Sunday, 16 August 2015

Thoughts on brain death

Anyone who has read this blog knows of my ongoing fascination with the Jahi McMath case.  If you aren't up to date with the latest information, scan back in this blog a few months and you'll get more than you ever thought you'd need.  The most recent news includes claims made by the family through their lawyer that Jahi no longer meets criteria for brain death.  Of course no concrete evidence for this has actually been presented, but the claim is out there in official court documents.

I've said many times that if this is true, it would mean that brain death is not permanent and every textbook on neurology and critical care would need rewriting.  It would also mean that Jahi would be the first documented case of recovering from brain death in human history.  

Or would it?  

Is that the only possible explanation for what's going on?  Any logical person who knows anything about central nervous system physiology knows that once those neurons are dead, they are gone for good.  That logical person would say that if there is any sign of life, then Jahi was never actually brain dead and was misdiagnosed 6 times (as unlikely as that may seem).

Or . . .

The logical person may argue that what we think we know about brain death may not actually be true.  

Instead of explaining that position myself, I'll turn the virtual podium over to Dr Cory Franklin, a retired intensive care doctor who was director of critical care at Cook County Hospital in Chicago.  He wrote an article in the San Francisco Chronicle about Jahi McMath, and due to editorial constraints was not able to explain his position adequately.  After his article was posted here, Dr Franklin managed to find my little corner of the Internet and joined in the conversation. 

He emailed me a very detailed explanation about what he thinks is going on, and he has agreed to allow me to publish it here.  I have no doubt it will spark a lively (and civil) conversation, and I suspect Dr Franklin will participate.  He's retired, so what the heck else does he have to do (other than write).

Just kidding, Cory.

So without further ado, here is Dr Franklin's full and unabridged opinion:

Doc: First off, let me say you have a great blog.  I retired from critical care after 30 years and while I teach, I don’t go to the ICU much anymore so I have to learn my critical care other places, and your blog is one of the best there is. Kudos on a job well done. Keep it up.
You’re right – I did diagnose a lot of brain death- I’ll estimate between 100-200 cases. 80% was medical, but about 20% of the time the trauma guys would call me for my opinion. I gpt along quite well with them and learned plenty from them.  I wrote the criteria for two major medical centers back in the day so I’ve been around the block.
With your indulgence, I’m going to give you a long answer. I write now, primarily for the Tribune here in Chicago, but sometimes in papers around the country and there was no way I could address the question adequately to a lay audience (and a medical one also) in the standard 750 words. In fact the SF Chronicle editor had me edit the piece down from 905 to 755 as it was. But that’s the nature of the beast.  I can give you the long version of a nuanced issue. 
The short answer to your question is no. I don’t think the girl has recovered from brain death, not in the classical sense we think of when we talk about recovery from neurologic insult.  But Fate has presented us with a more complex question, which could even be looked at as an opportunity to better understand this area.
Brain death is an artificial, but necessary construct we developed 50 years ago. When we deal with insults to the central nervous system- blunt and penetrating trauma, anoxia, bleeds and other pressure phenomena, and infections (and I believe all of those are related but slightly different insults), the question naturally arises “at what point of insult do we say the person is medically and then legally dead”. We have to ask and answer that question for public policy reasons, transplant issues, so people aren’t on life-support unnecessarily, and for compassion sake – it’s a legitimate question and one that we have a professional responsibility to answer.  (It’s clearly not the simple “she’s never going to wake up” that most Internet and newspaper commenters opine- or perhaps existentially it is, but we’ll let that go for a minute).
Now the way we have decided to answer it, quite reasonably, is cessation of measurable cortical activity, through lack of responsiveness, and cessation of measurable brain stem activity – brainstem reflexes, and apnea (although most people don’t perform a good apnea test- but for the sake of argument I’m going to assume it was done correctly here and not make it an issue).  For the most part, no problem- it’s been accepted as death and it’s as reasonable as anything.
But.
The fiction that has been passed off since the Harvard guys did this in 1968 is that this was irreversible cessation of all brain function.  You can look at their wording. You know and I know that can’t be true, simply because we can’t easily measure all brain function – hell we don’t even know what all brain function is.  And this was done before CTs (I’m old enough to remember the time before CTs) and now MRI’s and PET scans where we can actually measure brain metabolism.  I’m not saying we should get these tests, just pointing out what should be obvious.
So let’s come back to this case. As I said, I believe in all likelihood they followed the criteria and made the “right diagnosis” and that should have been that. I wrote for the Tribune at the time the right thing to have done was to have discontinued support – and I believed that. But for social reasons, which I’m not really concerned with other than their consequences, they didn’t.  And some unusual things have happened.
First she didn’t “die”. Yes I know there are a few long-term somatic survivors – but this alone clearly puts her in a small category  (the funny thing is that meningitis kid at UCLA who has been around so long scared them so much they went and got MRIs on him – that tells you they were out of their comfort zone before they actually saw brain liquefaction). Second of all she starts menstruating, which means in all likelihood there is some hypothalamic  function – not cessation of all brain activity. Third- she moves a bit – I have no idea what that means – but I sure as hell didn’t see anything more than an occasional spinal reflex in the earliest hours of brain death.  Fourth – they say there is some activity in some of the imaging. I’m prepared to say this is wrong if I see it can’t be duplicated in a reliable fashion in a major medical center but all this means she is an outlier- and any time you have a diagnosis with an outlier, it’s a good idea to review your original assumptions. In this case our assumptions about what brain death actually is. 
I bet there is a good chance, if you were to run the same brain death criteria on her today you might get the same results- brain death. But that begs the question. It may be fine to reassert those brain death criteria, but this case has given us an opportunity, which we don’t get every day, to reevaluate what the criteria mean- a very important point.
I would also guess, and it’s only a guess, that this girl is on the “edges” of brain death, straddling the line between life and death as it were. Her injury was anoxic- the outcome of which is notoriously difficult to predict. While I don’t think she has “recovered”, I would not rule out some isolated neuronal watershed recovery – some neurons may actually have recovered. The girl is young – she has a good heart, and for all we know there may also be some plasticity in this situation in her brain, which allows just enough autonomic function to permit her to "survive". I don’t know. Is that death? Depends on how you define it. It might be just as legitimate to simply say “she will never wake up’ –though I don’t believe that would be  a good line to draw to define death.
Normally none of this would matter – let the family do whatever they want and who cares? But this is exactly one of those public policy questions –legally where it’s important to define exactly what we are calling death (if for no other reason tens of millions of dollars in damages – but it would be important anyway). The judge could take a narrow view and say it’s been litigated – the experts did the test and she was dead. I think that would be understandable but a mistake. And I think doctors who understand what’s really at stake here should agree with me. This is a rare opportunity where we get to examine brain death, and brain function, more closely (PET scans, hormone assays etc.) At the end of this we may come away saying – look we don’t want to change the neurologic definition of death- keep doing it the way we always have. But it may turn out we will dispense forever with the fiction this is total cessation of all brain activity. And there is always the possibility we will redefine how we diagnose brain death in the future. That’s why the stakes- from a medical standpoint – are so high. And from a legal and public policy standpoint also. It just happened the chips fell right and that this was the case to ask the questions.
Sorry to be so long-winded. I wanted you to know where I am coming from. I don’t have the answer here. But I have a pretty good idea what the questions should be.   
As I said, keep up the great work on the excellent blog. I’m a big fan. And don't worry about being confrontational. No problem for me.  Intelligent confrontational is good. Stupid confrontational is bad. 
And hey, maybe you might want to buy my new book. It’s enjoyable reading, lots of good war stories- and no I didn’t write that SF piece to sell more books.  But I’m not going to turn down the opportunity if it arises.
That would be brain dead.
Cory           

215 comments:

  1. Fantastic post as always. The idea that Jahi actually is exhibiting all these signs of 'life' is fascinating, in all the posts I've read on the topic in ashamed to say that thought never crossed my mind. It does make me wonder though, is the study of what constitutes brain death and how/if it can recover to any extent really that scarce?

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  2. I think that Dr. Cory is assuming that what Jahi's family says is true. Where is the proof she menstruated? Or moved at all after the initial Lazurus sign that went all over the internet? Where is the proof that she isn't laying in bed doing nothing that any other corpse does-but with a vent making her breathe?

    So while this Dr obviously put loads of thought into this, the entire article was written on the supposition that Jahi's family is telling the truth, and we all know that's not likely to happen!!

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  3. I don't think its so much as she wont wake up, its more so that there is nothing to wake up. That is really closer to what true brain death is, versus just a regular coma. A many year long coma its unlikely for them to wake and its very likely they won't, but with brain death there is nothing left to wake up, to be conscious. But hey I'm no doctor.

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  4. what I get from his essay is that he would like to see in in depth study done on her somatically supported body - and I have absolutely no exception to this. I think it would be a wonderful opportunity for those who have the background to have a fascinating study of the workings of anoxic brain injury. of course, its about a year and a half too late to start the study, so a lot of good information has already gone away.

    I also noted the assumption the onset of menses was a purely biological process, and wasn't either a false period, or induced by hormone therapy. - but in my view he was addressing possibilities rather than suspicions.

    however, I strongly suspect that even if he offered to foot the bill to put her into a research program, the family would not allow it. that would be reasonable and sensible, and I don't see much reason or sense in their behavior.

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    1. I agree with you, Ken. However I fear that the family is going to see this and use it as a smoke screen to scream "see, she isn't dead". I respectfully suggest that Doc should not have posted this until the judge is back with his ruling for that reason.
      And I also think that this article sounds like the author believes what the family is saying. There is no proof that anything they have said is true at all.

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    2. They can say whatever they want. A speculative blog post on the internet by third party isn't admissible in court.

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    3. the family would use it as a smoke screen to say she is not dead if you said the sun rises in the east.

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    4. Agreed. I have no real concerns about any opinions expressed here, or anywhere else on the internet, having any impact on the judge's ruling. The court will rule based on evidence presented by the parties. So far, even the opinion statements that have actually been *submitted* by the plaintiffs haven't been considered as sound evidence, since none of the actual medical doctors who wrote them had personally examined Jahi.

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  5. I agree with the first 2 anonymous comments. 1this was all based on the assumption that the family is telling the truth which I am disinclined to believe. And 2there is nothing to wake up. There might be some brain activity or biological functions but what made Jahi, Jahi is gone.

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    1. Well said..."what made Jahi, Jahi is gone." If I'm understanding Dr. Franklin's statements correctly, he isn't disputing that. We all know there is no chance of "getting well" after this degree of brain damage.

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  6. Interesting to read his reply but unless a legitimate medical facility is going to offer to enroll her in a study to test for all of these possible signs of continuing existence and her mother accepts the offer, it's moot. So far the only people to testify to her condition are her family (none of whom are licensed physicians and are unreliable at best) and the personnel allied with the sketchy institute (*cough cough*), none of whom have personally examined her in a manner to possibly overturn the diagnosis of brain death, or to define a new category.

    So, for me, she's dead and will remain dead. The burden of proof is on the family, their attorneys and the medical personnel who wish to overturn the diagnosis. They haven't produced one credible shred of evidence to date.

    It really sticks in my craw to refer to them as medical personnel, when there are so many other more accurate but colourful terms to use. It's the best I can come up with and still be mostly polite.

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    1. No. The burden of proof is not on the family. They must follow the law on brain death.

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    2. That's why I use the scare quotes: I.E. "doctor" byrne.

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    3. @anonymous 3:07 - there has been a death certificate issued. The burden of proof IS on the family to prove she is alive. Not on the state.

      This isn't the same thing as issuing a death certificate for someone who has been missing for x years (remember the movie "Castaway"?), where someone reappears and has to prove their identity. Jahi McMath was examined by multiple physicians and her condition qualified her as brain dead. If there is evidence to overturn the diagnosis, they have to prove it to the medical board and the courts. In the eyes of the law, she's dead.

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    4. @Ken Brown - I still feel the scare quotes give them too much credit. They keep pretending that seeing a video and taking one another's word for her condition as being good enough. It isn't and my disdain for them continues to flourish.

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    5. @Ken Brown, like it or not, Byrne is a doctor. We might call him the Delusional Dr. Byrne or just plain Byrne, but the scare quotes imply that he's not a physician at all. That makes us look foolish and kills our credibility when ppl confirm that the fellow is a licensed M.D.,

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    6. @anonymous 3:07 The burden is absolutely on the plaintiffs to prove Jahi is alive. Why do you think it's not?

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    7. Anon 7:20: and whether "doctor" byrne likes it or not, brain death is a thing, but he persists in using the scare quotes.

      Anon 5:48: the scare quotes show my disdain - they show I consider them a doctor in name only.

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    8. anon 20:05 said: "The burden of proof is on the family, their attorneys and the medical personnel who wish to overturn the diagnosis. They haven't produced one credible shred of evidence to date."

      And, that's why I think it's unlikely that the *real* (done by properly-qualified medical professionals, using standard testing procedures) re-evaluation process that Dr. Franklin suggests will actually ever happen.

      For whatever reason, the plaintiffs have *avoided* submitting testimony from anyone who is both (1) a licensed medical doctor qualified in this discipline *and* (2) has actually done an in-person examination. IMHO, the testing and re-examination shouldn't be that difficult to perform. Even the logistics of travel shouldn't have been a real obstacle, if they wanted to send a California-licensed doctor to NJ to do this. "Team Jahi" had no problem getting their supporters to pick up the tab for arranging medical transport all the way across the country, support their housing expenses, and who knows what else...surely they could "sponsor" a doctor, and make arrangements with a local hospital to have testing done under properly-managed conditions.

      IIRC, the "evidence" that Dolan submitted with last October's petition included a few images from an MRI scan that was supposedly done in the lab at Rutgers med school, and results from an EEG that was done in the family's apartment by a person who wasn't actually a qualified technician. I'm not suggesting that those who *did* the testing didn't make best efforts to do it as correctly as possible under the circumstances. But if the plan was to use medical test results as "proof" to refute an alleged prior misdiagnosis, the testing should have been done under the authority of a licensed and qualified MD, at a hospital or other clinical facility qualified to provide the services. That didn't happen.

