Jahi McMath: Media links only ***NO DISCUSSION***

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"Following last week's demurrer by Defendant Rosen, this week, Children's Hospital Oakland filed its own demurrer in the medical malpractice action filed by the family of Jahi McMath.
"Almost the entire brief is devoted to the question of her status as alive or dead."
June 29: http://medicalfutility.blogspot.com/ June 29

---To get 'newly' filed doc (65 pages)-filed by Hospital on June 19,
click on "own demurrer" in above paragraph.

---To get 'newly' filed doc (76 pages) filed by Dr. Rosen, also filed June 19, click on item one entry underneath "own demurrer" on Prof. Pope's website.

Prof Pope's other site w info for various cases.
See 2014 Med. Futility Cases, Winkfield v Rosen & Childrens Hospital, et al
 
In response to a question a commenter posed, Prof Pope answered:
"There have NEVER been a legal (or clinical) determination that someone CORRECTLY diagnosed as dead is no longer dead. That is what makes this case POTENTIALLY historic and interesting."

From yesterday's blog entry:
"...the family's lawsuit seeks future medical expenses, they are alleging that Jahi is still alive. The defendants' demurrers deny this and argue against re-litigating the determination of death.

"The hearing on the demurrers is set for July 30. Consequently, the McMath family's opposition is due by Friday, July 17 (9 court days before the hearing). That opposition brief should reveal both (a) whether they intend to re-litigate the determination of death, and (b) why they think that is warranted."


http://medicalfutility.blogspot.com/ July 2, 2015
 
A commenter 'Anonymous' on Prof Pope's blog poses 2 medico-legal questions to him July 3

"... DC ...line 24: informant's name: Nailah Winkfield. Is there any "conflict" in the fact that she is the "informer" of the death and now, so many months later, changing her mind about the validity of her report/information?"
and
"...WHO declared the death?....imho, pending investigation should be the MOD (as it is so listed) but there WAS a COD when the brain death was declared. Again, imho, lines 112 & 113 again in section COD are NOT completed with accurate information. TIA for evaluating these thoughts."

Prof Pope responds, July 4:
"Thank you for these comments. As a health law professor, my focus has been on the treatment of living patients. I have had very little contact with death certificates. I must learn more about the standard of care (the professional custom) with which they are completed."

https://www.blogger.com/comment.g?blogID=165916407932834077&postID=3392472999607853956

ETA: Click on image of D/Cert image in above post to enlarge for detail and lines discussed.
 
... a 'Case Management' document filed July 8, stating:
"Jahi finally coded and her heart stopped. Defendants contend she was pronounced clinically brain dead.* Plaintiffs contend Jahi suffered severe brain damage but does not currently meet the definition of clinical brain death."

* ^This refs to Dec. 2013 heart stop. Quote from Case Management Statement link, at bottom of page 1, then p 2, & addendum p.

From blog:
Can this question be re-litigated? If so, can plaintiffs actually prove what they contend? If so, this would be the first case EVER in which a patient CORRECTLY diagnosed as dead is no longer dead."
http://medicalfutility.blogspot.com/ July 18.


Not sure if there is anything new of substance in this doc, could be missing it, that prompted the new blog entry. Maybe just the fact that a new doc was filed? IDK.
 
http://medicalfutility.blogspot.com/ July 21

"On Friday, the family of Jahi McMath filed its opposition to the demurrers of the medical provider defendants. In its brief, the family states two remarkable things:

1. "Plaintiffs allege, and will present proof of changes and developments which show that Jahi's condition is one in which Jahi has brain function and is indeed a living person."

 2. "To this date, Jahi continues to receive 24/7 nursing care in New Jersey, pursuant to her eligibility in that state for participation in the New Jersey Medicaid Program."

Spears v. Rosen (Alameda Cty. July 17, 2015) (Opposition to demurrer)

Also here for anyone looking for some heavy duty reading - links to doc's filed w court proceedings re Jahi:
http://thaddeuspope.com/jahimcmath.html.
 
Spears v. Rosen (Alameda Cty. July 17, 2015) (Opposition to demurrer)
From ^ Plaintiff's Memo of Points & Authorities, ...Opposing Demurrer, 32 pp

p. 14 of e-doc, lines 14-15
"Recent evaluations by doctors including a board certified pediatric neurologist... confirm...Jahi...does not meet the definition of brain death." bbm
If filing has attachments of test results for ^, I am missing them. "Recent" but no dates and no doctor names.
(Sorry, cannot copy & paste from doc, such a crummy typist cannot type lengthy excerpts.)

p. 24 of e-doc = declaration of atty, attesting that attached letters are true and correct copies, from NJ DHS ruling Jahi as eligible for services, for diagnosis: 348.1, Damage, Anoxic Brain. Letters are dated:
- Jan 2, 2015 ..... nursing services
- Jan 14.............. home private duty nursing, Jan 14-Mar 14
- Feb 23............. home dur. med equip., chest compression gen system. 10 visits
- Mar 24 ........... home private duty nurse, Mar 15 - May 11
- June 10 .......... home private duty nurse, June 10- July 10, 24 hr/day, 7 days/wk.

