Family wants to keep life support for girl brain dead after tonsil surgery #9

[mck16]

Not only that, IMO, maybe someone really CAN have it both ways-- sue for disability now, keeping options open to "discover" that later on, there was "something" that caused wrongful death.

Double dip. Brilliant, eh?!

I still think there's a triple dip for this ice cream cone, though. Maybe even a full blown hot fudge brownie banana split, with a cherry on top. It's just not time for dessert....yet.

I don't think the donation fund is high enough for them yet. But, when it gets there, there will be a miraculous revelation to Jahi's family and they will let her go. jmo

 

[lawstudent]

lawstudent, I'm curious what you think may happen, legally.

Do you think NW and attorney Dolan will attempt to change her status from "dead" (with a death certificate that is supposed to be recognized between all states), to some form of "alive", meaning she regains the rights of a living person? (Including the right to apply for things like SSI and Medicaid, etc.)

Originally I was being somewhat facetious when I posted about them seeking for Jahi to be declared "un-dead", but I really think that they may actually try to have her status changed, now. I doubt if they would ultimately be successful in regaining "living" status for her, but the whole process would definitely generate a lot of attention and publicity, IMO.

What do you think? Will they go there? Will they try to have her declared legally "un-dead?"

It's an interesting conundrum.

Well, I have to start out by saying that I have no idea what is going through her mother's head, and I don't feel comfortable stating this is all a money grab - I am more inclined to think it is devastation, ignorance, and denial that have been fed by a public battle. But since none of us actually know, it's hard to say what the strategy will be.

I don't know a lot about death certificates, but if they are indeed recognized by other states, I would think it would be really hard to have that status changed in NJ. NJ seemed to only be directing doctors as to who can be declared dead. The declaration wasn't made by anyone in N.J., so I'd imagine the death certificate remains controlling. I don't really understand why this hospital admitted her, though, so I'd have to know a bit more. I assume that means they are viewing her as alive, and thus would have to declare her dead again to remove support. An attorney may do it free for the publicity, so I could see a possible attempt at doing so.

B...b...but what about the "wrongful death" claims against the hospital that they blame Jahi's condition? Does that not matter any longer if Jahi is deemed to be "alive"? They can't have it both ways...or can they? Jahi's family seems to always get exactly what they want. :moo:

They could do a wrongful death claim against the hospital because she's dead under CA law. However, you don't recover much for children because they didn't support anyone. Punitive damages could be extreme, but we'd have to see what exactly happened and if they were negligent. Juries tend to surprise me in how sympathetic they will be in these cases, so the hospital would be inclined to settle, but in this case I don't know that either side would be willing. Obviously, a jury might be less sympathetic if they are claiming she is alive, although I don't know if that would be admissible. I would like to think that what Jahi's family really wants is for her to be alive, and because they can't get that, they are clinging desperately to any other 'victory.'

My understanding of the situation. There is a $ limit on wrongful death lawsuits.
There is no $ limit on lawsuits regarding hospital rendering someone severely disabled.
Therefore it makes a lot more sense to sue the hospital for rendering Jahi severely disabled, rather than dead.

Yeah, I don't know what CA law is on wrongful death caps. I think with death recognized in CA, such a lawsuit would be highly unlikely to succeed, regardless of NJ law.

Every state would consider her to be dead because she is brain dead. Except New Jersey. Where she could still be considered alive.


http://seattletimes.com/html/nationworld/2023899650_njjahixml.html

Every state would permit her to be declared dead, but it's still not automatic. It's just a legal distinction that could matter in a case like this. Because brain death isn't as easy to determine, and requires some time to do tests to ensure it is permanent, there is going to be a period of time where someone is brain dead but not yet declared dead because it hasn't been verified. When the doctor declares death, it still isn't necessarily legal death. If a doctor makes a rare mistake and the person later wakes up and sues, the doctor's declaration of death will not bar them from bringing a suit for injury. They will be considered alive - it's evidence of the death, but clearly rebuttable. There have been some people declared dead while missing who have resurfaced and the court won't recognize them as alive because state law won't allow a reversal...I'm just saying medical v. legal is not the same thing.

