Teen left "brain dead" after tonsillectomy to stay on life support, judge rules

Nailah Winkfield, mother of 13-year-old Jahi McMath, cries before a courtroom hearing regarding McMath on Dec. 20, 2013, in Oakland, Calif. McMath remains on life support at Children's Hospital Oakland nearly a week after doctors declared her brain dead, following a supposedly routine tonsillectomy. AP Photo/Ben Margot

OAKLAND, Calif. - With a family fighting a hospital to keep their daughter who has been declared brain dead on life support, a California judge on Monday ordered the hospital to keep treating 13-year-old Jahi McMath for another week as a second medical evaluation is conducted.

Jahi experienced complications following a tonsillectomy at Children's Hospital in Oakland.

As her family sat stone-faced in the front row of the courtroom, an Alameda County judge called for Jahi to be independently examined by Paul Graham Fisher, the chief of child neurology at Stanford University School of Medicine.

The judge also ordered the hospital to keep Jahi on a ventilator until Dec. 30, or until further order from the court.

The examination was expected to occur later on Monday, and early Tuesday.

Hospital staff and Fisher will conduct an electroencephalogram, or EEG, and tests to see if blood is still flowing to Jahi's brain.

Doctors at Children's Hospital concluded the girl was brain dead on Dec. 12 and wanted to remove her from life support.

Jahi's family wants to keep her hooked up to a respirator and eventually have her moved to another facility.

The family said they believe she is still alive and that the hospital should not remove her from the ventilator without their permission.

"It's wrong for someone who made mistakes on your child to just call the coroner ... and not respect the family's feeling or rights," Sandra Chatman, Jahi's grandmother who is a registered nurse, said in the hallway outside the courtroom.

"I know Jahi suffered, and it tears me up."

A hospital official said that while they sympathize with the family's wishes, it would be unfair to give false hope.

“We look forward to the independent expert’s evaluation of the patient. The Chief of Pediatric Neurology at Stanford Children’s Hospital, Dr. Paul Fisher, is a known expert on brain death and has performed many such examinations," Children's chief of pediatrics Dr. David Durand, said in an emailed statement. “We have the deepest sympathy for Jahi's mother who wishes her daughter was alive; but the ventilator cannot reverse the brain death that has occurred and it would be wrong to give false hope that Jahi will ever come back to life.”

The family's attorney also asked Judge Evelio Grillo to allow a third evaluation by Paul Byrne, a pediatric professor at the University of Toledo. The hospital's attorney objected to Byrne, saying he is not a pediatric neurologist.

The judge is expected to take up the request to use Byrne, and another hearing was scheduled for Tuesday morning.

Byrne is the co-editor of the 2001 book "Beyond Brain Death," which presents a variety of arguments against using brain-based criteria for declaring a person dead.

In a phone interview, Byrne said he could not comment in detail because he had not seen any of Jahi's medical records. But the fact that her ventilator is still functioning properly is a sign that she is alive, he said.

"The ventilator won't work on a corpse," he added. "In a corpse, the ventilator pushes the air in, but it won't come out. Just the living person pushes the air out."

Winkfield said her daughter bled profusely and went into cardiac arrest after undergoing a "simple procedure" to remove her tonsil. She previously said before the procedure, her daughter expressed fears she wouldn’t wake up after the surgery.

Durand said Jahi's surgery was "very complex," not simply a tonsillectomy.

"It was much more complicated than a tonsillectomy," Durand said. He refused to elaborate, citing health care privacy laws.

Arthur L. Caplan, who leads the Division of Medical Ethics at NYU Langone Medical Center and is not involved in Jahi's case, told The Associated Press that once brain death has been declared, a hospital is under no obligation to keep a patient on a ventilator.

"Brain death is death," he said, adding, "They don't need permission from the family to take her off, but because the little girl died unexpectedly and so tragically, they're trying to soften the blow and let the family adjust to the reality."

Often families confuse brain death with a coma or a permanent vegetative state, Caplan said, offering an analogy.

"A coma is like a television that has a picture with a lot of interference," he said. "There's brain activity, but something's not right. A permanent vegetative state is when the screen is all snow. Brain death is when the set is unplugged. There is nothing on the screen."

Keeping Jahi on a ventilator is also likely to cost thousands of dollars a day, he continued, and because she has been declared brain dead, is unlikely to be covered by health insurance.

Earlier Monday, Christopher Dolan, the family's attorney, vowed to keep Jahi hooked to the ventilator through Christmas. He said he would file an appeal if the judge orders her removed from the machine on Tuesday.

"I am confident she'll live through Christmas," a visibly weary Dolan said after the hearing. Dolan said he is working the case for free after the family reached out for help a week earlier.

Given the very public battle over Jahi's treatment, the judge pleaded with attorneys on both sides to continue speaking with each other and the family to help prepare for his eventual final order.

"This is a very, very charged case. The stakes are very high because there's a young girl involved," Grillo said.

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