ETA:
After blog entry, there are few comments discussing -
- possibility of Medicaid fraud.
- NJ law vs CA law, basically arguing Jahi was moved from CA to NJ, specifically b/c of NJ's BD law so she could receive, but that does not mean CA has to recognize her as being alive. If CA ct is not required to rec as 'alive,' claims in lawsuit which depend on Jahi being alive cannot be found valid and allow recovery for personal injury.
 
http://medicalfutility.blogspot.com/ July 30
"Alameda County Superior Court Judge Freedman issued the following tentative ruling on on the demurrer to the Jahi McMath medical malpractice action on which there will be a hearing this afternoon.
"This is a direct copy and paste from the court's website, except that I made the text blue and added some paragraph breaks."

 This Tentative Ruling is made by Judge Robert B. Freedman On the Demurrer to Complaint by Defendant Frederick S. Rosen, M.D. ("Dr. Rosen"), filed on June 16, 2015, COUNSEL ARE TO APPEAR, in person or by CourtCall, at the hearing at 2:00 p.m. on July 30, 2015. The hearing will take place in Department 16, instead of Department 20, which is on the third floor of the Administration Building, 1221 Oak Street, Oakland. This is solely a location change for this hearing (at which Judge Freedman will preside) and not a reassignment.

(1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer, but wants counsel to address the collateral estoppel argument in more detail at the hearing, as set forth in the court's accompanying tentative ruling on the demurrer by Dr. Rosen.

(2) The court is inclined to drop the motion to strike the allegation as to "medical, nursing and other related expenses in the future" (Complaint, ¶ 36) as moot in light of whatever ruling the court makes on the demurrer to the First Cause of Action.

(3) The court will address the motion to strike the language "n the event that it is determined Jahi McMath succumbed" (Complaint, ¶ 44), and whether it is necessary to have a successor in interest or personal representative pursue a malpractice claim on Jahi's behalf, in the context of its determination as to the First Cause of Action.

(4) The court intends to grant the motion to strike the inclusion of Marvin Winkfield as a plaintiff on the wrongful death cause of action as unopposed.

 (1) As to the demurrer to the First Cause of Action for personal injuries on behalf of Jahi McMath ("Jahi"), the court is inclined to sustain the demurrer but wants counsel to address the collateral estoppel argument in more detail at the hearing, including (among other things) the following:

(a) Aside from their arguments that there are "new facts or changed circumstances" and that "the public policies underlying collateral estoppel" should preclude its application here, do the plaintiffs contend that any of the traditional criteria for application of the doctrine has not been established here? Plaintiffs' argument in section B of the opposition memorandum is vague in this regard. It appears to the court, based solely on the text of the Amended Order of January 2, 2014 in Case No. RP13-707598 ("Amended Order"), that is a proper subject of judicial notice, that "the issue sought to be precluded from relitigation ... [is] identical to that decided in a former proceeding." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) More specifically, the Amended Order expressly states that the "issues in this case as presented by the petitioner necessarily required the court to reach the threshold issue of whether petitioner's daughter was legally dead." (Amended Order, p. 3, n. 2.) "The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.) It also appears from the face of the Amended Order that the "issue [was] actually litigated in the former proceeding" and that it was "necessarily decided in the former proceeding." (Lucido, supra, at p. 342; Amended Order, pp. 1-19.) It also appears from the matters of judicial notice that "the decision in the former proceeding [is] final and on the merits" (Lucido, supra, at p. 342), as it resulted in a "Final Judgment Denying Petition for Medical Treatment," filed on January 17, 2014, as to which there is no evidence or argument that it is the subject of a pending appeal or should otherwise be considered non-final. Finally, there appears to be no dispute that the "party against whom preclusion is sought" - Jahi McMath - is "the same as, or in privity with, the party to the former proceeding," which was brought by Latasha Winkfield (a plaintiff herein) as Jahi's mother. (Amended Order, p. 1; Final Judgment, p. 1; Lucido, supra, at p. 342.)