And I just reread the statute, and even though it says a doctor shall not declare death based on neurological criteria if the family has such beliefs, it doesn't say anything about maintaining care. My guess would be she could still be declared dead by court order or the hospital would be allowed to discontinue treatment that it felt was unnecessary - they just couldn't declare death until she was off life support and actually died.

Could a California hospital be sued for something that happened in California, governed by California laws, in New Jersey, according to New Jersey legislation?

I don't think so. But a federal action could be brought, although it'd still be tough when it comes to matters of state law. And does federal law recognize her as dead already? If so, a suit on her behalf would not even be allowed in. It would have to be on the basis of wrongful death.

Ha, were there any pre op papers signed waiving rights to sue? Or am I naive?

I'm sure there were, but you can't sign away the right to go after someone responsible for negligence. You can sign away the right to sue over normal things that were disclosed - for example, that the hospital might share your medical records or bill your insurance company - but not for negligent behavior. You can imagine the public policy reasons why.

 

[Donjeta]

Yeah, I don't know what CA law is on wrongful death caps. I think with death recognized in CA, such a lawsuit would be highly unlikely to succeed, regardless of NJ law.
.

Plaintiffs’ lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California’s 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.

Read more here: http://www.sacbee.com/2014/01/05/6045087/dan-morain-jahi-mcmath-case-is.html#storylink=cpy

 

[lawstudent]

Plaintiffs’ lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California’s 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.

Read more here: http://www.sacbee.com/2014/01/05/6045087/dan-morain-jahi-mcmath-case-is.html#storylink=cpy

I can't help but feel this is totally ridiculous - this is why people rant about tort reform. Pain and suffering can't be monetarily quantified and I'd be hard pressed to give anyone money - it's not going to undo pain and suffering. I know the idea is to punish the perpetrator, but it just rubs me the wrong way. Now, if someone needed care as a result of such suffering, I'd support recovery. I think punitive damages are different than pain and suffering damages, but I don't know.

 

[K_Z]

lawstudent, thanks so much for your thoughtful response above.

I have also been thinking about the "admission" to the St. Peter PICU, as well as such things as "what is the DNR status", and "how" would they withdraw any care, or even arrange a transfer, if desired by family? If/ when her heart stops-- will they conduct measures to attempt resuscitation? Would she be declared dead AGAIN, with a new, NJ death certificate? Does the NJ hospital recognize the death certificate issued in California-- is the NJ medical examiner involved in any way? There are soooo many questions about this situation. I truly am surprised any licensed acute care facility was willing to take on this situation-- a nursing home or hospice, maybe-- but acute care hospital??

My suspicion is that the "admission" to the hospital PICU was based on some kind of "compassionate care" mission, that may be part of the hospital's religious (Catholic) charter. Meaning, their ethics committee, or other administrative cadre had to meet and make a decision about whether, and how they would help this particular family. I also strongly suspect Dr. David Byrne had a strong influence with some of these administrators, urging them to take this project on as a compassionate religious "mission" of sorts. There could be an argument made that this family had "nowhere to turn", and were out of options from the traditional medical and legal establishments-- being that the brain death declaration had held up in California court challenges.

Where it gets interesting is whether her status at this hospital is the same within their institution as any other living patient. (And I'm going to revert to using pronouns to refer to Jahi's body, because it's easier-- not that I believe she is alive in any way beyond somatic support of organ systems.)

Does she, in fact, "exist" in the hospital record systems, billing systems, etc the same as any other living patient? Have they generated standard medical records and data entry records for her care? Is her care provided by licensed, on duty, health professionals? Has this facility applied for any state benefits for Jahi, in order to bill and receive reimbursement? Is Jahi counted in the census as a living patient? Does she, in fact, occupy one of their census, licensed PICU beds, or was another status created for her patient bed?

Are these health professionals at risk to be sued for "negligence" due to the care they render to her? Do the malpractice policies of the hospital facility, and the personal policies of the professionals cover them for negligence provided to a patient declared dead?

