF affiliates who hadn't even personally examined Jahi, and were neuroscientists but not actual medical doctors anyway, was easily negated by Dr. Fisher.
HA! Fisher's diagnosis and brain death examination was based on an unproven hypothesis.Delete
His diagnosis will be challenged in court, and I've prepared some interesting points regarding content of consciousness and profound coma in "brain dead" patients. I'll send those to Nailah.
Ah, another brain death denier like my dear friend Dr. Byrne.Delete
I think it's Benton again. He gives himself away by claiming he's sending things to Nailah. He's been posting on the Keeper site the same thing he posted here 3 or 4 times regarding the lacerated medialized carotid artery and pseudoaneurysm telling them to pass it along to Nailah's attorney.Delete
The content of John's consciousness is courtesy of Google.
The "HA!" and claim of sending info to the family make it clear that it is Benton skirting the rules again.Delete
Yes, it's JB.Delete
I have a question. When someone is declared "brain dead" for the purpose of organ harvestment, are the organs dead too? Can we technically say that those organs are "dead" because they came from a "legally" dead person?Delete
John, you're not fooling anyone. It'd be nice if DocB could IP ban you.Delete
Content of consciousness in brain dead patients? WTF???Delete
The first (but not only) criterion for declaring someone brain dead is that they be in an irreversible coma. A coma patient, by definition, is unconscious. Unconscious = not conscious. There is no "content of consciousness" in that situation. That's quite literally babble ("v. to utter a meaningless confusion of words or sounds").
@Anonymous 1 July 2015 at 22:29Delete
Life/living is a property of an organism, not a property of individual tissues or organs. Organs and tissues either function or do not.
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And, as usual, he's not really following the story too well either, or even reading/comprehending the posts to which he replies. The diagnosis and determination of brain death HAS already been challenged in court, and the "evidence" presented by the plaintiffs didn't prove their case. The court has no reason to entertain a motion to re-litigate that matter, no matter what interesting Google findings are shared with Jahi's family and.their legal counsel.Delete
Scarab: If I remember correctly, you agreed with doc about the medialized carotid artery as being a non-issue in this case. That was really smart.Delete
Fisher used accepted medical criteria for determining brain death. What you as a google trained fail troll think is completely meaningless. There's a reason quacks like Dr Byrne are laughed at by the mainstream medical community(and any other smart people).Delete
According to everyone but you, it was. Even Dolan agreed.Delete
If this is a repeat, I apologize. I tried posting earlier but it doesn't appear to have gone through.ReplyDelete
I think it's sad that Jahi's father is named as a nominal defendant. He may have come to realize what brain dead really means and is tired of his ex-wife refusing to remove her from the machines and bury her. Maybe he has retained some legal rights and has tried to exercise them.
The whole situation is sad.
You could be right....since we haven't seen him involved in the case as a "family member" except for very early on. When Jahi's mother was still battling CHO to try to force them to continue "treatment" for Jahi, I remember we saw a picture of him standing with the others at a press conference, but he didn't speak. Nothing since then.Delete
But from the legal perspective, a nominal party is just:
"a defendant or a plaintiff included in a lawsuit because of a technical connection with the matter in dispute, and necessary for the court to decide all issues and make a proper judgment, but with no responsibility, no fault and no right to recovery." (legal dictionary definition).
Milton McMath's "technical connection" would be the fact that he's Jahi's biological father, so he will be kept informed about the case, by being served with the various documents as the case moves forward. As you stated, we don't really know if he has chosen to try to exercise some parental rights. But keeping him informed about the case will allow him to do so if he wishes, will require him to comply with whatever ruling that the court eventually issues, and will prevent the possibility of his taking some future action to challenge the ruling after the case is settled, if he chooses not to get involved while it's in process.
The fact that he's identified in the case as a nominal *defendant* instead of a nominal "plaintiff" suggests that he has *not* been in agreement with the actions taken by Nailah, Marvin, and Sandra, and that they aren't planning to let him share in the proceeds of any potential financial settlement.
If Milton is nonconsenting then that makes him a nominal defendant. Plain and simple. No small talk or book needed per California Code of Civil Procedure ("CCP") section 382. He will be a defendant in name only.Delete
Just step over the troll, please.Delete
Anonymous 7/2 6:35 is correct. It's that simple.Delete
Thank you Scarab and Anonymous 7/2 @6:35 - that makes sense.Delete
Which post is the one 7/2 @8:36 referenced?
Anyway, whatever his failings as a spouse and person, I'm glad that Jahi's father is no longer going along with Nailah's wishes and plans.
@ Anonymous 3/7 @4:17 - If Nailah were to win (which I both doubt and hope never happens), couldn't he still sue her for a portion of it and possibly win?Delete
No. California Code of Civil Procedure ("CCP") section 382 will end that for him.Delete
I think Nailah needs to read Robert Silverburg's novella, "Born with the Dead". Then think long and hard about what she's wishing for her daughter.ReplyDelete
Jahi is dead and Nailah has living children who want her attention (even though they deserve better). Plus a grandchild.
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If she doesn't retain enough brain stem to breathe, keep her heart beating, etc. then she's not disabled. She's dead.Delete
There are four living children and one grandchild remaining. If she can't afford rent and ongoing expenses while in New Jersey I wonder who is financially supporting the other minor children.
Re who's supporting the minors ... who knows. They do apparently have a large extended family and some benefactors might be kicking in.Delete
As crazy as I think this family is, I confess that I really don't understand the public fascination with and projections re every non-legally and non-medically related detail of their personal lives.
Any accountants reading this? Who is responsible for paying taxes on the money donated? Nailah? Anybody? What if it's demonstrated that the money donated for medical expenses is used for other items (accessories, tattoos, shoes, food and drink)? Latasha Spears-Winkfield is the person listed, so the 1099-K was sent to her and it's entirely her responsibilityReplyDelete
Gifts are not taxable.Delete
Accountant? You have multi-national corporations shipping jobs to China, and not paying their fair share in taxes, and you want to turn off Jahi's ventilator? You probably pay more in taxes than those guys so no worries.Delete