What I addressed was whether the lawyer has an ethical duty to rush in and reverse the death declaration. That's what I answered - not whether there would be reasons for him to do so or a benefit to the family if he did so. And my answer is that no, he has no ethical duty to do so. At all. I wanted to clear that up.
As to any possible beneift to do so, first of all, there is a cap on med. mal cases whether the patient is alive or not. $250,000.00 is all the family can get for pain and suffering, period. Whether Jahi was still alive or whether she remains declared dead. They get no more.
Of course, the payment of her medical care is another story and there is no cap on that.
However, if Jahi received Medi-Cal, which is what I suspect, there would be no out of pocket cost for her for medical care, if she was declared alive. So there would be little difference in what can be recovered between death and alive (but disabled). I do not believe she would be entitled to lost wages due to her age at the time of the incident.
Of course Jahi is at a facility and that facility is keeping her body sustained right now. And that costs money. If the declaration of death was reversed, she could be transported to a hospice or rehab facility and if she is eligible for Medi-Cal, that would cover her costs.
Nevertheless, it appears that the facility she is at is providing the services to Jahi either free of charge or funded by a right to life organization. So the family is not losing money as a result of her remaining legally dead.
Finally, the lawyer understands that it would take a lot to obtain a reversal of death declaration. Even if Jahi is showing signs that some interpret as signs of life.
And, while I believe this attorney is actually passionate about his case, truly believes in the cause and believes in the family, his statements about Jahi showing signs of life may be more designed to assist the cause- that cause being a family's right to maintain "life preserving measures" on a person that has been declared brain dead, if that person's religion or personal conviction states that only cardiac death determines death.
In other words, the attorney is the mouthpiece of his clients' position, not his own, personal beliefs. He has a case he is fighting that is an uphill battle but it is a case he believes in. I can understand that. I may not agree with a position my client is taking. But I will fight for their right to assert their position, if it involves a legitimate cause or belief on their part, depending on the circumstances.
The attorney may believe that Jahi is indeed brain dead and that it is unlikely that her condition will be reversed. (Or he may truly believe that science is fallible and Jahi has a chance). Either way, you better know that he has explained to the family what they are up against.
However, if he personally believes it is unlikely that Jahi will recover, he does appears to understand that there are those who believe brain death is reversible, that the science of the brain is not fully understood or explored and that miracles can happen, that brain death does not equal actual death and that certain responses of the body may be evidence of a miracle. And he appears to believe that such persons deserve protection of the law.
He is doing his job, representing that faction and representing their beliefs that the movements Jahi's body is making may be evidence that she is indeed, not brain dead or is healing from brain death. There is nothing unethical he is doing, IMO, at this point.
And since he probably understands that it is unlikely a miracle will occur and Jahi will recover from brain death, nothing can be gained at this point by rushing into court even while he makes statements affirming the belief that there may be signs of life. Further, his thinking may be that if indeed, somehow, the medical establishment is wrong and a miracle occurs, he has time to wait and see if the movements turn into more and signs of life return in a manner discernible to medical professionals.
Basically, he has one year from the date the malpractice was discovered, to file a lawsuit, whether for medical malpractice wrongful death or medical malpractice without wrongful death. My guess is that when the statute is close to tolling, if Jahi's heart is still functioning, he will probably file both actions in one, even though they seem contradictory (although I can't say for sure, because it is not my area of the law), sort of to cover both bases: If nothing changes within the 12 month period, and the law continues to consider her dead, he's got his other claim to fall back on. That is the case if her heart stops before the case is resolved as well. If she miraculously shows signs of life or if he is deciding to use this case as part of a greater challenge to the brain death law in California, he will have the regular malpractice claim to continue on with. One claim will eventually be dropped either way.
I'm betting this is probably seriously confusing. My apologies. I'm sure for some it seems like his statements, if he really, personally believes Jahi is brain dead and will never recover, or the (possible) filing of two, contradictory suits, evidence a hypocrisy and dishonesty.
Although my personal practice as an attorney is different (I would use statements like, "My clients report clear signs of life. I have seen those signs and it does appear that she is moving and responding. My client's right to hope and their belief in life without cardiac death, should be respected by the laws of this state and that it what I am fighting for."), many attorneys simply act as the mouthpiece of their clients (E.g. "He is 100% innocent of the charges and is eager to prove that at trial."), without breaching the rules of ethics.
As to filing two contradictory claims, that happens not infrequently in civil cases and is done as a means to preserve the clients' rights.