Is the care they provide subject to standard morbidity and mortality reporting-- as in, if she develops a ventilator acquired pneumonia, or other nosocomial infection-- is this reportable in the hospital statistics to the state? What is the standard of care for a patient in this situation for such an extended period of somatic support?

If Jahi had been a NJ resident, and had the same course of surgery and complications, it would make sense to me that she could fall within their statue exception for declaring death. But it also seems to me that if she was declared dead 3000 miles away, that "if" the NJ hospital is acting "as if" she is alive (doing all the things above that are done for other living patients), that attorney/s will use this as a strong part of any challenges to "reverse" the death declaration.

 

[lawstudent]

lawstudent, thanks so much for your thoughtful response above.

You're welcome! Just want to clarify that I have my J.D., but I'm not an attorney and I'm not an authority on any of this. Most of this is my educated opinion/guess only.

I have also been thinking about the "admission" to the St. Peter PICU, as well as such things as "what is the DNR status", and "how" would they withdraw any care, or even arrange a transfer, if desired by family? If/ when her heart stops-- will they conduct measures to attempt resuscitation? Would she be declared dead AGAIN, with a new, NJ death certificate? Does the NJ hospital recognize the death certificate issued in California-- is the NJ medical examiner involved in any way? There are soooo many questions about this situation. I truly am surprised any licensed acute care facility was willing to take on this situation-- a nursing home or hospice, maybe-- but acute care hospital??

I just did some death certificate research, and it was sparse but interesting. It seems like the records vary a lot by state. It also seems that in litigation in which death is disputed, the death certificate is offered as convincing evidence of death, and the party arguing the person is dead would go look for it and present it to a court. Agencies buy and store records from the states for the purpose of stopping benefits etc., but don't independently verify. I think we've all seen news cases where someone keeps running into problems because they are erroneously listed as dead in a database, and it's not easy to fix because the data is not central - you basically have to go to each entity individually and try and correct the issue. So my guess is the hospital wouldn't know about death declarations in other states, but I assume they have her medical records and know she was declared brain dead, and didn't just take her without any information given her condition. Why they would do that is not clear to me. Maybe a research study of some sort, or compassionate grounds? But I don't think they are bound to consider her dead because CA does.

My suspicion is that the "admission" to the hospital PICU was based on some kind of "compassionate care" mission, that may be part of the hospital's religious (Catholic) charter. Meaning, their ethics committee, or other administrative cadre had to meet and make a decision about whether, and how they would help this particular family. I also strongly suspect Dr. David Byrne had a strong influence with some of these administrators, urging them to take this project on as a compassionate religious "mission" of sorts. There could be an argument made that this family had "nowhere to turn", and were out of options from the traditional medical and legal establishments-- being that the brain death declaration had held up in California court challenges.

If the hospital is Catholic, I agree that may be why. The Church has moved towards recognition of brain death as death, but always errs on the side of life, and does not consider brain function necessary for a recognized life. It actually does not recognize brain death as death - that's the wrong way to put it - what it recognizes is that if someone is brain dead, or she can be removed from artificial support and allowed to die, and that is not considered euthanasia/murder like in the Terri Schiavo case that it objected to. A brainless fetus cannot be aborted under Catholic doctrine.

Where it gets interesting is whether her status at this hospital is the same within their institution as any other living patient. (And I'm going to revert to using pronouns to refer to Jahi's body, because it's easier-- not that I believe she is alive in any way beyond somatic support of organ systems.)

Based on my recent research - I believe she would be. I don't think hospitals have a practice of classifying patients as dead v. alive. Brain dead, probably, but not as a status - as a diagnosis.

Does she, in fact, "exist" in the hospital record systems, billing systems, etc the same as any other living patient? Have they generated standard medical records and data entry records for her care? Is her care provided by licensed, on duty, health professionals? Has this facility applied for any state benefits for Jahi, in order to bill and receive reimbursement? Is Jahi counted in the census as a living patient? Does she, in fact, occupy one of their census, licensed PICU beds, or was another status created for her patient bed?