(b) Aside from the order and judgment in the prior case, there is also an official death certificate issued by the County of Alameda, of which Dr. Rosen has requested judicial notice. The court believes this is a proper subject of judicial notice, as the matter sought to be noticed is not a fact such as the time or cause of death but the very fact that there has been an official determination of death and that a death certificate has been issued. Neither side has devoted much attention to the significance of the issuance of the death certificate on the standing of an individual (declared dead in the certificate) to bring a lawsuit. Is there any applicable authority? (Cf. C.C.P. § 377.32(c) [person seeking to commence an action as successor in interest to a decedent must file a declaration attaching a "certified copy of the decedent's death certificate."])

(c) As to the argument about "new facts or changed circumstances," neither side has cited authority that the court finds particularly analogous or instructive as applied here. The court is not persuaded, for example, that Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754, or Jessica C. (2001) 93 Cal.App.4th 1027, 1038, provides a useful analogy, as those cases involved juvenile dependency or review proceedings in which a court is tasked to consider the circumstances existing at the time of the later proceeding and in which there was new evidence as to alleged molestation. Here, while plaintiffs allege that "[r]ecent evaluations by doctors, including a board certified pediatric neurologist, confirm that Jahi does not meet the definition of brain death" (Complaint, ¶ 26), are such allegations in themselves sufficient to reopen a factual issue determined in a judicial proceeding and official death certificate? Does either side have additional analogous authority in this regard?

(d) If the court were to sustain the demurrer with leave to amend, what additional factual allegations would Jahi be able to include that could affect the application of collateral estoppel to the issue of whether she is legally alive so as to have individual standing?

(e) If the court sustains the demurrer to Jahi's cause of action, the court is inclined to grant leave to amend to allow a similar cause of action to be pleaded by Jahi's successor in interest or personal representative. (See C.C.P. § 377.30 et seq.) (2) As to Dr. Rosen's demurrer to the Second Cause of Action for negligent infliction of emotional distress, the court is inclined to SUSTAIN the demurrer, pursuant to C.C.P. § 430.10(e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action against Dr. Rosen on such a theory, including allegations that the plaintiffs were "present at the scene of the injury-producing event at the time it occur[red] and [were] then aware that it [was] causing injury to the victim...." (Bird v. Saenz (2002) 28 Cal.4th 910, 915; Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) As in Bird, "plaintiffs cannot prevail on a claim for NIED based solely on the" allegedly negligent surgery performed by Dr. Rosen, as "no plaintiff was present in the operating room at the time that event occurred." (Bird, supra, 28 Cal.4th at p. 916.) To the extent that the "injury-producing event" was Dr. Rosen's failure to "diagnose and treat" Jahi's medical condition after the surgery, plaintiffs do not have sufficient factual allegations that they "meaningfully ... perceived any such failure" on the part of Dr. Rosen as distinguished from the acts and omissions of Children's Hospital Oakland ("CHO") nurses and other personnel. (Cf. Bird, supra, 28 Cal.4th at p. 917.)

 
http://www.sfgate.com/bayarea/article/Part-of-Jahi-McMath-family-s-lawsuit-against-6415877.php

An Alameda County judge says he’s inclined to dismiss part of a medical-negligence lawsuit by the family of Jahi McMath, the Oakland girl who underwent surgery for sleep apnea and then was declared brain-dead after suffering cardiac arrest.
In a tentative ruling Wednesday, Superior Court Judge Robert Freedman did not address the issue of whether surgeon Frederick Rosen or UCSF Benioff Children’s Hospital Oakland were negligent in diagnosing and operating on the then-13-year-old girl in December 2013. But Freedman said Jahi’s parents could not prove their claim of negligent infliction of emotional distress because they were not in the operating room when the allegedly botched surgery occurred.
Freedman also said he was inclined to dismiss a part of the suit that was filed in Jahi’s name, because the county coroner issued a death certificate three days after the operation. The certificate was found to be valid in a January 2014 court ruling that denied the family’s request for further medical treatment.
 
http://www.santacruzsentinel.com/ge...other-speaks-on-legal-battle-over-brain-death

Jahi McMath rests in a bedroom in New Jersey with Hello Kitty posters on the wall, her name in glittery letters over her bed, next to Bible scriptures. The room, as described by her mother this week, is like that of many other teen girls — except Jahi is not like any teenage girl in this country.

By medical standards established decades ago, 13-year-old Jahi is dead, having suffered irreversible brain death after a surgery gone wrong at an Oakland hospital in December 2013. Yet her family firmly rejects the diagnosis to this day — and now, a year and a half after they fled the state that insisted on disconnecting Jahi from a ventilator and feeding tube, they are desperate to bring her home.

