Family wants to keep life support for girl brain dead after tonsil surgery #8

[MyBelle]

To preserve the status quo in order for the litigation to be completed. There were several different court actions in several different courts and as long as the judge wasn't sure what the evidence and the outcome of those rulings would be it was reasonable to preserve the status quo. If he'd allowed the hospital to remove the ventilator straight away he'd effectively have sided with them before the merits of anyone's full case could be heard.

He gave temporary injunctions that ordered the hospital to keep a dead body on IV and vent support for a few days at the time. It was necessary to keep the status quo as Jahi's fate was under legal dispute. At first the parties represented Jahi's current medical status and her prognosis to the court in different terms and more time on the ventilator was needed in order to get an independent expect to evaluate Jahi. When the independent expert had given his views the judge said that the hospital could take her off the ventilator on December 30th. Then there was another petition filed by the family and he extended the temporary injunction and said the hospital could take her off the ventilator on January 7th.

The family's religious views about Jahi's fate, whatever anyone may have thought them to be, probably weren't going to change on either December 30th or January 7th.

The question isn't about the family's religious views it is about that of the court. If you do not wish to believe the Judge left Jahi on IV fluids and a ventilator because of his RESPECT for her religious beliefs, by all means go for it. I certainly have no clue as to what outcome you are so desperate to believe is "right."

 

[Donjeta]

By all means please share with us what the investigations concluded. Thanks.

What are you talking about? The independent expert's findings?
Sure, see here:

http://articles.latimes.com/2013/de...urologist-affirms-girl-is-brain-dead-20131224

An independent neurologist appointed by an Alameda County judge has affirmed that a 13-year-old Oakland girl is brain-dead after a tonsillectomy on Dec. 9, paving the way for her to be removed from life support.

The opinion by Paul Graham Fisher, a pediatric neuro-oncologist at Stanford School of Medicine, backs the assessments of two doctors at Children’s Hospital & Research Center Oakland after Jahi McMath had her tonsils removed, went into cardiac arrest and the flow of oxygen to her brain was cut off.

The notes he submitted to the court can be found here:
http://www.scribd.com/doc/198076300/Children-s-Hospital-Oakland-Dr-Paul-Fisher-Report

 

[Donjeta]

The question isn't about the family's religious views it is about that of the court. If you do not wish to believe the Judge left Jahi on IV fluids and a ventilator because of his RESPECT for her religious beliefs, by all means go for it. I certainly have no clue as to what outcome you are so desperate to believe is "right."

Please don't change the subject. I am not trying to make any point about what the right outcome was here, just noting that the claim that religion was the only reason the judge gave the temporary injunctions is opposed by the court record.

As I said, the judge may very well have been quite respectful of the religion of the family privately but the judge's personal opinions about the family's religious views were not made explicit in his court rulings; he told us his legal reasoning in the document and he never mentioned religion. It's public record and I have no wish to dismiss his words in an official court ruling.

The injunctions were temporary and the court ruled on separate occasions that Jahi could be taken off the ventilator and the IV fluids on December 30th and January 7th. Surely he did not think that the family would suddenly stop being religious on either of those days so that ruling was clearly based on factors other than respect for their religious views.

(ETA: From Dolan's petition, see page 5 http://www.thaddeuspope.com/images/Mcmath-12302013_writ_petition.pdf
the reason for the December 30th date was to give the parties time to appeal, which they did.)

 

[MyBelle]

Please don't change the subject. I am not trying to make any point about what the right outcome was here, just noting that the claim that religion was the only reason the judge gave the temporary injunctions is opposed by the court record.

As I said, the judge may very well have been quite respectful of the religion of the family privately but the judge's personal opinions about the family's religious views were not made explicit in his court rulings; he told us his legal reasoning in the document and he never mentioned religion. It's public record and I have no wish to dismiss his words in an official court ruling.