I would guess yes to all of the above, but not sure. Censuses are filled out by parents, so if they list her as alive, I'm not sure if the government will cross-reference a death list. Another party like an insurance company could fight payment by presenting the death certificate as evidence of death, but insurance companies are required to pay for brain dead people for a reasonable time, aren't they? They don't refuse to pay for the time between the diagnosis and the life support removal? The person is not considered dead for their purposes until the death certificate is issued, which usually doesn't happen as it did in this case. Not sure how it would come out.

Are these health professionals at risk to be sued for "negligence" due to the care they render to her? Do the malpractice policies of the hospital facility, and the personal policies of the professionals cover them for negligence provided to a patient declared dead?

I mean Jahi's parents can certainly file on her behalf, but a defense would be there cannot be any injury to a brain dead person, or to a dead person, with the death certificate offered as evidence for the latter argument. So my guess is it couldn't go far.

Is the care they provide subject to standard morbidity and mortality reporting-- as in, if she develops a ventilator acquired pneumonia, or other nosocomial infection-- is this reportable in the hospital statistics to the state? What is the standard of care for a patient in this situation for such an extended period of somatic support?

I would guess yes - all states report this separately it seems.

If Jahi had been a NJ resident, and had the same course of surgery and complications, it would make sense to me that she could fall within their statue exception for declaring death. But it also seems to me that if she was declared dead 3000 miles away, that "if" the NJ hospital is acting "as if" she is alive (doing all the things above that are done for other living patients), that attorney/s will use this as a strong part of any challenges to "reverse" the death declaration.

The physician would have to have a reasonable belief that this was due to a religious conception of death, but it certainly may have fallen into that exception. Essentially, I think since these are matters of state law, it doesn't matter what CA says. It wouldn't be used to reverse CA law.

 

[ArianeEmory]

Plaintiffs’ lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California’s 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.

Read more here: http://www.sacbee.com/2014/01/05/6045087/dan-morain-jahi-mcmath-case-is.html#storylink=cpy

Isn't that the same $250k Uncle Omari referred to as "chump change"?

 

[al66pine]

Could a California hospital be sued for something that happened in California, governed by California laws, in New Jersey, according to New Jersey legislation?

Donjeta
I know lawstudent already gave a response to this above.

Still I'm wondering about the jurisdiction and conflict of law questions Karmady mentioned.

IIUC,
---- IN STATE OF CAL from the time of Jahi's initial dr apptmt, thru her hospital admission, surgery, post-surgery, etc. until family arranged ambulance picked her up for transport, presumably to another state, now NJ.
Jahi, Jahi's relatives w standing to sue for her injuries,
All the doctors, surgeons, nurses, other med care providers and administrative, non-med staff, Ethics Comm. Members, etc in Children's Hosp., hospital itself all in CAL.

---If Jahi's mom (and possibly any other relative w standing to sue for injuries) were to sue in NJ STATE COURT on basis that she is still living,

---I wonder if counsel for the hospital et al would raise NJ ST CT's LACK OF PERSONAL JURISDICTION over them as an AFFIRMATIVE DEFENSE.

IOW, in an action for personal injuries to Jahi on the alleged basis, she is 'alive' in NJ, the defendants would respond ---
All involved were in CA at time of events in Q, and we cannot be forced to seek legal representation and defend an action in NJ, when none of the events occurred there, there was no nexus, no tie to NJ, prior to Jahi's mom deciding to take her there. CA, not NJ, is the place for this litigation.

Maybe arguing even if NJ State Ct were to deny motion to dismiss for lack of personal jurisdiction re these defendants...

By moving her to NJ, Mom does not get to cherry-pick the law to apply---
---Not re death or brain death.
---Not CA $$ cap on death or CA law re measures of damages.

Just speculating.

As to Jahi's filing in FEDERAL COURT in NJ, hmmm.
Would defendants raise FORUM NON CONVENIENS (sp?) there?

 

[al66pine]

Plaintiffs’ lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California’s 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.