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    9. Good points, Scarab. Jahi was at St. Peter's Hospital in New Brunswick, NJ for six months (March through late August, 2014). They also transported her to Rutgers for the MRI, reportedly in September, 2014. They obviously had access to appropriate, court-admissible examinations and testing in a controlled medical environment at that time.

      The question must be asked. Their attorney was involved in the testing and evidence gathering. Knowing he was going to take this to court in an attempt to reverse the death certificate, why didn't they conduct tests and gather medical opinions that would be credible and admissible in court?

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  7. That is exactly what I'm trying to say Dr. Cory. Harvard's brain death criterion cannot be applied with today's technology. But no they'll censor you if you disagree with them.

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    1. They haven't even tried to do so with today's technology. Or, if they have used today's technology, they haven't released the results. ALL of the results. That one "slice" from an MRI, if it's the best they could come up with, isn't sufficient.

      Medically and legally, they need to put up or shut up. Whatever medical evidence they have presented to the powers that be in California hasn't led to their withdrawing the death certificate. Nothing has been presented to the court that merits its withdrawal, either.

      If they had conclusive evidence that there was any functional brain remaining, they would have splashed it across every news outlet they could find. All of them, not just the ones that specialize in colourful local interest stories. The family is colourful all right, I'll give them that much. It takes real class to come up with that dreadful onesie and t-shirt with the offensive phrase and hand gesture emblazoned upon it. I wonder who dreamed it up and which family members approved its message?

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    2. It most certainly CAN be applied. what cannot be applied is the ridiculous contention that in order for it to be brain death, every single cell in the brain must be completely non-viable. in fact, as Dr Cory says, it is entirely possible for isolated parts of the brain to still be recieving blood flow and firing neurons, but for the patient to still be irrecoverably dead. by which I mean dead, dead, dead, and go through the pockets and look for loose change dead.

      saying the patient is not dead because a random neuron is still firing is like saying the car is not totalled, because the horn is still making noise.

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    3. Just to play devil's advocate, technically the law does specify that it must be irreversible cessation of ALL brain function. Having a few random neurons firing wouldn't make her Jahi any more than she if she had zero, but it would technically not qualify as brain dead.

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    4. depends on how you quantify "function"

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    5. Excellent point. A "brain function" is whatever a particular portion of the brain is supposed to *do,* in terms of controlling or regulating body processes. If that's not happening, there is no "function."

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    6. Anonymous 16 August @ 20:20, don't you mean the Harvard criteria would no longer apply with today's technology? If plaintiff's attorneys successfully challenge the letter of the law which states, "cessation of all functions of the entire brain", and prove that Jahi's brain has any kind of function, no matter how insignificant, they should win their case. If they win the personal injury case Jahi goes back home to CA and CHO is on the hook for her support. Even if they lose, and it's not likely if she is determined to be alive, then CA pays for her continued care.

      If they win, it sets a legal precedent to challenge the UDDA. Unless the law is changed or re-worded subsequent to this case, the concept of brain death as we know it would no longer exist. We can't have a law that states, "the cessation of most functions of most of the brain", because it's too ambiguous. Brain dead patients would join people in a PVS in LTC facilities funded by private insurance or Medicaid. Of course, we wouldn't call them brain dead anymore so they would be people in irreversible comas.

      I suppose families could still go to court and petition to remove mechanical support because many do that already with PVS patients. Advanced directives might still apply too so the main impact of doing away with DDNC would be on the organ donation program and private and public insurance. I guess it's a good thing that only 1% of all deaths are determined by neurological criteria.

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    7. If a death certificate has been issued, and Jahi is legally dead, couldn't the family be criminally charged with abuse of a corpse?

      I'm not advocating for it, as it would just add rancor to an already messed-up situation. It's just something that occurred to me as possible.

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    8. @Lalock - not in New Jersey. The state has a loophole:

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

      Due to this loophole, Miss McMath qualifies for Medicaid (due to the income declared by her family) and private duty nurse care (RN) 24/7. See pages 26 - 31.

      http://thaddeuspope.com/images/Spears_v_Rosen_07-17-15_Opp_to_demurrer_.pdf


      "The Division of Medical Assistance and Health Services (DMAHS) administers Medicaid’s state-and federally- funded NJ FamilyCare programs for certain groups of low- to moderate- income adults and children."

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    9. Anon 04:47 - If you read that again, you'll see that "loophole" doesn't apply here as it only relates to the declaration of death. It doesn't say a death certificate from another state can be revoked, only that death will not be declared by neurological criteria. She was already declared dead, so that law does not (or should not) apply.

      Any lawyers in the house care to comment? Am I completely wrong here?

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    10. Doc, that's exactly what we all though. It would explain Jahi qualifying for Medicaid, or maybe Nailah just neglected to mention the CA death certificate when she applied. If you look at the process and eligibility requirements, it focuses entirely on income and residency. Medicaid is a federal program but it's administered by each state. Perhaps it's merely a lack of proper oversight. Who knows, such are bureaucracies. I just read a story today in the Washington Post about a family in New York who have a yearly income of nearly $500,000 yet are still getting taxpayer subsidized housing and they aren't even an exception. It seems the HUD program only checks income eligibility when you apply. Once you are accepted into the program you can't be kicked out of it so there are examples like that all over the country. Meanwhile, people who legitimately qualify remain on waiting lists. It's crazy.

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    11. I just emailed Professor Pope and asked if he could explain for us. He's an attorney and professor of law as well as a bioethicist. Thanks to Dr. Pope we are able to read all of the court documents and follow this case as it winds through the legal system. I hope he replies.

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  8. I think it would be interesting purely from an information standpoint, so long as it doesn't extend the time they keep brain dead patients on machines or give the general public the idea that brain death is curable and that the patients will wake up.

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  9. I'm hoping someone with a much better understanding of the legalities of medicine in the US (no, not you, John) can answer a question. If this lawsuit is neither dismissed nor settled out of court, will the public finally be able to get the whole story? Or will it still be at the discretion of the family due to HIPAA? I feel like Dr. Franklin's reasoning is based on the assumption that Jahi's family is telling the truth, but the fact that they have been caught changing their story before makes me take everything they say with a huge grain of salt.

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  10. I guess I would have to agree with the others. Why even start questioning the brain death criteria until it is determined that she is indeed moving, experiencing menarche and responding? Until she is examined by qualified professionals it seems like putting the cart before the horse to question the criteria when the statements made by the family should first be verified.

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    1. Precisely. At this point we do not have EVIDENCE of hypothalamic function, menstruation, or purposeful movements. We have the family's ASSERTIONS that these are happening, and the family is not medically trained and may be honestly (or not so honestly) misrepresenting things. So, the first order of business should be to get independent, professional verification with objective evidence. Only then should we accept their assertions as factual and enter any evidence obtained into our thinking about the case and any wider ethical, political, or medical practice meaning. It seems very strange to be proposing re-writing the UDDA on the basis that a family asserts certain "facts" not yet even verified.

      MKey1

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    2. MKey1, attorney Chang says they have "teams of neurologists" waiting to testify that Jahi exhibits brain function and their evidence is as you listed. If they are successful in challenging the letter of the law which states that all functions of the entire brain must be lost, and their evidence is accepted as proof of brain function, then I don't see how the law can be rewritten. Like I said earlier, you can't have a law that says cessation of most functions of most of the brain because it's too ambiguous. If they are successful it means the end of DDNC, period. That's why the stakes are so high. We created this issue with the advent of mechanical ventilation and now we have pseudo-life. The courts are all over the place in their rulings. Some jurisdictions prevent support from being discontinued and some don't.

      This case has already impacted New Jersey. I read on Professor Pope's blog that a young boy diagnosed as brain dead was recently moved there from another state to take advantage of the loophole. The same right-to life groups that helped Jahi were involved. Professor Pope also posted the recent court documents involving the brain dead woman in Nevada, Aden Hailu, who has been in an ICU since April on mechanical ventilation. The Nevada Supreme court has ruled to extend the original TRO preventing the hospital from discontinuing support. The judge in that case might be waiting to see how this one pans out. I think Byrne is involved in that case too. Maybe they're trying to move her to New Jersey, at least that would free up an ICU bed.



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    3. we already know their teams of "neurologists" are a collection of brain death deniers, many of whom have never actually seen the girl.

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    4. I read the court documents regarding the Hailu case posted on The Medical Futility Blog and the arguments made by the family's attorney are similar to those in the McMath Case. The district court ruled against the testimony of plaintiff's doctors because neither are neurologists. One of their doctors is Paul Byrne. They appealed to the Nevada Supreme Court and recently won another continuation of the lower court's TRO.

      Plaintiff's doctors, Byrne and Callister, argue that Ms. Hailu doesn't meet the UDDA criteria because she retains some brain function. As evidence Dr. Callister testified that her EEG wasn't completely flat, she has bowel movements, makes urine and "her skin is in remarkable condition". Dr. Byrne testified that she is producing TSH and maintains body temperature. They are trying to compel St. Mary's Hospital to treat her with thyroid hormone, perform a tracheostomy and insert a gastric tube while they try to find a facility that will take her. Different state and patient but it's the McMath case all over again.

      The language used by plaintiff's attorneys in their appeal is similar to what Dolan said in his original court documents. They say the hospital will kill Aden by withdrawing support. The hospital, of course, maintains that she is already dead.

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    5. If anyone is so inclined, head over to The Medical Futility Blog and read Byrne's entire testimony regarding the Hailu case. It has to be read to be believed, meaning it's unbelievable. For added measure read the hospital's reply shooting it down, point by ridiculous point. Byrne outlined a treatment plan consisting of 33 separate therapies that he believed would enable Ms. Hailu to recover from brain death. He cited several instances of other people who supposedly recovered after a diagnosis of brain death. All of his links referred back to stories on the lifenews.com website which clearly has an agenda rejecting brain death. The single neurologist that Byrne cited who supported his theory that thyroid hormone therapy could reverse brain death practiced in Brazil.

      The hospital in which Ms. Hailu remains on a ventilator performed 4 separate apnea tests, all of which confirmed their diagnosis of brain death. Since Dr. Byrne rejects the use of apnea tests, he doesn't accept their validity in determining death. The court rejected Byrne's testimony yet somehow this case still languishes in the court system.

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    6. If one of the criteria for brain death is the skin not being in remarkable condition, I've known LOT of teenagers who were at risk of being found brain dead.

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  11. When this situation happened in Kentucky, after the McMath case BTW, the judge followed the law.

    "The Kentucky Legislature has made a policy decision, based on scientific medical evidence, of when life ends," McDonald-Burkman wrote in her decision. "There is no authority to suggest the parent of a legally dead child can override the Legislature's definition of death."

    Jahi fit the definition of brain death. Nothing has changed. The family's claims are exactly that, claims, with no verifiable confirmation the claims have any merit, despite the more than adequete time for them to get that "proof". Now other cases are popping up cost hospitals in time, resources and public perception as being the mean old hospital that just wants to kill the patient. Continuing to give any credibility to these people is not serving the public good.

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  12. I am fascinated with this case, too, but not from a medical standpoint. Rather, the emotions that are expressed with every story about Jahi reflect the divide in our society over "What is life?". It is essentially a religious question, but also a scientific determination. It is tangentially related to questions about the use of fetal body parts for scientific research, for example. I think this article is interesting because its author seems willing to step outside of the box that his scientific outlook implies and at least look at aspects of the case which people of a strong religious bent hold for religious (and familial love and loyalty) reasons. He seems not afraid to ask scientific questions that might give support to the family's stubborn love and denial of death. The comments which follow almost immediately snap shut that tiny sliver of openness, in judgement and scorn of the family. This, also, is fascinating to me...

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  13. As Dr. Frankin states, one of the most interesting aspects of this case is the fact that Jahi's body didn't "die," in the observable sense. But how much of this is due to medical support, rather than some actual continuation of brain function, is a big unknown here.

    As we know, many of the "signs of life" include functions that are regulated by hormones that are naturally produced by the hypothalamus and pituitary gland. But we've also been told, via statements made by Dolan and the family, that hormone therapy is part of the "care" that is being given to the body, to regulate metabolism, body temperature, blood pressure, and other bodily functions. So, the fact that Jahi's body has not deteriorated to the extent that one would expect if the only medical support was the ventilator and hydration, and has retained many of the "normal" functions, including the observation of what appears to be the beginning of puberty (breast development, and the onset of menarche) *could* be due to the hormone replacement therapy rather than the body having a functional hypothalamus.

    Obviously, there's no way for any of *us* to figure this out. Only an examination by qualified medical professionals, perhaps with some additional testing and observation to see if these "signs of life" remained constant if the medication was adjusted, would sort this out.

    I also agree with many others who've posted, suggesting that the family's reports of "movement" and "responsiveness" should not automatically be considered as valid medical observations without further investigation.

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  14. If you don't believe the family, then the patient is dead. She was diagnosed as brain dead and a certificate has been issued. Fine. Makes sense.
    If you believe the family, then you pretty much have to concede it is necessary to reopen the question of whether she is brain dead and, more importantly, what that means.
    If you are not sure, like me, you have the inescapable problem that you have somatic survival at this point so the question is not moot. That doesn't mean it is answered one way or another - skeptics will cite the cases of prolonged somatic survival even in well-diagnosed brain death, and true believers will say "you see the experts were wrong". My feeling is, in this case with prolonged somatic survival, we must give the benefit of the doubt to reevaluation, which includes investigating the family's claims to see if they are well-founded or not, simply because of the profound implications of the findings- either way.
    Cory

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    1. I agree that another evaluation needs to be done - by a competent unbiased doctor who does not reject the concept of brain death and who actually has contact with the actual patient.

      however, I am confident that the evaluation will show that there is still no brain function and I am confident that team McMath will reject it because momma knows best.