The injunctions were temporary and the court ruled on separate occasions that Jahi could be taken off the ventilator and the IV fluids on December 30th and January 7th. Surely he did not think that the family would suddenly stop being religious on either of those days so that ruling was clearly based on factors other than respect for their religious views.

I did not change the subject. If you wish to believe the Judge made his decision to prolong IV and ventilation therapy on a dead body, by all means please supply your theory that he did so for reasons other than the family's faith.

 

[Donjeta]

I did not change the subject. If you wish to believe the Judge made his decision to prolong IV and ventilation therapy on a dead body, by all means please supply your theory that he did so for reasons other than the family's faith.

My desperate wishes for the outcome, if any, are irrelevant to the discussion of what the judge said his reasoning was.

Here is the TRO again.
http://www.thaddeuspope.com/images/Winkfield_v._Childrens_Hosp_Oakland_Cal_2013_.pdf

I invite you to read the part where he tells us what his reason is:

"Failure to grant the Petition will potentially result in irreparable harm to the patient Jahi McMath and this order is necessary until such time that the Petitioner can obtain her daughter's medical records and obtain an independent medical examination and this Court can hold further evidentiary hearing."

IOW, it was necessary to continue the vent support until the independent neurologist could come in and confirm whether irreparable harm would come to Jahi if she was taken off the vent or if she was really brain dead.

As I believe that atheist families alike are allowed to file a case in court if they disagree with the end of life decisions regarding their relatives I certainly do hope that respect for religion is not the only thing that matters to judges, It could lead to very unfair outcomes if religious families were able to get injunctions for their comatose-but-possibly-not-braindead family members and atheist families were not.

 

[Elley Mae]

His comments were in response to the expert determining she was dead and the fact that therefore the injunction was being lifted, right?

He was saying he hopes their religion comforts them at this time - as in the difficult time of her death. I think it's a stretch to read it other ways.

I am thinking there had to have been a sign/clue about their religious conviction for him to say that. I would have asked what he meant by that had he said it to me.

 

[Donjeta]

Dolan's first petition made use of primarily non-religious arguments but Jahi's mother did state she believes God can heal all in her statement to the court, dated 12/20.

http://www.thaddeuspope.com/images/McMath_EXHIBITS_1_of_2.pdf

 

[lawstudent]

I am thinking there had to have been a sign/clue about their religious conviction for him to say that. I would have asked what he meant by that had he said it to me.

I think from the beginning the her mother has made it clear she believes a miracle could occur, so there has always been some sort of religious aspect to her stance. But those religious arguments were never reached because of the appeal never happened. The support measures were continued not in case of a miracle, but to conclude that she met the medical definition of dead. Once she did, he told them he hoped their religious beliefs would comfort them.

 

[K_Z]

As I believe that atheist families alike are allowed to file a case in court if they disagree with the end of life decisions regarding their relatives I certainly do hope that respect for religion is not the only thing that matters to judges, It could lead to very unfair outcomes if religious families were able to get injunctions for their comatose-but-possibly-not-braindead family members and atheist families were not.

Respectfully snipped for focus, and BBM.

I think this is a very salient point that you make.

If the courts were to allow exceptions, or opting out of a diagnosis of death, or some similar type concessions to be made based solely on religious claims alone, that would disenfranchise everyone who either isn't "religious", (or religious enough), or is atheist, or disagrees based on something like "biology", or a personally held "non-religious" belief about what life and death is.

In essence, imagine how ridiculous it could be if the courts ruled:

"Well, Citizen X, we will grant you this exception to the legal diagnosis of death based on your personally held religious belief. We will assist you, Citizen X, in your efforts to have this brain dead relative maintained indefinitely on life support, because the court respects your religious beliefs that they are alive."

"But Citizen Y, I'm sorry, but since your personally held belief is not based on religion, the court will not grant you this exception to the diagnosis of death, and you have to follow the law as written. You, Citizen Y, do not have a real basis for an exception to believe this brain dead relative is still alive."