Read more here: http://www.sacbee.com/2014/01/05/6045087/dan-morain-jahi-mcmath-case-is.html#storylink=cpy

What if anything does the ballot initiative say about effective date of application (of new law)---
Is it determined by date of injuries incurred or date of filing?

Do anyone have link to specifics of ballot measure?

 

[lawstudent]

Studying jurisdiction right now for the bar and still don't get it, but I'll give this a shot.

---I wonder if counsel for the hospital et al would raise NJ ST CT's LACK OF PERSONAL JURISDICTION over them as an AFFIRMATIVE DEFENSE.

I would definitely think they would. Plus I think they can get it automatically moved to federal court as a diversity action. They probably wouldn't even end up needing it as an affirmative defense because they could assert it in a motion to dismiss and probably win. I can't see it coming within the long arm statute. And the incident in question simply isn't a matter of NJ law, if they sue for Jahi's injuries in CA as Jahi herself. They have to sue pursuant to some cause of action,lack either CA statute or common law. They can't go into NJ state court and file a complaint alleging violations of CA state law. And if they alleged violations of NJ state law, none of that took place subject to NJ law, so there was no violation.

As to Jahi's filing in FEDERAL COURT in NJ, hmmm.
Would defendants raise FORUM NON CONVENIENS (sp?) there?

Yes, but I don't think it would even come down to that. In federal court, they would still be alleging violations of CA law, so they would have to sue federal court for the district of CA, I think. Subject matter jurisdiction issues. All the stuff about personal jurisdiction comes into play when you sue under your own state law and the defendant lives elsewhere. So if the plaintiff was a business in CA and it sold something to you in NJ, and then the product injured somebody, the harm occurred in NJ, so you sue under a NJ statute, and the CA company will try and fight it. Or if they shipped it to a warehouse in NY first and you bought it there, you could try and get the NY retailer to come to NJ, and also argue the CA company, by shipping things to NY, realized they could get to NJ easily and cause harm. Or somebody in CA harasses you via the Internet - you try to get them to come to NJ to litigate over it. The harm is taking place in your home state. You don't file in your state about harm that took place in another state usually.

 

[Hekattee]

Someone posted some photos from the mother's account on a Facebook page. The photos are in black and white, and show as little of Jahi as possible, but IMO she clearly looks dead.

https://www.facebook.com/TeamJahiAFamilyInDenial

 

[ArianeEmory]

Someone posted some photos from the mother's account on a Facebook page. The photos are in black and white, and show as little of Jahi as possible, but IMO she clearly looks dead.

https://www.facebook.com/TeamJahiAFamilyInDenial

I'm guessing using the B&W wasn't an artistic choice.

 

[BetteDavisEyes]

Someone posted some photos from the mother's account on a Facebook page. The photos are in black and white, and show as little of Jahi as possible, but IMO she clearly looks dead.

https://www.facebook.com/TeamJahiAFamilyInDenial

Most sincerely dead. Disgusting. NW is in deep, deep denial.

 

[K_Z]

The pic of NW kissing Jahi is now up on the WS- allowed "Keep Jahi McMath on Life Support" Facebook page. No indication as to the date of the pic.

https://www.facebook.com/keepJahiMcmathonlifesupport

 

[seattlechiquita]

Dang, those pics are creeping me out. I wish these people would just GO AWAY.

 

[iamnotagolem]

Those pictures

I can't believe this is still going on. It just breaks my heart. Imagine the mental health issues this family will have after it all ends. How do you live with knowing you kept your child's body around for months after she died? It's so heartbreaking and disturbing all at the same time.

 

[Linda7NJ]

I find it no more disturbing than other people on life support and/or in a coma.


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[seattlechiquita]

I find it no more disturbing than other people on life support and/or in a coma.


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Most of those peoples' families are denying the medical and legal pronouncements of death and milking people for money. This family does both.

 

[JLSChook]

Where's the breathing tube? Am I blind? :waitasec:

 

[meanmaryjean]

Where's the breathing tube? Am I blind? :waitasec:

She has a surgically places tracheostomy tube in her neck. It exits down by the notch you can feel by running your own finger down your windpipe- it is hidden in this picture.