      Delete
    2. Regarding the question of whether or not we "believe the family," I personally think that it's entirely possible that they *are* honestly reporting what *they* have actually observed. IMHO, the question isn't so much a matter of whether or not the family is "telling the truth" as it it is whether or not their "truth" means that the brain death diagnosis was incorrect.

      We need to keep in mind the fact that, for thousands of years, humankind was basically on the same page, in terms of being able to figure out when a person was dead. The heart stopped beating, so there was no longer any pulse, blood circulation, or respiration. There was no "responsiveness," and even reflex movements stopped shortly after the cessation of heartbeat and breathing, as the body systems shut down. Decomposition of the body then happened relatively quickly, as nature took its course.

      But we now have the ability to keep respiration and heartbeat continuing, by using ventilator support, if the body's brain can no longer perform this function. We can even supply hormones to regulate other bodily functions when the brain can no longer produce them.

      So, what Jahi's family is seeing is totally different than what we'd traditionally expect a body to look like more than a year and a half after a declaration of death. With the heart still beating and respiration maintained by the ventilator, hormone replacement to regulate other essential bodily functions, and some occasional movements, the body just doesn't seem "dead" to them.

      We also need to remember that, to a degree, they may be also be seeing what they want to see, in terms of actual "responsiveness." If they are trying to verbally communicate, play music that Jahi liked, etc. and perhaps an occasional movement coincides with this, of course they will interpret this as "responsive," because that's what they're *hoping* to see.

      As I see it, the biggest medical question here, which needs further investigation and evaluation, is how much of what the family is seeing is due *totally* to the extraordinary medical maintenance being administered, and how much may be due to the brain possibly still having some real functionality, despite the severe damage.

      But, for reasons already cited by others commenting here, I don't see that happening.

      Delete
  15. Jahi is dead. You know it. I know it. Dr. Franklin knows it. Withing nanoseconds of receiving whatever payout they expect to get, and/or an actual bill for corpse care she'd have to personally pay, her parent will admit it. An actual parent who actually believed there was hope would be asking for retesting.

    Jahi's mom has publicly demonstrated wonton disrespect of law, medicine, charity, and the public at large. The fact tht Jahi's corpse is sill warm is only by massive support from a group of beady-eyed lawyers, wanna-be doctors, and religious fanatics all with some disingenuous plans to profit from the deluded and dull witted. Don't join that parade Dr. Franklin.

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    1. It's wanton, not wonton.

      Delete
    2. Sometimes the error provides a moment of levity. I smiled when I read 'wonton' because this whole situation is simultaneously sad and infuriating. So it drives me crazy when an attorney uses 'pallet' rather than 'palate' (twice!) but thinking about soup helped.

      Delete
  16. The family isn't permitting Jahi to be examined by anyone with a valid medical license. The physicians who do hold valid licenses aren't examining her in a manner to potentially overturn the death certificate. What is stopping them from doing so? If she doesn't meet the criteria of brain dead, they stand the chance of being awarded millions of dollars so they have a huge incentive to do this properly. Yet, they haven't taken advantage of it.

    I have no reason to believe their assertions. Not without conclusive evidence. If they have it, they should present it to those who can overturn the death certificate.

    Hey, look, published in April 2015 and at the New Jersey Medical School - UMDNJ, Newark, NJ. That's not too far away from where the Winkfield family is residing, is it?

    http://www.researchgate.net/publication/5337047_Radionuclide_Studies_in_the_Determination_of_Brain_Death_Criteria_Concepts_and_Controversies

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    Replies
    1. It's ~31 miles from the apartment in Somerset, NJ to Rutgers.

      Oops. It was published in 2008, not 2015. Bah, I can't open the full text of another article that was published in 2012 while at home. Perhaps someone else can. It's the second link article referenced (Scintigraphic Confirmation of Brain Death. Semin Nucl Med 2012; 42:27-32.)

      http://www.nucmedresource.com/brain-death-scan.html

      Delete
  17. No one is STOPPING the family from getting that reevaluation. The only people the family had evaluate her to this point are either unqualified (the EEG tech), people who don't believe in the concept of brain death and/or people have not examined her in person but base their judgement on what the family says. They have no one unbiased about brain death examine her using the established criteria to determine brain death. The goal for the family is to REDEFINE death, despite the medical establishment and the legislature having already defined death. The fact is there are many financial implications that make it HIGHLY desirable for the family having her declared alive. It's part of the impetus here which is disturbing.

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    1. I don't even care one of the physicians performing the tests is biased against brain death, just as long as the tests are performed properly. Then the attorneys can present the findings.

      Until they have data that demonstrates Miss McMath doesn't meet the criteria, they should stop running to the court system. They know what they have to produce to win the case, but they aren't bothering with it.

      Delete
    2. I agree. Get a reputable doc with no agenda (and who is a real doctor) to re-examine her, and go from there. If they had all of this "proof", you'd think they would be beating down doors to make it happen. The fact that they have not done this speaks volumes to me.

      Delete
    3. I agree. Get a reputable doc with no agenda (and who is a real doctor) to re-examine her, and go from there. If they had all of this "proof", you'd think they would be beating down doors to make it happen. The fact that they have not done this speaks volumes to me.

      Delete
  18. I'm with anonymous "Cory". I'm not sure at this point. The medical authorities at the time seem to have overstepped their powers of prediction. We were all confidently assured that within a few weeks Jahi's body would further deteriorate. In fact one doctor filed something claiming that the interior lining of the gut was already rotting and being expelled from the body. No doubts expressed. It was totally over.

    Now it's been more than a year and a half and none of this has come to pass, so that fact alone raises questions. Maybe the doctors didn't get it right the first time around? Is that at least possible? We're out on the fringes of knowledge here, and doctors are not infallible. Remember CHO has a giant financial incentive to keep her legally dead. If she is found to be still living their potential malpractice exposure skyrockets (assuming that someone committed malpractice here, which we do not know.)

    So if it were to me to decide, like, if I was the judge, I would order another thorough neurological exam by disinterested parties. NOT the guy who did it last time, who wants very badly to find that he was right. NOT someone connected with CHO. I don't think they're dishonest, just a little biased. What's the downside? That we might find out the truth, either way?

    CHO can perhaps be forgiven for resisting further investigation. They have a finding they like, and of course they want to stick with it at all costs. What if another investigation proves that Jahi is not brain dead? Lots and lots of money potentially on the table here.

    If I were the family I would be demanding a new evaluation. That they seem to be resisting it is perhaps significant. Do they in fact know that any impartial findings would come out against their position?

    So everyone on both sides would rather wade around on the blogosphere and make chargers against everyone else than get a fresh evaluation. No matter, we need one anyway. As Cory said,

    "My feeling is, in this case with prolonged somatic survival, we must give the benefit of the doubt to reevaluation, which includes investigating the family's claims to see if they are well-founded or not, simply because of the profound implications of the findings- either way. "

    ReplyDelete
    Replies
    1. Why does the family need a court order to have a qualified independent neurologist or two examine Jahi? They don't have to "demand a new evaluation." They can do this at any time. Literally nothing is stopping them. So, why do you suppose they haven't...or if they have, why do you suppose the results found have not been made known to the public or the courts?

      MKey1

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    2. Your assertion that people want to "wade around the blogosphere" rather than get a new evaluation is incorrect. The family can get a new brain death exam using established brain death criteria at any time. They have had more than a year to do so. So while you are certain we "need one anyway" you need to understand who is and who is not preventing this new exam you believe is necessary before you point fingers at the medical establishment for "wanting to stick with it at all costs" in reference to the six neurologists who declared Jahi brain dead. (BTW Dr. Fisher is not part of the CHO....he has no dog in this fight and has done the work on this case pro bono)

      I don't get how the CHO in California would even go about "preventing" a Brain Death exam in New Jersey.

      Delete
    3. RE your comment: "We were all confidently assured that within a few weeks Jahi's body would further deteriorate. In fact one doctor filed something claiming that the interior lining of the gut was already rotting and being expelled from the body. No doubts expressed. It was totally over."

      I wasn't confidently assured of anything. Stating that her body would further deteriorate, and the report of intestinal sloughing prior to her release from CHO, is not the same as a declaration that her body would without doubt give out within weeks.

      I have not seen a statement from any medical professional that predicted 'longevity' with that level of certainty. They have only said that a body in this state typically gives out sooner rather than later. Physicians who have spoken on this—including DocB, Dr. Franklin, Dr. Shewmon—have said from the beginning that while longer 'survival' is rare, it is neither unprecedented nor a sure sign of brain function, life or potential. The only talk of these supposed medical predictions that she would not last this long has come from the family's attorneys, Byrne, RTL groups, journalists and non-medical commenters.

      That her body has remained this long is atypical, and a testament to the quality of care. There is, however, no verifiable evidence indicating if or how her condition or stability might have deteriorated since January, 2014.

      Delete
    4. If you read those reports from the hospital you would also know that at that time Jahi was not being 'fed'. Now she is. Her body is being nourished. I don't think the doctors report of sloughing of the gut was wrong at that time. You seem to be on the fence here and for what reason I don't know. It seems you are calling out the hospital as the 'big bad establishment'.

      No one at all has stopped them from getting independent testing. If the tests they did were done properly in the first place, this would not be in question. If they wanted to prove her alive, they could have easily done so. They haven't done it for what reason?

      Kate Johnson

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    5. I think that statements regarding her longevity as well as whatever they discover the condition of the body to be in (because sooner or later, some sort of exam is bound to be ordered so they WILL know the condition) is not going to shed any light on anything. The reason it is "rare" for a corpse to maintain a heartbeat for so long is simply that not very many people strip away all dignity and attempt to bring it back to life for this long. Sane people pull the plug. If everyone-or even 100s or even 10 families treated the corpse of their dead children like this, then we would find out what is typical, or average, or rare but sane people bury their dead so we don't know what the "average time" is that someone will stay artificially alive. And if we want to live in a civilized society, I suggest we do not strive to find out!!

      As for another exam, no one is stopping that from happening. The family doesn't want it, most probably because they know what the results will be.

      This corpse was sent to some medical facility after CHO and remained there for a relatively long period of time. Medicaid is supposedly sending nurses in to the apartment to help care for the corpse. That means in the year and a half since leaving CHO, scads of medical professionals have had opportunity to witness signs of life if there were any, and you better believe that Nails and company wouldn't hold them to any privacy laws if they were willing to tell the world she is alive---and yet we have heard from NONE of them. That in itself speaks volumes.

      Delete
    6. Excellent point. What's "rare" about this situation is that it's something that we don't typically get a chance to *observe.*

      For medical professionals, it's fascinating because of the opportunity to learn more. For some religious fundamentalists, who believe that "life" continues as long as the heart can be kept beating, it may appear to be a miracle. For many of the rest of us among the general public, it raises questions about the moral, ethical, legal, and financial consequences of futile medical care, and its impact on society. But whatever our interest or personal opinion, *all* of us are lacking enough comparable information to determine what is *average* in situations like this one.

      I also agree with your observation about having heard no credible reports from *any* of the medical caregivers about meaningful physical improvements. IMHO, the fact that Jahi's family ended up in the "home care" situation also speaks volumes.. It suggests that they have not been able to find another qualified medical doctor in the state of NJ to *fully* assume responsibilities for "Jahi's care" after Dr. Fellus lost his license, otherwise they could have done a transfer to another hospital or skilled care facility. Even with 24/7/365 nursing care, it's gotta be *very* awkward trying to maintain the equivalent of ICU care in the bedroom of a residential apartment.

      We don't know what Dr. Eck is really doing, or not doing, other than apparently signing off on whatever needs to be signed for Medicaid.
      That's a whole different area of speculation, since you'd *think* that the person who is officially on record as "Jahi's doctor" would definitely have something to say on the matter...

      Delete
    7. Any medical professional who has had contact with this case is bound by HIPPA and can't say anything unless the family releases them from its constraints. That the family has not done so kind of suggests there wouldn't be any that could back their version of Jahi's current condition. They never let CHO release any information either. Right now they can say anything they want and no one can prove otherwise. Eventually, the court will require real evidence, independently verified. Until such time it's still smoke and mirrors.

      Delete
  19. The 2014 990 for IBRI isn't available at this time, or at least I haven't found it yet. However, the 2013 990 is horrifying. See page 11, line 22. Starting on page 36 the members of the scientific advisory board are named.

    http://990s.foundationcenter.org/990_pdf_archive/861/861136864/861136864_201312_990.pdf?_ga=1.113516161.701318962.1439860122

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    1. Unless you provide more info or some context this reads like a non sequitur.

      Delete
    2. Loans and other payables to current and former officers, directors, trustees, key employees, highest compensated employees, and disqualified persons $341, 500.

      Approved by the BOD - sure. Because they're loaning money to one another. Of course they approved it.

      Delete
    3. I forgot to include this comment earlier (sorry Doc) - I don't think they're honest and they're playing games with the money. The more charities 990's I've looked at in the past 5 years, the more horrified I am by just how little oversight there is by the states and the IRS. Naturally, both are subject to revenue declines even as the need for oversight in many areas increases.

      Delete
    4. Anon-about-IBRI -- my point was that you dropped IBRI's 990 into this w/o explaining its connection to Jahi's past or present circumstances.

      Delete
    5. IBRI has been associated with Jahi McMath's case for a very long time and more than one physician who has submitted testimonials stating she's not dead are linked with IBRI too. I find that suspicious.

      2013 990:
      Dr. Philip DeFina CEO/CSO (money is being loaned by him by IBRI)
      Dr. Charles Prestigiacomo board member

      (sorry for the capitals - I copied & pasted it)
      COLLABORATIVE RESEARCH RELATIONSHIP WITH DR CALIXTO
      MACHADO FOCUSING ON ISSUES OF BRAIN DEATH AND COMA

      I wish they hadn't used all capitals and availed themselves with punctuation in the Schedule O (explanations) section. It's incredibly hard to read and wade through.