....

Jahi, since this time last year, has shared a two-bedroom apartment in Somerset, New Jersey with her mother, her stepfather, Marvin Winkfield, and her 6-year-old sister, Jordyn. Jahi spends her days with Beyonce playing on her iPod, a TV on in the background, and calls from relatives and friends, who are put on speaker phone next to her bed, her family said. Her mother said that Jahi has no bed sores or illnesses and that her vital organs are still functioning.

But she is hooked to a ventilator and fed through a tube. The family contends she sometimes responds to verbal commands to move her limbs, though some experts have dismissed this, saying the movements are spontaneous.
 
The legal impediment for Jahi's family is "collateral estoppel," the principle that a person cannot continue to relitigate the same issue.
Click to expand...

"If life does go on, hypothetically, as improbable as it may seem, and Jahi walks in and says, 'Hi, I'm here,' what should the court do?"

Attorney Karen Sparks, who represents Children's Hospital, said Jahi's case fell under the Uniform Determination of Death Act, which was created to set guidelines for cases where death was not as clear cut.

"If the plaintiff walks in and talks to the court, we are actually in a different ballgame because we no longer would use the UDDA," Sparks said. "(If she walked in,) we don't have to go to a neurologist to determine brain function."
Click to expand...

Recent court documents indicate Jahi currently receives nursing care through New Jersey's Medicaid program.
Click to expand...
http://www.mercurynews.com/crime-co...ruling-judge-rules-against-jahis-family-civil
 
http://medicalfutility.blogspot.com/2015/07/jahi-mcmath-courts-tentative-ruling.html
This Tentative Ruling is made by Judge Robert B. Freedman On the Demurrer to Complaint by Defendant Frederick S. Rosen, M.D. ("Dr. Rosen"), filed on June 16, 2015, COUNSEL ARE TO APPEAR, in person or by CourtCall, at the hearing at 2:00 p.m. on July 30, 2015. The hearing will take place in Department 16, instead of Department 20, which is on the third floor of the Administration Building, 1221 Oak Street, Oakland. This is solely a location change for this hearing (at which Judge Freedman will preside) and not a reassignment.

Thaddeus Pope now has Jahi documents as a separate page:
http://www.thaddeuspope.com/jahimcmath.html
 
Not sure if this was posted:
ABSTRACT A 13-year-old patient named Jahi McMath was determined to be dead by neurologic criteria following cardiopulmonary arrest and resuscitation at a hospital in Oakland, California. Her family did not agree that she was dead and refused to allow her ventilator to be removed. The family's attorney stated in the media that families, rather than physicians, should decide whether patients are dead and argued in the courts that the families' constitutional rights of religion and privacy would be violated otherwise. Ultimately, a judge agreed that the patient was dead in keeping with California law, but the constitutional issue was undecided. The patient was then transferred to a hospital in New Jersey, a state whose laws allow families to require on religious grounds that death be determined by cardiopulmonary criteria. Although cases such as this are uncommon, they demonstrate public confusion about the concept of neurologic death and the rejection of this concept by some families. The confusion may be caused in part by a lack of uniformity in state laws regarding the legal basis of death, as reflected in the differences between New Jersey and California statutes. Families who reject the determination of death by neurologic criteria on religious grounds should be given reasonable accommodation in all states, but society should not pay for costly treatments for patients who meet these criteria unless the state requires it, as only New Jersey does. Laws that give physicians the right to determine death by neurologic criteria in other states probably can survive a constitutional challenge. Physicians and hospitals faced with similar cases in the future should follow state laws and work through the courts if necessary.
Click to expand...

The Uncommon Case of Jahi McMath - ResearchGate. Available from: http://www.researchgate.net/publication/274642465_The_Uncommon_Case_of_Jahi_McMath [accessed Aug 10, 2015].
 
Not Jahi McMath, but case of 20 y/o Aden Hailu &brain death. (Mods- if this should be elsewhere, pls move)

Ap 1 ........ she went to ER, had exploratory surgery, while in OR had cardiac arrest.
Ap 16 ...... was declared dead per Nevada statute's brain death definition (Uniform Determination of Death Act)
____ ....... Father filed in ct , seeking order to have hosp continue care & certain treatments.
July 30 .... after hearing w non-treating doc's testimony, ct ruled hosp did not have to cont care, but w stay, allowing Father time to appeal to Nev. Sup Ct.
Aug 6....... Nev Sup Ct issued order that hosp shall not terminate, withhold, or withdraw treatment, pending resolution re thi appeal.

Aug 12 .... