They can can bring a wrongful death suit even though her body is being maintained on life support in New Jersey. Because Jahi has been declared legally dead. But that would put them in a strange position. I see no opportunities for them to obtain funds through a lawsuit except malpractice or wrongful death. The cap in CA is 250k though for pain and suffering. There is no cap on on-going medical care though, which may be one of the strategic reasons for wanting Jahi declared alive- then the hospital could be sued for the on-going costs of keeping her body going. Perhaps that would enable in-home care.
They are running out of time and evidence when it comes to a wrongful death suit- 1 more year before the SOL is up I believe. And as articles have pointed out, with her body on life support for so long, it becomes harder for an autopsy to determine the COD. Plus, as I stated above, it would be odd for them to file such a suit when try re claiming their daughter is alive. But we shall see.
And either way, I continue to believe that this should've been handled differently by the hospital and that the law should consider this type of choice a private family matter such that if the family can find a facility willing to sustain life support- so be it.
Respectfully snipped for focus, and BBM.
Thank you, gitana1, for your response to my questions about any potential lawsuits that could be filed at this point. It is a big catch-22 for NW to go down the "wrongful death" arm of the algorithm, given the circumstances.
I'd like to respond to the bolded part of your comment above, that the law consider this set of circumstances "a private family matter such that if the family can find a facility willing to sustain life support- so be it."
As a health care professional, I have some unsettling feelings about how that would go, were it to be considered to be put into law. After I have mulled over the Judge's ruling in this case for the last year, I think his ruling was very thoughtful, and considered the best interests of the law, the mother, the CHO, the coroner/ ME, etc. The decision to turn the case over to the coroner, and issue a death certificate, while simultaneously allowing the family to remove her body (still on the ventilator) from CHO was the absolute right thing to do in THIS set of circumstances (given the marches outside the hospital, harassment of staff by the family and their supporters, imposition on other patients and families in the PICU and hospital, etc.)
I don't think it should be up to families to determine when their loved one is dead-- that is a medical diagnosis, rendered in compliance with standards of care, as well as laws. What is in dispute by the family in this case is not only the diagnosis of brain death and the futility of care, but the "when" of withdrawing support. I do believe that this case has been such an index case that it will prompt hospitals to be less compassionate, and
less "lenient" in the "when" of removing organ support. I strongly believe that this case is prompting serious discussions about developing
more restrictive policies to be put in place for how things are handled with patients and families, once a brain death diagnosis is made. Hospitals have watched this nightmare unfold, and never want it to happen in their facilities.
I cannot imagine what kind of law could be crafted to compel hospitals to provide vent/ ICU support of brain dead patients, while families that disagreed with the diagnosis searched high and low for a facility to take their loved ones. The diagnosis of death itself puts the brakes on reimbursement-- the hospital may absorb a few hours, or a few days of care for a brain dead patient, but then what? We cannot
"not diagnose" brain death, just to keep the patient eligible for insurance $$ to pay for care-- that is wholly unsustainable. (And unethical, etc.)
I have no problem with a family desiring to take their brain dead loved one HOME on a ventilator, to be cared for until cardiac death. But I have serious reservations on a large number of levels, at mandating that facilities and their licensed professionals must provide futile (and hugely expensive) care "in perpetuity" until cardiac death occurs-- or until the family decides that they accept the diagnosis of death.
It's a private family decision, IMO, as long as it remains within the confines of the family, IMO, and doesn't involve mandates to providers and facilities. My suggestion would be that care "could" be continued (if the family objects to discontinuing the vent) for a period of perhaps 48 to 72 hours post brain death (which is the outside limit for as long as most organ recovery patients are maintained)-- AND that the brain dead patient be moved out of the ICU to a regular room, with basic ventilator and custodial care only. This would free up the valuable ICU resource for other patients, and make it more clear what the hospital's and professional's roles and responsibilities are toward the care of the brain dead patient. Social workers could assist the families in making arrangements to have the brain dead person moved from the hospital to home, or if a willing care facility can be located, to that facility.
Many, many families take care of ventilator dependent loved ones at home. This situation should be no different, absent the costs for care and caregivers. To be fair to everyone in society, a brain death determination should be handled the same for all. A family should not be entitled to have perpetual care mandated and paid for because they created a social and media circus, and were unwilling to accept the diagnosis-- when other families have to accept death and the withdrawal of support. Every family with a brain dead loved one is in denial and crisis in the first hours after the diagnosis. Yes, maybe it seems on the surface to be unkind or callous to put a time limit for withdrawal of support in place-- but it may become increasingly necessary on many levels for the facilities to do so. IMO.
I think it's immensely sad that the publicity and notoriety of what the family has done in this case is very likely going to prompt limits on options for compassion and time for families in the future.
I'd be happy to discuss further in PM's.