      It's all legal but it simply underscores how incredibly murky the world of finance, charities, etc. can be and this lends itself to questionable practices. Loaning money to the CEO may have been approved by the foundation, but I regard it with a great deal of suspicion. If you're on a board, you're not supposed to go along with everything. You are supposed to protect the integrity of the organization. Financial sleight-of-hand that would land individuals in a lot of hot water should affect members of organizations the same way.

      The fact that the 990 for 2014 hasn't been filed yet, to the best of my knowledge, is alarming. I see that they have a history of filing in November rather than say, April or May, but that doesn't make me feel any better.

      Delete
    6. I finally found most IBRF's 990's. If anyone is interested in wading into the murky waters of charities and how they compensate themselves, please do so. It's not comforting.

      I see Dr. Fellus on the 2012 form 990 (new staff member). He's correct that you don't need a medical license to do research.

      https://projects.propublica.org/nonprofits/organizations/861136864

      Delete
    7. delfina is NOT an MD. He is a psychologist. He is about as qualified as my granny's deaf, arthritic dog to make any determination of brain death or any other medical diagnosis.
      The others may or may not be medical Drs. Machado is not in the US, and there is no report that either he or Prestigiacomo ever actually examined Jahi. Fellus was an MD involved in the IBRF until he lost his license to practice because he got caught having sex with an underaged, unconscious TBI patient.
      The organization itself is shady! THey wanted over $100k to "help" Jahi and started a GFM site to raise the money,bombed out with only a 100$ donation and then they seem to have backed off.

      Delete
    8. @Anonymous 19 August 8:18 -

      I know, but that's how he's referred to regularly. It would be more honest and correct if they used Ph.D., but I'm not coming away with the feeling that honesty the point (*ahem*).

      Here's another disheartening article that isn't directly related to Miss McMath - but it affects everyone whether they realize it or not.

      http://www.washingtonpost.com/news/morning-mix/wp/2015/03/27/fabricated-peer-reviews-prompt-scientific-journal-to-retract-43-papers-systematic-scheme-may-affect-other-journals/

      Delete
    9. Whoops. I meant to include this one too.

      http://www.washingtonpost.com/news/morning-mix/wp/2014/07/10/scholarly-journal-retracts-60-articles-smashes-peer-review-ring/

      Delete
    10. Anon 19:21, you're right -- I don't see how those WP stories are relevant to the McMath case.

      Delete
    11. @Anonymous 20:49 -

      If people who are conducting research are also faking reviewers, or selecting those who are favourable to their point of view/results, that is bad. Many of the publications IBRI features are very small and rely heavily upon the submitters to not falsify research, suggest reviewers, etc.

      While it's a small field, that doesn't mean they shouldn't try to submit to larger, more prestigious journals with a more rigorous editorial process.

      Going round and round in circles praising one another's findings isn't what is supposed to happen in research. It's akin to boards approving all sorts of things board members propose, regardless of whether it's advancing the stated mission of the organization.

      Delete
    12. IBRF, International Brain Research Foundation. You referred to them as IBRI several times.

      Delete
    13. I have got to get my eyes examined. Particularly if I'm going to print out and then wade through IBRF's 990's this weekend. Just for smirks and giggles.

      Seriously though, I don't find these people funny at all.

      Delete
    14. You used the correct acronym once so it was obvious you knew it. I just thought you might want to know :o)

      Delete
    15. Details matter. Thank you for pointing it out to me.

      Delete
  20. @Eleanor A Quatrain (love the name):
    Here is my analogy.
    A man dies in a private plane crash over water and his body is never found.
    After an appropriate interval he is declared dead and the beneficiaries apply for his insurance.
    The insurance company balks,claiming they have evidence he is alive.
    The beneficiaries go to court for payment.
    The right ruling would be for the judge to ask the insurance company what evidence they have he is alive. If there is reasonable, but not dispositive, evidence the judge can ask them to come back with more evidence in a reasonable period of time.
    If not they must pay.
    Granted it's not a perfect analogy but I think it is good for understanding where we are.

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    1. If they have no "evidence" this month do we come back in six months when the family (again) swears she is alive and do more testing? How about four months after that when they swear THIS time she is really alive? Death is NOT fluid. Once you are dead, you are dead. The analogy doesn't take into account the body and the medical evidence in this case. In your case it was the presumption that man died. There was no body. In this case it was a medical and legal fact that she died. Her body was examined by six doctors confirming that fact.

      All this case has done is spread misinformation and suspicion about brain death. People need closure, not false hope and guilt about "am I doing the right thing". It's causing needless suffering for these families going thru similar situations. That's my big objection to continually revisiting this "is she or isn't she dead" over and over. This isn't happening in a vacuum.

      Delete
    2. key point being the judge will tell them to PRESENT the evidence.

      reminds me of a conversation my boss had with a customer in one of my old jobs.
      customer: "I've got friends who will testify in court it wasn't like this, this morning"
      boss: "I have friends like that, too."

      Delete
    3. I don't think that is in question. What is in question here is why they have not come up with the proof. They are re-submitting the same proof that was turned away over a year ago. That is what is in question by some of us.

      If they would actually do the testing that is required, or show some new information and allow another independent neuro exam, then let them show those results. Just because you can test for something that you could not test for 40 years ago doesn't change the fact that she is brain dead.

      Adding more new fangled gadgets doesn't change that fact. It muddles the waters and makes people who are uninformed second guess the facts.

      They are trying to pass off a video exam or paper only exam as a real neuro exam. NO. No. and NO.

      Kate Johnson

      Delete
  21. They were given a date and time to present evidence, but it was dropped. Does anyone know why they dropped it? It just seems to me that if they had the necessary proof in September of 2014 and the court agreed to hear what they had to say in December, they should have done so. That was plenty of time for physicians to confer and gather everything together. They were adamant last year she was alive and they had the necessary proof.

    It just strikes me as being a waste of time and resources.

    Case Number: RP13707598 Title: Matter of Jahi McMath
    0/23/2014 Motion Reservation Set for dept: 14 date: 12/09/2014 time: 01:30 PM
    10/21/2014 Probate Hearing Dropped from dept: 31 date: 12/09/2014 time: 01:30 PM
    10/21/2014 Petition Reservation Set for dept: 31 date: 12/09/2014 time: 01:30 PM
    10/14/2014 Correspondence (General) Filed
    10/9/2014 Motion to Continue - Dropped
    10/9/2014 Civil Law and Motion Hearing Commenced and Completed
    10/8/2014 Order Granting CMC 1) Confirming Petitioner's Withdrwal of Petition for Writ of Error 2)Stating No C
    10/8/2014 Objection \Petitioner's Objection to the Appoinment of Dr. Paul Fischer as Court Appointed Expert Fi
    10/8/2014 Motion to Continue Hearing Confirmed for 10/09/2014 09:00 AM D- 31
    10/8/2014 Motion to Continue Hearing to Present Additional Evidence, etc.
    10/8/2014 Continuance of Hearing Reservation Set for dept: 31 date: 10/09/2014 time: 09:00 AM

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    1. It was dropped because the evidence that they had (a single MRI slice that could have been from any date after she died and was not certified to have even been hers, a video-also undated- of her moving spasmodically and hearsay testimony by Drs who were not qualified to make a brain death determination and had never examined her) was disputed by Dr. Paul Fisher, who had examined her himself and wrote a letter to the court stating that nothing that they were planning to present would prove she had come back to life.

      The other reason that we think it was dropped was because Dolan was trying to push through a proposition (I can't remember the number) to get rid of the cap on malpractice when a child dies. The proposition failed at the polls, and since Jahi's case was pretty much his show piece case and failed, he didn't have any personal reason to pursue it. That's why another attorney is on the case now.

      Delete
    2. that was actually a cap on noneconomic damages in ANY malpractice suit. - or in essence, a cap on how much profit the plaintiff could claim.

      Delete
    3. Thank you Anonymous@8.09. I thought it had something to do with Proposition 46. How very sad that many people are using her body, and her family's emotions, only to further their careers and potential financial gains.

      I don't know when her immediate family switched from "overcome with grief" to "how can we continue to be given money" and obviously, I hope it hasn't infected all of them. It appears that it's taken hold in at least two of the adults who should know better by now.

      Delete
    4. It was a cap on noneconomic damages in any MED malpractice suit.

      Delete
    5. I'm also speculating that the IBRF began to pull back on its involvement with the case around this time, once they saw that their "evidence" wasn't going to be successful in convincing the court to rescind the death certificate, and Prop. 46 didn't pass.

      Had both those efforts succeeded, *they* could have potentially seen some significant financial benefits too. If the cap on med mal settlements had been lifted, and if Jahi had been "declared alive again," they may have had the opportunity to continue their "innovative treatments" for years, and been paid some big bucks to do so.

      Instead, we noticed that they set up a Give Forward page to raise money for Jahi's "treatments" in early November 2014, to try to raise a half a million dollars to "Keep Jahi Alive." After raising only $175, they ended the fundraising efforts in February 2015.

      Based on the timing here, I'm speculating that *maybe* the IBRF had been footing the bill for the "care" of Jahi's body when it was originally moved to NJ, perhaps as a research experiment, in anticipation of a bigger payday when Dolan's plans came to fruition. When that didn't happen, they started looking for someone else to help foot the bill. But *that* apparently didn't happen either. Hence, the Medicaid application, which was approved on January 2, 2015.

      Again, just speculation here. But the timeline of these events hints at the possibility.

      Delete
  22. I'm from NJ and there is another trending story that has just come out today that is similar to this. A 13 year old kid was declared brain dead BUT he's supposedly showing signs that he is indeed not brain dead, blah blah blah. I happen to come across this article as I was scrolling on Facebook and it popped up from north jersey.com Here's the link! http://www.nj.com/passaic-county/index.ssf/2015/08/boy_pronounced_dead_in_route_80_crash_shows_signs.html

    ReplyDelete
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    1. I'm so sorry for the family's multiple losses. That's heartbreaking. I see that he was tested again today and there is no change.

      http://www.nj.com/passaic-county/index.ssf/2015/08/mom_of_boy_declared_brain_dead_fighting_for_his_li.html

      Delete
    2. That NJ case is now going down the Jahi path -- failed multiple tests, family says he's alive because he twitches, they posted a video, moved him to another Jersey hosp ...

      Delete
    3. Oh dear. I bet there are quite a number of medical snake oil salesmen blowing sunshine up their skirts too. I don't suppose IBRF is amongst the herd, are they?

      Wednesday

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    4. http://www.nj.com/passaic-county/index.ssf/2015/08/boy_declared_brain_dead_transferred_to_robert_wood.html

      I feel badly for his family because losing three people at once is heartbreaking. I hope that they do come to terms with his death soon though. That way if they change their minds and wish to donate his organs they will still help someone else.

      Delete
    5. @wednesday; absolutely.

      Jersey: the undead state.

      Delete
    6. New York too, apparently.

      "A person who has received a brain-death diagnosis cannot breathe on his or her own and is legally dead, in all 50 states. In two states, New York and New Jersey, hospitals must take into account the family’s religious or moral views in deciding how to proceed in such cases."

      Wednesday

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    7. The more recent article contains yet another episode in the series, "Videos of Spinal Reflex Movements in Brain-Dead Bodies."

      First we saw Jahi's foot moving when someone touched it with an ice cube. Later we saw it moving (maybe sometimes) when her mother spoke. More recently, we saw Lisa Avila's legs move when her breasts were pinched. Now we see Mikey's foot moving (sometimes) when his mother touches one of his toes that she thinks might be sore. Article also says that family had the doctors rescind the determination of death when they saw movement in the shoulders, arms, and legs. Seems like the "Lazarus reflex," which should have been explained to the family by their doctors.

      Thankfully, Aden Hailu's family has graciously spared us from seeing the act of "putting out urine and having bowel movements." But that hasn't stopped Dr. Paul Byrne from actually including that information in the statement he's submitted to the Supreme Court of the State of Nevada, as "proof of life."

      Sadly, Lisa's family were the only ones who finally figured out on their own that "life support" of a brain-dead body doesn't "support life." :(

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    8. Anonymous 20 August at 07:23

      If you are quoting from the article written by John M. Luce, he was wrong when he included New York. If you read Dr. Pope's response, he corrects that misinformation.

      Delete
    9. The young boy, Michael LaVecchia, lived in East Stroudsburg, PA and was on his way to his mom's house in Long Island, NY. He ended up in St. Joseph's Hospital in Paterson, NJ due to its proximity to the crash site. Doctors at St. Joseph's declared him brain dead. His mother wanted to move him to Stony Brook University Hospital in NY but they deemed him, "...medically not appropriate for transfer," though St. Joseph's is "on board with the move." What exactly does medically not appropriate to transfer mean? Obviously, he was transferred, just not there.

      He ended up at Robert Wood in New Brunswick, NJ, which is either fortunate in their circumstances or intentional for the same reasons. I'm curious, is the St. Joseph's in Paterson the same hospital that Jahi was in prior to moving into the family apartment? They certainly aren't opposed to declaring death based on neurological criteria and seemed anxious for the family to move him out of their facility. Can't say I blame them, though.

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    10. http://www.medscape.com/viewarticle/845463_3

      "But the NYDOH did more than formally recognize brain death, as it also required hospitals to accommodate religious or moral objections to brain death."

      "In their final decision, the court extended the order restraining the hospital from discontinuing life support systems for 7 days to allow the family time to seek out a another facility willing to take the child."

      I don't know how long a hospital in NY is required to provide life support to a brain dead patient. Is it spelled out somewhere?

      Wednesday

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    11. @ Anon. 16:14 - Jahi was actually in St. Peter's Hospital in New Brunswick, not St. Joseph's in Paterson. I'm guessing that the Stony Brook Hospital, since it was in NY, deemed Mikey "medically not appropriate for transfer" because they may have chosen not to provide futile medical care to a patient already diagnosed as brain dead, even though the family has chosen not to accept that as a legal determination of death. Remember that NY is not required to even make its more well-defined "religious accommodation" (basically, just continuing vent support until the heart stops beating on its own and nature takes its course) in this case because Mikey's brain death diagnosis didn't happen in that state.

      Also, as we saw in Jahi's situation, a family just can't decide to move the body of their brain-dead loved one into any particular hospital, and demand certain treatments, to accommodate their personal preferences. There needs to be a doctor involved, who has admitting privileges at that particular facility, to *accept* that patient into his/her care. The only reason Jahi's family ended up at St. Peter's in the first place is because she came in as a patient of Dr. Jonathan Fellus. Once he was out of the picture, and no other doctor on staff took over the case, St. Peter's was no longer able to provide service.

      If there were no doctors at Stony Brook who felt that it was ethical to provide further "treatment" to Mikey, that hospital could refuse to accept the transfer.

      Delete
    12. After I posted I realized I got my saints mixed up but thanks for the clarification. I was also thinking the 'medically not appropriate to transfer" referred to the hospital agreeing with the original determination that the child was deceased so no further treatment was warranted.

      In the two CHEST.org links I posted Dr. Pope and Mr. Luce had differing opinions regarding what hardships would be imposed on hospitals and medical practitioners if every state adopted the religious exemption. Dr. Pope's opinion suggested the hardships would be minimal because so few religions actually have a doctrinal adherence to the cardiac-respiratory model of determining death. If the exemption was limited to the "reasonable accommodation" version which most states already practice, Dr. Pope says:

      "The duration of accommodation would be limited to just a few hours or days. And these disputes would be rare given the relatively small US population with religious objections (Japanese Shinto, Orthodox Jews, Buddhists, Muslims, and Native Americans)."

      If the people claiming the exemption actually belonged to and practiced the religions mentioned the population would be small. The problem arises when folks with no discernible ties to any established religion, let alone the few mentioned, claim the exemption based on their strong Christian faith. No mainstream Christian religion has any such opposition to DDNC so really what those people are saying is it goes against their own personal beliefs which in many cases is rooted more in denial than any doctrinal faith. It was never the intent of the law to make exceptions based on personal belief alone.

      We see enough conflicts in the states that have adopted the so-called religious freedom laws. People are refusing to carry out the duties of their respective jobs because they claim that doing so would infringe on their freedom to practice their chosen religion. Pharmacists can deny filling prescriptions for birth control or the morning after pill. County clerks are refusing to grant marriage licenses to same sex couples and many businesses are denying service to gay customers.

      The Supreme Court itself is fickle on the matter, declaring the legality of same sex marriage while granting corporations the right to deny offering birth control coverage to female employees because it ostensibly denies First Amendment rights to corporations in their standing as "persons".

      CA has the reasonable accommodation version of the religious statute but it didn't prevent the legal and ethical debacle of the McMath case. In the ongoing brain death disputes playing out now across several states, including the McMath case, the main objections to the discontinuation of mechanical support are due to the personal belief of the respective families that their loved ones are not dead.

      Delete
    13. @ Anon. 15:16 - Excellent point. None of the actual religions that Prof. Pope mentions actually *suggest* that it is appropriate for society to indefinitely maintain physical bodies that have been rendered non-functional by irreversible brain damage. The "accommodation" was intended to support families who hold forth the traditional belief that death happens when the heart stops beating on its own. As he cites, this *will* happen within a relatively short period of time, even with a body on vent support, *if* no other medical support is administered. So, the heart will stop beating as the body shuts down naturally, and the family can then accept their loved one's passing.

      Refusal to accept physical death is *not* a part of *any* religion's doctrines, for obvious reasons...it's an inevitable aspect of the human condition! In fact, if we want to generally define "religion" as the practice of a particular organized faith tradition, we see that all religions have developed some beliefs and traditions that *deal* with physical mortality, in terms of recognizing the fact that the body ceases to function at some point in time, so the spirit leaves it. Religions have also developed various traditions that help survivors accept and adjust to this inevitable process.

      It's significant to note that, far as I can recall, we have *not* seen anyone come forward, in either the Jahi McMath case or any of the other similar legal disputes that are current or recent, who's spoken out as a *religious* representative of a family's interest. We don't see anyone claiming to be either the family's personal spiritual advisor (pastor, minister, rabbi, imam, etc.) or a recognized representative of their respective denomination's larger organization speaking out to advocate in support of the positions taken by families in denial.


      Delete
  23. If it became conscious, would it qualify as a person?

    http://www.msn.com/en-us/news/technology/first-almost-fully-formed-human-brain-grown-in-lab-researchers-claim/ar-CCU8K

    "The ethical concerns were non-existent, said Anand. “We don’t have any sensory stimuli entering the brain. This brain is not thinking in any way.”

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    1. since they say it is not thinking in any way I have a person in mind it could be.

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    2. According to the article, the miniature brain is said to resemble that of a five-week-old fetus. So, it's definitely immature!

      Delete
    3. Am I the only one who got the impression that the researchers are alluding to the possibility that sentience isn't out of the question if they provide sensory stimuli?

      Thus far, they say the main focus of their research is mapping how different diseases and disorders of consciousness affect the brain. If it is possible to eventually grow a brain that can think that would open a whole new can of ethical worms.

      Delete
  24. Dr. Pope had a link to a very lengthy but informative article about the complexities involved in the McMath case. The author of the article, John M. Luce, made some incorrect statements regarding New York's brain death statute. In his response, Dr. Pope clarified New York's law and also offered his opinion regarding the religious accommodation in the second link.

    Both are very informative. According to Luce, Jahi's family was approached by the Northern California Transplant Donor Network regarding the donation of Jahi's organs. In the lawsuit it was alleged that CHO hospital officials hounded them in that regard:

    http://journal.publications.chestnet.org/article.aspx?articleid=2211919

    http://journal.publications.chestnet.org/article.aspx?articleID=2411763

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  25. Professor Pope has 2 more cases on his blog. The one in NJ mentioned by Anon 15:07 and one of a girl who died in April and is still maintained in Nevada.

    As feared, the fact that the scam fam has gotten away with this for so long is prompting others to do the same. There really is not enough information to know if they are doing it for money like Jahi's family is, or if it is all about not wanting to let go, but either way this is a situation that we heard very little about before Jahi, and now two more in a short span of time.

    This case, if it isn't ended and Jahi laid to rest, is going to have one of two horrific outcomes for society. Either we are going to pay millions of dollars annually to keep a slew of corpses artificially animated on vents, or the medical profession is going to get 'vent shy' and people who could be given a chance at life (real life) are going to be denied mechanical ventilation because of fear that we are going to create a whole race of Jahis. Not sure which is worse, but Grillo opened the door to something much more ominous and far reaching than just this case and if Freedman doesn't put a stop to it, it's gonna get real murky out there!!

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    1. I totally agree. As Eleanor posted previously, it's not as if this was happening in a vacuum. Other families besides Jahi's have been confronted with the same situation in the past, are dealing with it today, and will be faced with it in the future.

      I can't help but wonder if the distress that both Aden's family and Mikey's family are surely feeling, facing the unexpected loss of a beloved child, hasn't been made *worse* by the legal battles still unresolved in the Jahi McMath case. Are they *afraid* to let go, thinking that perhaps if they *don't* challenge the medical determination of death, they might be guilty of "giving up too soon," and *not* doing everything legally and emotionally possible to protect the rights, and lives, of their children? And, what about other families dealing with this same situation privately, who haven't shared their situation with the media? Will they have the same fear? Will those who have already *made* the decision to let go be less comfortable with that choice, feeling that they didn't wait long enough? You are totally correct...this whole situation is much more far-reaching than indulging the personal preferences of just one family. Matters of life and death affect ALL of us.

      Delete
  26. Professor Pope has an awesome blog. I read his everyday as well as Doc's. It is certainly the place to go regarding medical futility issues.

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  27. Re DocBastard's comment on 08-17-15 at 04:32:

    The law may specify complete cessation of all brain function. But the UDDA and California law clearly delegate to the medical profession on how exactly that will be measured and ascertained.

    The custom and standard of practice is to NOT require zero neuron action. So, as a pure legal argument, there is no room to say she is not REALLY dead under 7180.

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    1. That certainly makes sense. Thanks very much for clarifying, Prof Pope.

      Delete
  28. Re Anonymous 08-18-15 at 18:10:

    It seems very unlikely NJ Medicaid ever made any life-death determination as an element of determining benefits eligibility. If this ever gets analyzed by a NJ agency or court, it will probably be on the back end if the family is prosecuted for Medicaid fraud.

    Sadly, NJ Medicaid pays for health benefits for hundreds of dead people. Here, at least the family has a "good faith" belief that she is not dead.

    ReplyDelete
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    1. "Sadly, NJ Medicaid pays for health benefits for hundreds of dead people."

      I'm saddened and very angry to read this because it means that there is a lot of money that isn't being spent on people who are not dead, for all sorts of things.

      Delete
    2. In fairness, NJ isn't the only state in which public benefits (Medicaid, Medicare, Social Security) get paid on behalf of deceased persons. Sometimes this is intentional fraud, on the part of service providers who continue to bill for services and collect for reimbursements as long as possible, or families who fail to report a death so they can continue to deposit and spend SS pension checks. Sometimes it's just a result of clerical errors due to miscoordination of information. Whatever the case, the fact is that the public agencies just don't have sufficient staff resources to effectively monitor each and every case, so payments sometimes get made when they shouldn't be.

      As Prof. Pope says, at least in this case, there *are* some "medical services" actually being provided, even though most of us who read here consider them futile.

      Delete
  29. Hundreds of dead people receiving Medicaid in New Jersey? Supposedly just 1% of deaths are declared using neurological criteria so I wonder how many of those are from out of state.

    If Jahi's status as a deceased person is upheld and the lawsuit goes forward as a wrongful death case, would this effect her eligibility in New Jersey or doesn't that even matter in regards to Medicaid?

    The lawsuit is on hold until it is determined whether Jahi is alive or dead. If Judge Freedman rules against plaintiff's there will surely be an appeal. How many appeals does one get? Could this conceivably go all the way to the Supreme Court?

    I guess we needn't worry about Congress getting involved as they did in the Schiavo case because there's no imminent threat that Jahi's mechanical support will be removed.

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  30. Theoretically, anyone can *request* that a matter be considered by an appellate court. But whether or not that court decides to review the case is a matter left to its own legal discretion.

    Appellate courts don't actually revisit the *factual* issues of the case, as happens in the trial court with the arguments by plaintiff and defendant, presentation of evidence and testimony of witnesses, and such. The role of the appellate court is only to determine whether or not the trial court had sufficient evidence to support its decision, and/or whether or not the trial court correctly applied the law and followed proper legal procedures.

    Right now, it's hard to speculate on what possible grounds the plaintiffs would have for an appeal. Their *legal* position is trying to prove that Jahi no longer meets the criteria for DDNC. But unless they can produce credible evidence to support that position, the court will not see fit to rule in their favor, since the DDNC has been made in accordance with existing state law. What they're *really* trying to do, IMHO, is get the court to agree that "brain death" isn't "real death" because a number of Jahi's body's functions have been medically-maintained without benefit of a working brain system.

    Problem is, neither the district court nor any appellate court is the place to actually change a law. Revisiting the whole concept of determination of death by neurological criteria may indeed be a worthwhile endeavor, but would require the involvement of several different disciplines within the medical community, and the state legislature to actually hear their testimony and act upon it. An appeals court won't set aside existing law just to accommodate the personal preferences of one family.

    And, as you mentioned in your reference to the Schiavo case, there's no issue of *any* legal ruling on this matter being a functional "death sentence.":
    Jahi is already considered legally deceased in the state of California, as determined by state law in that jurisdiction. Can't kill someone who's already dead. Still, that status has not prevented the family from exercising their preference to consider Jahi alive and to continue the provision of medical maintenance to the body....in another state.

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    1. This comment has been removed by a blog administrator.

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  31. The father of Aden Hailu has used the death sentence argument to force St. Mary's into maintaining her on a vent in an ICU bed for almost 5 months now while their appeal is being heard. They haven't been able to transfer her since they can't find a willing doctor or facility.

    I agree with your opinion regarding the real motivation in the McMath case. What they're attempting would involve changing existing legislation or at least getting the court to allow different criteria to prove Jahi is "alive".

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    1. Five months in ICU. Anyone want to guess what the cost is for that? Not to be mercenary here but healthcare resources do not grow on trees. I can't tell you how often our facility has to go on divert because we have no unit beds. Futile care has gotten out of hand. Trying to be politically correct and not hurt anyone's feelings by forcing them to deal with the reality of death has become health care's version of the emporer's new clothes. The law is clear. The medical consensus is clear. Yet these circuses continue.

      Delete
    2. Eleanor, I just read that the appeal to Nevada's Supreme Court could take 5-6 months. That's in addition to the time Ms. Hailu's body has already spent in legal limbo. One year in an ICU bed?

      I'm surprised she has lasted this long without a tracheostomy or gastrostomy. Aren't long term vent patients susceptible to all sorts of respiratory infections? Without a gastric tube how long can someone last on whatever fluids one gets in the ICU?

      I also just read another of Paul Byrne's declarations regarding brain death and it brings to mind this:

      What you've just written is one of the most insanely idiotic things I have ever read. At no point in your rambling, incoherent discourse were you even close to anything that could be considered a rational thought. Everyone who has ever read your opinion on brain death is now dumber for having read it.

      I'm not sure where this originated and I took some liberties with the wording but to its author I say, thank you for your insight.

      Delete
  32. It will be interesting to see how the Nevada appeal turns out. The argument, as I understand it, is based on the allegation that the lower court did not properly exercise its responsibility to be fair, and gave more credence to the hospital's evidence than it did to the plaintiff's.