The beauty of this argument is that it really doesn't matter AT ALL whether NW's belief that Jahi is still alive is based on a little religion, a lot of religion, or NO religion. In fact, the argument as to what the judge "relied on" in his ruling, IMO, is far stronger , IMO, when it is NOT based on religion. It simply doesn't matter, and should not matter to the court, whether or not NW is religious in her petition to the court. IMO.

I agree with others who posted that the judge expressed personal condolences for the heart wrenching situation that this family found themselves in. Judges are allowed to express emotions, such as compassion, anger, disgust, etc, and often do when explaining their rulings. The judge, IMO, was just trying to be compassionate and sympathetic in his PERSONAL condolences, which had nothing at all to do with his official ruling. I think the court documents establish that without any further argument.

 

[nrdsb4]

"Well, Citizen X, we will grant you this exception to the legal diagnosis of death based on your personally held religious belief. We will assist you, Citizen X, in your efforts to have this brain dead relative maintained indefinitely on life support, because the court respects your religious beliefs that they are alive."

"But Citizen Y, I'm sorry, but since your personally held belief is not based on religion, the court will not grant you this exception to the diagnosis of death, and you have to follow the law as written. You, Citizen Y, do not have a real basis for an exception to believe this brain dead relative is still alive."

Isn't that actually the case in New Jersey? That a family may object to the definition of brain death as legal death if they hold a certain religious belief? IIRC the religion in question is Orthodox Judaism?

If I recall correctly, someone familiar with California law quoted part of the statute which states that hospitals DO NOT REQUIRE PARENTAL PERMISSION to disconnect life support in the event of a brain death. They are simply required to give families "reasonable" time to gather for goodbyes. There is no religious exemption in California law for disputes of the definition of death. The fact that the judge ordered numerous injunctions against withdrawing mechanical support was viewed by the other legal eagles here as a deviation from typical California precedent.

Please correct any of the above if I've misstated anything.

 

[jjenny]

Isn't that actually the case in New Jersey? That a family may object to the definition of brain death as legal death if they hold a certain religious belief? IIRC the religion in question is Orthodox Judaism?

If I recall correctly, someone familiar with California law quoted part of the statute which states that hospitals DO NOT REQUIRE PARENTAL PERMISSION to disconnect life support in the event of a brain death. They are simply required to give families "reasonable" time to gather for goodbyes. There is no religious exemption in California law for disputes of the definition of death. The fact that the judge ordered numerous injunctions against withdrawing mechanical support was viewed by the other legal eagles here as a deviation from typical California precedent.

Please correct any of the above if I've misstated anything.

My understanding is that New Jersey is the only state that allows family to decide whether brain dead person should be considered dead or not.
You are correct about CA. Permission from family is not required to turn off life support from a brain dead patient.

 

[K_Z]

My understanding is that New Jersey is the only state that allows family to decide whether brain dead person should be considered dead or not.
You are correct about CA. Permission from family is not required to turn off life support from a brain dead patient.

2007 NJ statute for brain death

http://www.state.nj.us/lps/ca/adoption/bmeado57.htm

13:35-6A.6 Exemption to accommodate personal religious beliefs

Death shall not be declared on the basis of neurological criteria if the examining physician has reason to believe, on the basis of information in the patient's available medical records, or information provided by a member of the patient's family or any other person knowledgeable about the patient's personal religious beliefs, that such a declaration would violate the personal religious beliefs of the patient. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria.

http://www.lawrev.state.nj.us/UDDA/UDDAM07092012.pdf

“Religious or Conscience exception” to the definition of death. The exception provides that if the physician has reason to believe on the basis of information in the individual’s available medical records or information provided by the family or any other person knowledgeable about the individual’s religious beliefs, that the individual’s personal religious beliefs would be violated by the declaration of death, then the death of the individual shall not be declared upon the basis of the neurological criteria. In such cases, death is declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria. Only New Jersey and New York7 recognize such an exception.8

Although the “religious or conscience exception” may be considered controversial because New Jersey is only one of two states that have included the exception in their definition of death, there are no reported cases challenging this provision.10 In sum, it does not appear that any changes to the NJDDA are necessary at this time and nothing further is recommended.

 

[K_Z]

http://articles.philly.com/2014-01-23/news/46468066_1_life-support-fetus-pregnant-patient

The second case is in California, where Jahi McMath, 13, had tonsil surgery Dec. 9. She ended up brain-dead. When the hospital tried to remove the ventilator, her parents went to court, which granted a temporary stay.

After a coroner issued a death certificate, the family wheeled the corpse, lungs still functioning with a machine, out of the hospital. The family's lawyer said the body is now on a feeding tube and ventilator at an undisclosed hospital.

"I don't think I've ever had a case where a family says, 'I'm sorry, I can't accept that. You have to keep her going,' " said Howard I. Hurtig, a neurologist at Pennsylvania Hospital. "There is no law that requires you to keep her going. This was settled 40 years ago."

Families often refuse to withdraw life support when doctors and nurses feel care is futile - but not after a patient has died.

Hurtig said what's likely going on in California is a failure in communication.

Clearly, he said, the family was heartbroken. Perhaps doctors didn't show enough compassion. Maybe there were previous episodes when the family felt disrespected or was denied care.

"My own experience is, if you explain things carefully and compassionately, . . . a lot of times people come to their senses," Hurtig said.

Taylor said New York and New Jersey laws allow families of brain-dead patients to ask that death be declared based on the absence of a heartbeat.

"It's my understanding it was passed primarily to accommodate the Jewish Orthodox community," she said. The New York statute, for instance, makes it clear the accommodation is temporary and urges hospitals to write polices providing "guidance on limits to the duration of the accommodation."

Taylor said she has been on the ethics committee of a Princeton hospital for six years and the issue has not come up.

 

[legalmania]

In a way I can't blame these parents. Everyday new progress is being made in science. A friend of mine just called me and told me they have here on a new drug that so far has a 97% cure rate for Hepatitis C .She was told she would need a new liver to survive, but with this new medication her liver is healing. Sorry I don't have a link but this is a experimental drug and not a whole lot of information is being told about it. When I talk to her next time I'll try to get the name of the medication. I'm hoping that no matter what this child's destiny is that she does not suffer needlessly.

 

[lawstudent]

We do give exemptions for religious people that are unavailable to atheists all the time. Religion is considered to be a unique justification deserving of higher respect than justifications on other grounds. It seems like the NJ law isn't used much, which would make sense. Is it meant to address patients like Jahi? Is she considered to still have pulmonary function as Orthodox Jews define it? Or is there is some other way this would come up? Irreversible coma?

 

[kaki]

In a way I can't blame these parents. Everyday new progress is being made in science. A friend of mine just called me and told me they have here on a new drug that so far has a 97% cure rate for Hepatitis C .She was told she would need a new liver to survive, but with this new medication her liver is healing. Sorry I don't have a link but this is a experimental drug and not a whole lot of information is being told about it. When I talk to her next time I'll try to get the name of the medication. I'm hoping that no matter what this child's destiny is that she does not suffer needlessly.

I see your point about having hope for a cure with a very hopeless condition...in this situation I cant see any cure that would regenerate a new brain. As i understand..her brain is dead and gone.

 

[Donjeta]

Isn't it amazing how it is possible that many people can view the same situation so differently? Reminds me of the old game of "telephone", where the end message has changed substantially from what it was in the first place.

IMO, Jahi's family's response to her diagnosis of brain death has never been about religion at all. I don't personally think their response to her death in December had anything to do with their religious beliefs, and I don't think their current handling and management of the situation has anything to do with religion.

It's fine with me if some want to attribute this mother's resistance to the brain death determination as due to "religion", and endlessly pick at words to try to justify that, but I have never viewed any of the family's actions or reactions as rooted in any kind of religion. But that's just me. IMO. Etc.

Anyone's religious beliefs, truly held or not, can never be proven, or disproven. It's kind of a "beautiful" dead end, IYKWIM.

There is a good dose of denial mixed up with the religion, anyway.
As far as I'm aware of, it seems to me that the religious groups who are against the neurological determination of death tend to be against it because A) their religious scriptures say that life is in the heartbeat, or something to that effect, and B) because they believe their deity/deities can perform miracles and heal even the braindead. But none of the religious groups that I'm aware of categorically state that there is no such thing as brain death. They deny that brain death equals actual death and they think it's morally wrong to disconnect life support from brain dead individuals as they're still considered alive as long as (insert deity/deities) keeps their heart beating with the aid of the manmade ventilator.

But I haven't come across any religions that encourage the belief that brain cells do not die when they're deprived of oxygen or that doctors and their tests must be wrong if they say someone is brain dead or that there is still hope of recovery by fish oil if people have no circulation in their brain.

But that seems to be part of what Jahi's mother is saying. It's not just believing in miracles and believing that brain death doesn't equal real death.

She believes in miracles so there's religion but whether brain death equals real death morally and religiously seems somewhat irrelevant to her as she seems to be denying that Jahi is brain dead at all. It seems like she clings to a belief that no matter what the tests say Jahi isn't brain dead and the multiple diagnoses are all wrong. I'm putting that part down on hope and denial and supporters who keep saying it will be okay if we just pray a little more and give her fish oil, but I'm not aware of any religious tenets that require that belief.

No religions that would approve of life support, anyway - those people who think all medical intervention is a betrayal of faith might be distrustful of neurological exams and scans and think of them as the devil's ways of tricking them but they would likely be vehemently opposed to keeping people on ventilators as well so I don't suppose Jahi's family belongs to any of those sects.

 

[Elley Mae]

Isn't that actually the case in New Jersey? That a family may object to the definition of brain death as legal death if they hold a certain religious belief? IIRC the religion in question is Orthodox Judaism?

If I recall correctly, someone familiar with California law quoted part of the statute which states that hospitals DO NOT REQUIRE PARENTAL PERMISSION to disconnect life support in the event of a brain death. They are simply required to give families "reasonable" time to gather for goodbyes. There is no religious exemption in California law for disputes of the definition of death. The fact that the judge ordered numerous injunctions against withdrawing mechanical support was viewed by the other legal eagles here as a deviation from typical California precedent.

Please correct any of the above if I've misstated anything.

That's exactly the way I remember it as well.

 

[Donjeta]

In a way I can't blame these parents. Everyday new progress is being made in science. A friend of mine just called me and told me they have here on a new drug that so far has a 97% cure rate for Hepatitis C .She was told she would need a new liver to survive, but with this new medication her liver is healing. Sorry I don't have a link but this is a experimental drug and not a whole lot of information is being told about it. When I talk to her next time I'll try to get the name of the medication. I'm hoping that no matter what this child's destiny is that she does not suffer needlessly.

http://blogs.jwatch.org/hiv-id-obse...soon-an-end-to-interferonologists/2013/04/23/

This might be the drug you're thinking of.

 

[K_Z]

There is a good dose of denial mixed up with the religion, anyway.

I thoroughly agree- KZ

But I haven't come across any religions that encourage the belief that brain cells do not die when they're deprived of oxygen or that doctors and their tests must be wrong if they say someone is brain dead or that there is still hope of recovery by fish oil if people have no circulation in their brain.

But that seems to be part of what Jahi's mother is saying. It's not just believing in miracles and believing that brain death doesn't equal real death.

No religions that would approve of life support, anyway - those people who think all medical intervention is a betrayal of faith might be distrustful of neurological exams and scans and think of them as the devil's ways of tricking them but they would likely be vehemently opposed to keeping people on ventilators as well so I don't suppose Jahi's family belongs to any of those sects.

Snipped for space/ focus.

It's been reported in several sources that Jahi's body is being cared for in a Catholic facility, and it appears some members of the Catholic church have been welcoming and providing a sort of "religious shelter". NW has stated vaguely that she is "Christian", but has not, AFAIK, identified any specific religious denomination, and has not identified a specific church, or a pastor as her spiritual advisor.

http://sanfrancisco.cbslocal.com/20...rganization-lawyer-to-sue-hospital-spokesman/

And both Dr. Paul Byrne and Kansas, MO area Bishop Robert Finn worked together on the plan to transfer Jahi's body.

http://catholickey.org/2014/01/09/jahi-mcmath-sometimes-things-are-not-as-they-seem/

Specifically the request that now came to me from Dr. Byrne was to help locate a doctor – an ENT, Ear, Nose, Throat, specialist – who would be licensed in California and who could perform a tracheotomy, so that Jahi could then be transported to a chronic care facility. One or more such facilities were ready to receive her. Money had been raised to transport Jahi. I started praying, and I also made several calls to friends in California to try to assist the family in caring for their loved child.

What is interesting to me about that plan is that the Vatican and the Catholic Church have long established positions that brain death is death. So this plan, brokered by a prominent Bishop, would appear to be in direct opposition to mainstream Catholic beliefs and practices.

The National Catholic Bioethics Center said as much:

http://www.nbcbayarea.com/news/loca...-Jahi-McMath-With-Jesus-Christ-239314591.html

An East Coast Catholic group is using the "tragic situation" of Jahi McMath to give the organization a chance to say that faith and science are not at odds here, and in this case, the 13-year-old Oakland girl is dead.

"This is a very tragic case but in the face of death, the Church proclaims that Jesus Christ has won the victory over death," the National Catholic Bioethics Center said Tuesday on its website. "And [Jahi's mother] has the obligation to comfort those who mourn with the sure and certain hope of the resurrection of the dead. We offer our prayers for all who have been so profoundly affected by this tragic event."

So, I'm curious how it is that a facility founded on Catholic principles would be reconciling/ justifying the continued futile treatment for a person declared brain dead several times by prominent doctors, and the court system, and given a death certificate? The only thing that potentially makes sense to me, is that perhaps the justification is that they are not "treating" Jahi McMath, but "ministering" to the spiritual and psychological distress of the mother, by maintaining the body of her dead child. Mercy? Shelter? I don't know. The maintenance of the physical body which is dead, seems to be in direct opposition to well-established Catholic philosophy.

I understand that any group, religious or otherwise, can have members who are in opposition to principles held by the group. But this situation goes beyond simply holding "ideas" that might be in opposition-- this is a prominent Bishop.

It's very concerning and confusing that any "real", licensed, and regulated health care facility would engage in accepting someone brain dead for perpetual care. That is quite different than caring for a brain dead loved on in a private home situation.

It is also very puzzling to me that Catholic Bioethics groups, and Catholic treatises from the Vatican on death, brain death, and end of life, are in such opposition to what appears to be sanctioned and hosted in a Catholic facility.

I'm just not sure how to interpret that divergence, from a medical perspective, OR a religious perspective, and I wonder about how the ethical concerns or conflicts of the bedside staff in that facility are being handled. (Both those caring for Jahi's body, and those who are not involved.)

It would seem that everyone, and especially caregivers, in contact with NW and her family would have to be talking from the same script, using the same language, promoting her (false) hope, encouraging her impressions that Jahi is "alive". That seems a little fairytale-ish to me, and I'm concerned about the ethics of that for any licensed health professionals. For instance, when Jahi's body has a spinal cord mediated reflex, are they encouraging NW to interpret that as purposeful movement? A sign of improvement? It's all very surreal.