    Well....yeah.

    The hospital presented *medical* evidence to support its position that Aden is brain dead and therefore cannot benefit from additional futile medical treatment. The plaintiff's medical evidence to refute this was...wait for it...the opinion of Dr. Paul Byrne. Same old stuff...Aden just can't really be "dead" because heart is still beating, air is going in and out of the lungs, there's bladder and bowel output, her skin looks so nice, etc. etc. etc. Again, not medically credible because it does nothing more than demonstrate the fact that Dr. Byrne doesn't seem to understand how vent support works.

    And, as you stated, the family has been given more than ample opportunity, by both the lower court and the hospital itself, to *find* a doctor and facility that *would* agree to provide continuing care. But that hasn't happened. They did find one doctor who would agree to perform the tracheostomy, and Byrne came up with a "treatment plan" that would involve the administration of various hormones to replace the absent brain functions and allow "healing" (which was interesting to me, since I wondered if it's the same "recipe" being used to maintain Jahi's body). But the court didn't approve it because there's no medical basis for assuming that it would be beneficial to Aden's condition. It won't "repair" the brain damage. .

    And, without the other surgical procedure (insertion of feeding tube) needed for long-term care, or even a medically-feasible long-term-care plan, nothing is going to happen anyway. Apparently the family *did* find another hospital (St. Rose) that was willing to accept Aden on a very temporary basis, to heal from the trach and gastric surgical procedures, but the deal was conditional on having the long-term plan in place, including transfer to either another facility or home care. Obviously, *they* didn't want to be stuck dealing with this situation indefinitely.

    This case is a bit different than the McMath case, since, far as I can tell, while it's been determined that Aden does meet the medical criteria for DDNC, there hasn't yet been an official declaration of death, or issuance of a death certificate. So, removal of the vent and the IV that is apparently supplying some nutrition and fluid *would* have the effect of causing all the body systems to shut down.

    ReplyDelete
  33. Was that info regarding the other hospital in the court documents? I must have missed that. You make an interesting point regarding Byrne's "treatment plan". I knew he wanted St. Mary's to incorporate 33 different "therapies" into Ms. Hailu's care but I didn't make the connection to Jahi's case. Since he was involved with her case from the beginning and was the last person to post a picture of her, it's conceivable he recommended a similar treatment plan.

    Did you say something before about it being documented that Jahi was receiving some sort of hormone treatments? I remember her mother talking about vitamins and even posting several pictures of them, but I don't recall her ever mentioning hormones.

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    1. I didn't save all the info from the Instagram page that has since been taken down, and couldn't find it among the postings that *did* get saved by another reader following the story. IIRC, it was a rather confused posting in which Nailah at once said that Jahi was no longer hooked up to any tubes, but then also said that Jahi was doing much better now that she was getting IV medicines to help with her body temperature, metabolism, and such. This was during the time right at the beginning of 2015 when we knew that the family had moved Jahi to NJ, but before we found out it was St. Peter's.

      But here's a link to an article in which Dolan mentions that hormones were included in the treatment plan:

      http://articles.latimes.com/2014/jan/06/local/la-me-ln-jahi-mcmath-transfer-brain-dead-20140106

      "Jahi McMath, the 13-year-old girl declared brain-dead last month after undergoing a complex tonsillectomy, is being given nutritional support, hormones and antibiotics to combat infections that grew as she “wasted away” at an Oakland hospital, the family’s attorney said Monday."

      This would have been right *after* the time of the transfer.

      Delete
    2. Sorry, forgot to respond to the other question about the transfer plan for Aden Hailu. It's on Prof. Pope's site among the other court documents, in the notes from the July 21 continued emergency hearing. The hospital mentioned is St. Rose in Las Vegas, in Dr. Manthei's testimony. He says, "the hospital wants to make sure there is a placement secured for long
      term care after Ms. Hailu recovers from the surgical procedures. There has not been attempts to secure the second placement."

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    3. Good catch and good memory Scarab! Perhaps Dolan forgot he said this and the new legal team is probably hoping everyone else did as well. Hopefully the attorneys for the defense have people researching and archiving past statements made by both Dolan and the family. Since there have been so many discrepancies it calls into question the veracity of their allegations.

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    4. I'm sure there is also information in the medical records at St. Peter's, related to the medications were being provided during the time there.

      While the somatic maintenance administered at St. Peter's and afterward wouldn't ordinarily be an item of interest related to CHO's med mal defense, it may indeed be of interest to the court, related to the "dead-or-alive" determination for Jahi. Since the plaintiffs are basing a major portion of their argument on the theory that Jahi's brain can't be totally nonfunctional because there is evidence of some body temp regulation, metabolic function, digestion, sexual maturation, etc., it's important to consider the possibility that hormone replacement therapy, rather than just hormones produced naturally by the brain, might be the cause of these functions.

      Delete
  34. New link from Professor Pope. The article focuses on Jahi's case and its implications going forward:

    http://www.healthline.com/health-news/the-changing-definition-of-what-is-brain-dead-082715

    As Prof. Pope indicates, there are several inaccuracies regarding her case stated by the author but it's still an interesting read.

    Dolan says that Jahi doesn't fit the criteria for any of the current categories involving altered consciousness. He says she is no longer brain dead but she's not in a PVS, a minimally conscious state nor does she suffer from locked-in-syndrome.
    Dolan also offers this astounding comment:

    "He reports that Machado is working on a paper, to be published before the end of the year, which will propose a new category of consciousness to describe Jahi’s as-yet-unseen circumstances."

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    1. Yeah...but...this "new category of consciousness" theory may be based only on what both Dolan and Machado have been *told* by the family, in relation to what they're reporting as "responsiveness."

      Machado has already noted in his letter of opinion submitted to the court that he has not examined Jahi in person, since he is not licensed to practice in the USA, and that his opinion that Jahi no longer meets the criteria for brain death is based only on the reports he's reviewed.

      Delete
  35. Update on the Aden Hailu case - Prof. Pope has now posted the opening merits brief filed by the appellant with the Nevada Supreme Court on Friday.

    http://www.thaddeuspope.com/images/15-26156.pdf

    As expected, there's the usual objection related to interpretation of the term "all" in the UDDA definition of brain death as "irreversible cessation of *all* brain function."

    More specifically, there's an objection to the lower court's acceptance of the fact that the St. Mary's doctors stated that their determination of brain death was based on generally-accepted medical standards established by the American Academy of Neurologists. Appellants maintain that one *particular* set of medical standards should not be accepted by the court as "law," in terms of interpreting the UDDA, since case law in different states has used different standards and led to different interpretations.

    Again, this comes back to the debate about what defines "cessation of *all* brain *functions* when the brain *as a whole* is damaged beyond recovery.

    The relief sought here is defined as preventing St. Mary's from discontinuing life-support care, by requiring Aden to be treated as a living person. Since this is just the first brief, that supportive care isn't yet fully-defined. For now, obviously the family wants to prevent the shutoff of the ventilator and whatever IV fluid is being administered for general hydration and minimal nutrition. For the longer term, I think it's reasonable to assume that they will want the full level of care that they apparently haven't been able to arrange elsewhere (tracheostomy and gastrostomy procedures, plus the feeding and other medical support required for full-body maintenance, probably including Dr. Byrne's "treatment plan").

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  36. Does anyone know if the judge is this case has some sort of time limit to let this sit open? I would have expected him to have asked for the plaintiffs to prove they have any medically accepted evidence by now.

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    1. Actually, in his "tentative ruling on the demurrer." Judge Freedman *did* ask the plaintiffs for several items of additional information. One of these was additional evidence related to their claim of "new facts and circumstances" that would warrant re-evaluation of Jahi's status as dead. That would be the medical evidence.

      Related to this was his request that plaintiffs present more information to justify their position that collateral estoppel does not apply in this case (why they believe that this issue should be re-litigated, when, in fact, the determination of death has already been made by the court).

      We haven't yet seen any officially-published court documents related to any responses.

      What is odd, IMHO, is that in his case management statement, Brusavitch wrote, "The parties contend that this is a complex matter that is unlikely to be ready for trial within 12 months." If there's already plenty of medical evidence to support these "new facts and circumstances" related to Jahi's improved physical condition, why would it take more than another *year* to get the case ready for trial?

      Delete
    2. @Scarab - wait a minute. Jahi McMath was declared dead LONG ago. Her family's legal and medical team are the ones trumpeting their 'findings' of signs of brain activity to the news. Why would they be granted 12 additional months to prepare their case for trial? Why would someone ask for an appeal, citing new evidence, and then as that it be put it off for 12 months? That's kind of crazy, in my opinion. Not that I'm an attorney.

      To me, it's like writing and submitting a paper to scientific journal and telling them that you want the paper reviewed and published now, but the results are pending.

      Does. Not. Compute.

      Wednesday

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    3. Especially when the new evidence is more than a year old at this point. Plaintiff's attorneys hope to present the same evidence that was rejected in 2014.

      Attorney Chang told Judge Freedman that he would present this evidence in due time. Nothing can go forward until the judge rules on the collateral estoppel and res judicata issues, which he has taken under submission. If he uses up the entire 90 days and then some, not counting holidays and weekends, it could conceivably be December before that ruling is made.

      If he rules that the matter of Jahi being alive or dead can be re-litigated, by the time they have evidentiary hearings it will be into 2016. The evidence will be two years old by spring of that year.

      Considering the possible ramifications this case could have on how death is determined in the US, nothing less than new tests, carried out by independent doctors in a licensed medical facility, should even be admitted into evidence.

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    4. @ Anon. 8 Sept.15:38 - I totally agree that the judge shouldn't consider any information presented as "real medical evidence" unless it's not only current, but represents the results of generally-accepted medical tests appropriate for the matter at hand, done by licensed and qualified independent medical professionals in a licensed facility.

      But...unless I misunderstood Judge Freedman's position, as represented in his tentative ruling statement, I don't believe he's inclined to set aside the collateral estoppel and res judicata issues, and *allow* the death determination to be reconsidered, *unless* the plaintiffs present at least *some* evidence of this alleged "change" in Jahi's condition that would *justify* revisiting the issue. He's already stated that the various case law citations they've submitted related to changes in circumstances are not relevant to this particular situation.

      Unless the plaintiffs can present *something* to the judge that will convince him that a reconsideration is warranted, I don't see how the case can proceed.

      Delete
    5. I don't see under what precedent Freedman could permit the matter of Jahi's death to be re-litigated. Dolan had a chance to present new evidence last fall and it failed to dissuade the court's expert witness. He had a chance to appeal and didn't do so. He presented his evidence to the CA Department of Health and the CA Attorney General to no avail. Excuse the pun, but that matter has been litigated to death.

      Just as in the Hailu case, court is not the proper venue to seek a change in legislation regarding brain death and the criteria used to determine it. If plaintiffs have a problem with the law they should take it up with the CA legislature.

      I'm pretty sure Judge Freedman is going to take this to the wire. He initially said he was going to issue his ruling "soon" but that ship has sailed. In his tentative ruling he was inclined to agree that the legal standard of collateral estoppel and res judicata was met. Plaintiff's attorney expects him to decline the defendants' demurrers without seeing any of this "new" evidence.

      Freedman asked when the evidence would be presented and Chang said in due time. The judge should've said, "WTAF?"

      Delete
  37. In CA judges have 90 days when they take something under submission but this particular judge has a history of taking much longer.

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  38. The Michael LaVecchia case is in the news again. His mother is trying to raise money to fly in a foreign expert to evaluate him, no doubt the Cuban doctor Machado. She wants her son to be examined by doctors who have "differing opinions" regarding brain death. Not surprisingly, IBRF is also involved. Has Byrne jumped on this case yet?

    http://www.northjersey.com/news/mother-of-boy-declared-brain-dead-after-route-80-crash-says-he-s-still-showing-signs-of-life-1.1403496

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  39. I saw that article the other day too, and immediately thought of Dr. Machado, remembering that Dolan mentioned the forthcoming publication about some "alternative" state of being that wasn't brain death, but wasn't coma, PVS, or any other currently-identified condition either. I guess Mikey will be another "research project" for him, and for the IBRF. :(

    Haven't yet seen any specific mention of Byrne's involvement, but "yet" is, of course the operative word here... he's probably just busy right now with the Nevada Supreme Court appeal case related to Aden Hailu. The fact that Mikey's mother currently has him located in a NJ hospital would make it convenient for Dr. Byrne to pay a visit, next time he's out that way to check on Jahi...

    Actually, I'm curious as to how things will work out, legally and ethically, if Dr. Machado, or any other doctor from somewhere outside the state of NJ, actually *does* come to evaluate Mikey. Mikey's mother said that the staff at Robert Wood Johnson Hospital has been wonderfully supportive, and said they have no problem with other consulting physicians being brought in. But I wonder if someone from outside the state, and even from outside the country, would actually be allowed to do a physical examination, perform medical procedures and tests, and perhaps prescribe treatments.

    Dr. Machado stated in his letter of opinion that was submitted to the court last year, related to Dolan's attempt to get Jahi's legal death declaration reversed, that he had not actually examined Jahi because he is not licensed to practice medicine in the USA.

    And, remember Dr. Paul Byrne's appeal for "volunteers" who were licensed doctors in Nevada to help out with Aden Hailu's situation. (The staff at St. Mary's said they'd be OK with letting another physician of the family's choice use their hospital's services to perform the procedures the family wanted, IF that doctor was licensed in the state, and met their criteria for medical residency status).

    So, I'm wondering if Robert Wood Hospital's administration will be OK with the family bringing in a specialist who isn't licensed in the state, or even in the USA, to actually do a meaningful examination and evaluation on someone who's currently their patient.

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  40. Good point. I wonder if Mikey's mother is even aware of this. Why waste time with a foreign doctor who can't perform the procedures she wants done and can't admit her son into a long term care facility. Her son is already in NJ which is half the battle. She should be focusing on a doctor who is licensed to practice in the US. The article said that as of now insurance was still covering her son's care. Robert Wood doesn't seem to be in any hurry to transfer him so as long as the boy isn't officially declared dead his insurance can't deny treatment. I would think at some point the coverage will cap out and NJ Medicaid will take over.

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  41. And, as we've already seen in Jahi's case, the fact that there's a financial resource in place to pay for medical care doesn't automatically oblige any particular facility to *provide* the care that a patient, or patient's family, wants. Every patient in a hospital, or in any other type of health care facility, must officially be assigned to a licensed doctor associated with the establishment. *Someone* has to develop and oversee whatever care plan is implemented by the rest of the staff.

    Upon Mikey's admission to Robert Wood Johnson Hospital, he became "Dr. RWJ's patient." (Not his/her real name - as our Doc Bastard would say!) So, maybe if Dr. RWJ feels OK about consulting with Dr. Visitor (again, not his/her real name - since we don't know for sure that it's Dr. Machado), and thinks that some testing and procedures recommended by Dr. Visitor might indeed be useful, perhaps Dr. RWJ would write the orders and have these things done by hospital staff.

    But I'm guessing that such agreement would be contingent on what those tests and procedures actually end up to *be.* If Dr. Visitor recommends some things that are outside of what is typically considered medically appropriate or relevant to Mikey's condition, Dr. RWJ might not agree.

    It's generally true that the larger university hospitals are more receptive than the smaller community-based facilities to considering innovative treatments, clinical trials, and such, in the interest of academic research. That may be the reason that Mikey's mom feels the staff at RWJH is supportive of her identifying other specialists to consult on the case. Still, if whatever the IBRF might end up recommending is "way out there," in terms of raising serious questions about its medical value or even being in the best interests of the patient, it may not be considered acceptable in a licensed hospital.

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    1. If a physician isn't licensed to practice in the US, would that physician be permitted to physically examine a patient? I truly don't know, that's not a mean-spirited question. There are liabilities to the hospital though, if an unlicensed physician examines a patient, right? Or a licensed physician but not recognized in the US.

      I could entertain a physician suggesting tests, which may then be ordered by her attending physician. Even there, this is going to cost somebody money and someone will have to justify it.

      Very sad.

      Wednesday

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  42. Isn't it kind of ironic that the Catholic hospital was eager to transfer the boy and the secular hospital was on board with accepting him? I'm kind of surprised considering they most likely committed themselves to a long drawn out McMath-type situation. LaVecchia's mother strikes me as being very much like Nailah Winkfield in that she's only interested in seeking out doctors who tell her what she wants to hear. Like Winkfield she will never accept that her son is brain dead.

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    1. Unlike Nailah Winkfield, she's not looking to use her son's body as a fundraiser. She's lost more people in one day than Nailah did. She may be misguided or even foolish (MAY BE), but it doesn't appear that she and her remaining family are regarding her son as being their golden ticket.

      Wednesday

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  43. I meant she is like Nailah only in the way I mentioned. She wants to engage doctors who have differing opinions regarding brain death, meaning doctors who don't accept it as true death.

    Nailah is certainly in a class by herself. I recently read an essay written by a man who had an 11 month old son in PICU for many months due to a TBI. He went into great depth regarding the atmosphere in a PICU and how even lost in your own grief you are respectful of the other parents going through their own hell. To think how Nailah and her family acted, being purposefully disruptive in some misguided attempt to extract revenge on the staff of CHO defies explanation or justification.

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    1. Oh, I get it now. Yes, that makes sense.

      Is the essay online and do you happen to have a link? I'd like to read it plus for those who haven't spent any time at all in a PICU it may help underscore just how selfish and inconsiderately Nailah and her family behaved. Just in case those who do support her beliefs aren't aware of how disruptive they were and its effects on other families.

      Wednesday

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    2. Here's the link:

      http://mom.me/baby/22018-life-picu-through-eyes-father/

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  45. I truly would not want to be in Nailah's position of losing a child like this and sure I would always want to hold out for hope, but come on, look how long this has been going on. She's not "recovering" or "healing" and sooner or later logic and common sense would tell you it's time to let go. I am sure there are people that look at us logical thinkers like we are hate mongering folks who have no soul and wish this "living" girl be "put to death". That's not what it is at all. She was declared dead and should be allowed to rest in peace, she's gone plain and simple. And couple that with the fact that Nailah has spent people's hard earned money for the GoFundMe account on her own excesses - this screams of scam in my book. And now the claim of being "alive" and "healing" in hopes of millions of dollars in rewards because the wrongful death $250,000 is "chump change", how do you expect us to react? It's outrageous that the judge doesn't see all of this.

    I would almost wager a bet that *if* the judge were able to somehow "reverse" the death certificate and a payout is made, Jahi would mysteriously succumb to something or another...

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    2. I think the family would fall short of Jahi mysteriously succumbing anytime soon. But if there was a BIG payout (lump sum), I wouldn't be surprised if a sizable portions (say, 30%) were spent on items that had nothing to do with continuing to maintain Jahi's body. But remember if she is declared alive ("alive") by the judge, then the state and medicaid (would they qualify for medicaid if they were awarded a large sum of money?) or medicare would pay for the medical costs associated with maintaining the body.

      The donations would probably come to a screeching halt if the family won their case and were awarded a large settlement. After all, why should people dig into their own pockets when the family was given a lot of money?

      That poor child. She's long gone and her family won't acknowledge it. I suspect there are deluded family members and scheming ones. I feel badly for the ones who simply can't believe it. I still want to shake some sense into them, but I know it's not possible.

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    3. Any settlement will be confidential and neither side will be able to disclose it to the public. Both Medicare and Medicaid institute liens for providing coverage, so they will have to be paid out of the settlement. In any event, I can't see either CHO or Rosen agreeing to settle for any amount at this stage of the game. Judge Freedman still has to rule on the dumurrers and plaintiffs need to present their medical evidence.

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    4. Agreed. Right now, nothing *can* be settled until the court determines whether this case will proceed as a personal injury case or a wrongful death case. Though the plaintiffs have made it clear that *they* want to proceed as though Jahi is still alive but permanently and severely disabled, the fact that their pleading presented both scenarios, and the fact that Jahi's declaration of death was not just a medical determination, but was previously affirmed by the court, require that Judge Freedman first has to address and resolve the "dead or alive" issue. He's already made it clear to the plaintiffs that he's not willing to re-litigate this *unless* they have some very compelling new evidence that would warrant such reconsideration.

      Based on the case management document that Brusavitch filed, I don't believe he's anticipating any possibility of settlement. The filing demands a jury trial, and states that the case will not be ready for trial for probably a year or more, since it's "complicated."

      This article presents, IMHO, a pretty good summary of how jury involvement affects a personal injury case.

      http://www.alllaw.com/articles/nolo/personal-injury/how-jury-calculates-award.html

      Again, just my speculation...but could be he's counting on some of the "emotional appeal to the jury" dynamics balancing out what might be lack of substance or actual relevance in whatever medical evidence gets presented.

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    5. I worked in the medical malpractice field for several years. Virtually all plaintiffs demand a jury trial. That's just standard operating procedure. Only a small percentage of these cases are tried to verdict. However, because this case is so unusual and unprecedented, it's anyone's guess what will happen. The family is obligated to go through arbitration first because Ms. Winkfield would have signed an agreement upon Jahi's admission to CHO. Also, judges always order the parties to engage in settlement talks before trial, at least in California.

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    6. That makes sense....for the normal cases in which the plaintiff's claim is, at least, based on an *argument* that both parties, and any mediator or arbitrator who facilitates any discussions, can understand. Right now, it's not even clear if the defendants are supposed to respond to a a wrongful death claim, or to a claim of a surviving patient who is seeking financial compensation resulting from a catastrophic disability, Until the judge rules on whether or not the "dead or alive" issue should be reconsidered by the court, there's really nothing to talk about in the way of a settlement.

      Hoping you or others with some legal background can give an opinion on a related matter....is this most recent Jahi McMath case *really* still a medical malpractice case? Sure, it started out that way, with the family claiming that the CHO's medical staff "did some things wrong," and that if the situation had been handled differently, Jahi might have had a successful recovery, But it *now* seems that the plaintiffs have shifted their focus to a *different* issue, which is their disagreement with the established medical criteria used by the state of California used to determine DDNC. IMHO, that seems more like a legislative debate than a med mal suit.

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    7. The recent Jahi McMath case is pled "in the alternative" which is legal. Alternative pleading allows McMath to make inconsistent claims of medical malpractice and, in the alternative, wrongful death. The court cannot compel McMath to choose one or other other. But... Brusavich is faced with the rather daunting task of providing witness testimony (affidavits, etc.) that isn't going to contradict itself or backtrack or lack credibility because the same witness may have to testify differently. As to Scarab's specific question, I'm unsure there is a different focus now. The most recent motions, centering around the demurrer filed by the hospital/doctor, question whether its appropriate for this court to relitigate/reargue/resurrect the previous court's finding that Jahi is legally dead. As you know, some may "feel" with their moral or religious or personal conviction that Jahi isn't dead; however, she was already found legally dead in California. Courts cannot "undo the bell that has rung" and ignore the earlier ruling. Only an appeal filed in the Appellate Court can challenge that earlier finding. This is not an appeal filed, this is a lawsuit filed. "Undoing the bell that has rung" is prohibited by the rule of legal practice called collateral estoppel. Whether or not Jahi's family is "estopped" from trying to "undo the bell that has already rung" is the question currently being mulled over by Judge Freedman. I hope this makes sense. Jahi's family can't even discuss established medical criteria because they appear to be "estopped" from re-litigating the same set of facts regarding the same issue for which the bell has already rung (Jahi declared legally dead). In order to tackle the question of established medical criteria, Brusavich first must prove the family isn't trying to re-litigate the same question of whether or not Jahi is legally dead.

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  47. Trial judges don't decide in a vacuum either. Freedman has to determine whether the evidence presented by the McMath family is sufficient to sue the hospital for negligence, infliction of emotional distress, or wrongful death. Judge Freedman is bound by the facts as alleged in the complaint. In other words, he must make his decision accepting everything the family claims as true. "A demurrer raises no question of fact and assumes the correctness and truth of the facts alleged in the pleading to which the demurrer is interposed, and on the hearing of a demurrer the court is bound by the facts as alleged in the pleading and may consider only such facts together with facts of which the court takes judicial notice." (Griffin v. County of Colusa, 44 Cal. App. 2d 915, 918 [113 P.2d 270]; Mackay v. Clark Rig Bldg. Co., 5 Cal. App. 2d 44, 54 [42 P.2d 341]; Sheehan v. Vedder, 108 Cal. App. 419, 426 [292 P. 175].) The hospital and Dr Rosen are basically saying the family's evidence just doesn't add up to a legal case against them. “Demurrer to the evidence is “an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence is merely required to ascertain whether there is competent or sufficient evidence [to make out a prima facie case].. Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. http://thelawyerspost.net/criminal-procedure-demurrer-evidence/
    So, the McMath family has to come up with sufficient evidence in character, weight or amount, enough to prove to Judge Freedman that they have a case against the hospital and Dr. Rosen on at least one of the three grounds ( negligence, infliction of emotional distress, wrongful death). For the wrongful death count, the family says the death certificate is NOT prima facie evidence of death. So it will be interesting to see how much credence and weight Judge Freedman will give to the various doctors.

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    1. It sounds as though Judge Freeman also has to decide how much credence to give to the various doctors, too. Is that correct?

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    2. Yes, but the plaintiffs will have to produce compelling evidence from credible neurologists this time around. Dolan's experts didn't examine Jahi and their reviews of her records and brain scan weren't accepted by Grillo's court via Dr. Fisher's report. Fisher is an actual pediatric neurologist affiliated with Stanford. Brusavich is going to need someone of that caliber to refute Fisher and the CHO neurologists who declared Jahi to be brain dead.

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    4. For Dr. Byrne to testify, there still needs to be an evidentiary basis for his testimony, typically based on principles that are generally accepted by the scientific community [Frye case]. As cleopatra knows, California has extended Frye. A scientific technique can be accepted as a matter of law when an appellate court previously accepted that particular science [Doolin case]. Also, in that Doolin case, California leaves open the possibility of a change in the "attitude of the scientific community", [quoting Kelly case]. When i looked today at the tentative rulings of July 30, Judge Freedman asked for more clarification to help him decide collateral estoppel, Estoppel is kind of like double jeopardy, where you can't go back to court for the same thing over and over again if a judge already decided it. The hospital says the court already decided Jahi was legally dead and issued a death certificate. Currently, the mother claims there are new and different circumstances so she wants another bite at the apple. The judge asked for more info from the mother why this is different ....why this doesn't involve 'identical factual allegations'. This requires Jahi's mother and her lawyers to produce some evidence, beyond pure speculation, of a fact that is now changed. Beyond pure speculation is where Dr. Byrne and the suspended or non U.S. physicians enter. But does it rise to the level of scientifically accepted in the community? Or was it already decided previously by an appellate court? No to neither. Byrne's proffered evidence has to address a factual nexus not already decided, but if you think about it, whether Jahi is dead was already argued. What new fact does Byrne or the suspended/foreign doctors want to talk about? The mother claimed in December of 2013 that she saw movement and that the apnea tests aren't sufficient. Those arguments aren't new so those won't fly. The only potentially new fact I can think of is the menache and other female changes claimed to be hypothalamic function. Firstly, the mother has to prove Jahi had a period (simply stating it isn't enough - a doctor would have to see it and I would require lab analysis). Secondly, the onset of menstruation (if it is in fact real) has to be supported by more than mere speculation. It is equally possible that the mother introduced growth hormones which brought on the claimed changes. Perhaps the doc can weigh in on this.

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    5. @Cin Dee & DocBastard - In order to make that argument, wouldn't she have to permit Jahi to have her blood tested over a period of time to demonstrate she's producing the hormones without intervention? Also, wouldn't the medical records show whether or not they were prescribed, by whom and for how long? Wednesday

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  48. Michael LaVecchia, the boy declared brain dead after he was in a car crash in August, has died in the NJ hospital where his mother had him moved when he exhibited what she saw as signs of life. http://www.northjersey.com/news/family-boy-on-life-support-after-route-80-crash-dies-1.1412338

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    1. At least now his parents can have some closure and peace. I wish Jahi's family could do the same.

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    2. Cleopatra, I was checking the register of action regarding the McMath lawsuit and there were two recent filings. On August 21st Brusavich filed a jury fee deposit and on September 9th Rosen's lawyer filed some kind of brief letter. What exactly is a jury fee deposit? The preview of the letter referred to the proceedings on July 30th and said something about an abundance of caution. Any idea what that might be about?

      Thanks!

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    3. Because Brusavich filed a separate demand for a jury trial (which is standard operating procedure), the jury fees deposit is due by a certain date according to CA statute. It doesn't mean much at this point, as the case is still in its early stages and any trial would be at least a year away. The letter filed by Rosen's atty was about the transcript from the July 30 demurrer hearing. His atty wanted to make certain that Judge Freedman received the complete transcript, so sent one to him. Again, nothing significant is going on.

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    4. What happens when the body fails after a patient has already been declared brain dead? If there was a dispute and the patient was kept on support measures does the hospital still have to call a code and try to resuscitate if the heart stops?

      The Michael La Vecchia case is unusual in that death was declared back in August and a death certificate was issued but the original was destroyed when his mother protested that he was still alive because he moved.

      Jahi McMath was declared dead back in December of 2013. Her mother also protested that Jahi was still alive because she moved but no one just tore her death certificate up.

      Both cases occurred in states that don't have the religious exemption, NY and CA respectively. No court compelled St.Joseph's to revoke the certificate.How unusual is it for a hospital to just tear up a death certificate at the family's request?

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    5. A death certificate was never previously issued for Michael. Hospitals do not issue them. They prepare a form with the pertinent information, which is then sent to the county health department/coroner. Death certs are then issued by the county or state. If anything was "torn up" it was the preliminary form.

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    6. SMH! In this case it stands for Smack My Head. I forgot that Jahi's death certificate was only certified by the coroner as a condition of her transfer from CHO.

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  49. I'm sorry that she lost her son. I'm 'glad' that his body has finally completely stopped, so she and her family no longer hold onto false hope.

    It's a shame that English lacks a word for parents who have had a child die. Does anyone know of a word, or phrase, that addresses the situation? I mean, in addition to 'tragic' and 'heartbreaking'?

    Wednesday

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    1. As Doc has also said, it brings us some relief to know that this family can now get some closure, move forward with their grieving process, and hopefully find some peace as they come to cherish the memories that will comfort them.

      Personally, I'm glad that they have been spared the *added* stress that may have occurred if they got caught up in believing that Mikey might "get better" if they continued to pretend that he was still "alive," and continued futile somatic support.

      We know that Mikey's mom Laureen had already been in dialogue with the IBRF, and was trying to raise money to have one of their "specialists" visit. But personally, I had another concern too...

      I noticed the pictures and reports of Laureen wearing rosary beads as she remained on vigil at the hospital. This suggested that she may have been raised in, or had come to adopt, the beliefs of Catholic Christianity.

      Yeah...I know the comment section of Doc's blog isn't for religious debates...but indulge me for a minute here...

      Fact is, today's *mainstream* Catholic Church does recognize DDNC as a medical determination of death. It also has no objection to organ donation, and, in fact, considers it an admirable act of charity for those who make this choice. IMHO, Laureen's initial response to the sudden tragic death of her son was responsible and admirable...she had originally accepted his death and consented to organ donation. I think she just got confused and distraught when she saw those reflex movements, so second-guessed herself and needed more time to figure things out and "be sure."

      But...I was afraid that Paul Byrne might get involved, and further mess with the minds and hearts of this loving mom, and Mikey's grandparents on both sides of the family, with his quasi-religious "still alive as long as the heart is beating and some bodily functions continue" reasoning, and try to convince them that the doctors just wanted to "kill" Mikey to harvest his organs. I'm SO glad this family was spared any additional distress, and hope that their faith will now bring them comfort instead of confusion.

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    2. Laureen is also a follower of Joel Osteen and his wife. She posts quotes from their ministry almost daily on her Facebook page. Osteen is a Protestant televangelist. I'm glad that Byrne didn't get involved in this case, too. He's a staunch Catholic (purportedly) who disregards the Catholic view of brain death. I hope that New Jersey's legislature will revisit their law regarding brain death, because the McMath case has opened the door to more of these types of cases ending up on perpetual somatic support in that state.

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    3. When Byrne testified in the Aden Hailu case he told the court that death occurs only after the soul leaves the body. No wonder he has no standing as an expert witness. The desperate family members who ask for his help in court sabotage their case the moment he opens his mouth.

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    4. I agree with all of the above, but I'm still wondering if there is a current or archaic word in English to describe a parent who has lost their child.

      In the meantime, I'm still sorry her son died. Admittedly, I viewed him as dead when he was declared brain dead and as someone whose body should be buried or cremated, but I still feel badly for his family and friends.

      I wish Byrne would dry up and blow away.

      Wednesday

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    5. @ Wednesday:

      There apparently is no English word to describe the situation of a bereaved parent, but the Sanskrit language has the word "vilomah."

      A Duke University professor, herself a bereaved parent, came across this word when looking for a term to describe this loss. Its usage seems to be spreading very gradually, through some bereavement support groups.

      Here is her article that began raising awareness of this word:

      https://today.duke.edu/2009/05/holloway_oped.html

      The word's literal meaning is "against the natural order," which relates to our expectation that the natural order for the human race is based on children *surviving* their parents, not *predeceasing* them.

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    6. Scarab - thank you very much! Wednesday

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    7. This is an interesting article once you overlook the fact that its author perpetuates the myth that Jahi had a simple tonsillectomy:

      http://www.northjersey.com/news/with-brain-death-doctors-and-families-struggle-to-define-when-the-fight-is-over-1.1435107

      It includes a much more detailed account of what finally convinced Mikey LaVecchia's mom to discontinue her son's somatic support. Turns out that the Cuban doctor, Calixto Machado, did come and evaluate the boy. He and Philip DeFina, of all people, convinced her that nothing more could be done for him.

      Another interesting quote from the article regarding the brain death disputes involving Jahi McMath and Michael LaVecchia:

      “None of these people are ever going to wake up,” said Dr. Michael E. Shapiro, surgical program director of New Jersey Medical School at Rutgers. “None of these people are ever going to breathe on their own. None of these people are ever going to open their eyes and see anything. None of these people are ever going to recover.”

      Isn't Rutgers the facility in which Jahi had some brain imaging done? It's interesting because thus far, no medical professional with personal knowledge of her case, outside of those affiliated with the IBRF, has made any comments regarding her prospects.

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    8. Yes, I believe the MRI scans that Dolan used at his press conference about a year ago were done in the medical school lab (not the University Hospital itself, since of course there was no medical doctor to admit Jahi as a patient there).

      But, as you stated, we didn't see any actual medical doctors, from Rutgers or anywhere else, coming forth at the media event, or giving testimony to the court. Dolan pretty much did the presentation by himself, and focused on the fact that the scans showed that the brain hadn't yet completely liquefied as was "predicted" would eventually happen at the time of the initial DDNC. Problem was, without any additional medical evidence, the fact that the scans showed that some brain tissue was still intact didn't necessarily "prove" that there was any actual brain *function."

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    9. One more thought on the article...gotta wonder if DeFina, Machado, and the rest of the IBRF posse has already conveyed the same opinion to Jahi's mother as they did to Mikey's.

      As I've stated before, my personal opinion is that they were pretty much out of the picture once their prospects for financial compensation faded away last fall. That was when Dolan's effort to "declare Jahi alive again", and the California proposition to lift the cap on med mal settlements, both failed. With Jahi's no longer being a hospital patient under the care of Dr. Fellus, it's unlikely that they would be able to get Medicaid to pay for some of the non-standard "treatments" that they use.

      I guess we'll know one way or the other if they reappear...or don't...when Brusavitch, Chang, and company present their "new evidence" to the court in a few weeks.

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    10. There was that announcement regarding Machado's paper suggesting a new category of consciousness in which he places Jahi McMath. I thought it was supposed to be published at the end of this month. He would have to still claim she doesn't meet the brain death criteria because she's the main example in his theory.

      I wonder if this paper is the "smoking gun" proof that Chang said he'd reveal in due time.

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    11. Maybe. But as we've stated before, if "Team Jahi," Aden Hailu's family, Dr. Machado, or anyone else wants to change the medical criteria for DDNC, the courtroom isn't the place to do it. The court's job is to interpret and apply existing law, not to change the laws or make new ones just to comply with a particular family's wishes, the IBRF's interest in continuing research, or anyone else's personal agenda. .

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    12. "There was that announcement regarding Machado's paper suggesting a new category of consciousness in which he places Jahi McMath."

      Even if it were published with great fanfare in JAMA and Nature, it wouldn't change anything immediately anyway.

      I'm guessing that the court would still insist that they actually perform the tests that are currently used to determine brain death. Right?

      Wednesday

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  50. Judge Freedman finally issued a ruling on the demurrers yesterday.
    The judge is allowing plaintiffs an opportunity to present their evidence that Jahi is now alive. They have 14 days to present evidence and the defendants have 14 days after that to respond.

    https://drive.google.com/file/d/0B2cnQv8Ma14KYVV3b3ZSckZRUmtoT0hUT1ZDb2UzSGhjQklv/view?pli=1

    Will this ever end?

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    1. lol- sounds like the standard used in criminal trials (no grounds for appeal unless there is "new" factual information).

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    2. That was my take on it also...basically a "call their bluff" move. If plaintiffs try to present the same old lame old stuff that Dolan used last year, or some warmed-over version of the same, it won't "prove" anything. If they really do have some new *factual* information, which would need to be some medically-acceptable testing for brain function, and some credible testimony from licensed medical professionals experienced in the field of neurology, let them bring it on.

      Either way, the court needs to issue a definitive ruling on the "dead or alive" issue in order to move forward with hearing the med mal case.

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  51. Just in time for Halloween, mom Winkfield has posted a new photo:

    https://www.facebook.com/1431002597143292/photos/a.1431209123789306.1073741826.1431002597143292/1651953895048160/?type=3&theater

    Heart shaped gauze?!? Mom claims she is moving more than ever to her commands.

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  52. What's with the gauze patches on her eyes? What is she hiding?

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    1. There were LOTS of questions about that....so in response, we now have the
      "15th Birthday" photo...

      https://www.facebook.com/keepJahiMcmathonlifesupport/photos/a.167241473484813.1073741828.166781143530846/414054192136872/?type=3

      With eyes uncovered...but, as we've said before, who really knows how old these photos are.

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    2. If they could come up with a video of Jahi opening her eyes and blinking in response to mom's questions I'd be convinced she isn't brain dead.

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    3. that 15th birthday photo looks very different than the one with the gauze on the eyes. The one with the gauze looks earlier than the birthday one. And she certainly doesn't look alive to me in that one. It just reminds me of how people look at a viewing.

      Delete
    4. I had the same thought! And, what's up with this mention of the "flawless skin" in almost *every* update that the family releases?

      Maybe we're supposed to think that it's a "miracle" of some kind, since lots of live teens suffer from acne breakouts triggered by hormonal fluctuations associated with puberty. So, Jahi's being spared the teenage trauma of having an ugly zit or two pop out before school picture day, or the daily routine of scrubbing her face with astringent to clean her pores, is somehow more significant than the fact that she's brain dead, and can't experience *life* at all? SMH...

      Delete
    5. I'm with Scarab and others. Why are they hammering on and on and on about how flawless her skin appears? Does that mean teenagers with acne are somehow inferior?

      Not every teenager has dreadful skin. My husband never had any issues when he was a teen (nor have our children). How unlike my experience. He also has thick lustrous hair and that's not fair either. In fact, that's really going to rankle me starting sometime next week and for a long time afterward. I can't afford a really amazing wig that would be mistaken for my own hair. Darn the luck.

      Wednesday

      Delete
  53. Except at a viewing they have the good sense to close the mouth. In all of the pictures of Jahi which were posted during the last 6 months or so her mouth is open. Wouldn't the interior get awfully dry, just like her eyes? That must be a full time job just keeping them moist 24/7.

    ReplyDelete
    Replies
    1. Mouths fall open at death. They keep the mouth closed at a viewing with a special device. Her tongue looks a bit swollen to me in all the pictures.

      As to her "flawless skin", who knows what the rest of her body looks like. No matter how diligent in turning, I can't believe that a body being in a bed for two years doesn't have skin breakdown.

      Delete
    2. I forgot to add that I thought her skin color looked kind of waxy to me in the latest picture. Much different looking than earlier pictures.

      Delete
  54. Posted on the Keep page Oct. 24th.

    A message from Nailah:
    "This was taken today. Almost 2 years after they said she was DEAD!!! who looks this good after being dead for 2 years........ I'll wait!"

    https://www.facebook.com/photo.php?fbid=10207999177716452&set=o.166781143530846&type=3&theater

    Most people are not still connected to mechanical support 2 years after they died. I don't know how she can look into her child's eyes and think that Jahi is still inside that beautiful shell.

    I agree regarding the bed sores. She obviously started out with more padding because of her weight but eventually there is going to be skin breakdown no matter how often they turn her. I've known people who were still ambulatory but confined to bed most of the time who still got bed sores.

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    Replies
    1. That kid isn't alive until she sits up, blinks and asks for her favourite flavour of ice cream. In which case, I'll happily buy her a day at the Edy's Ice Cream parlour.

      I have no worries about being held to that statement.

      Wednesday

      Delete

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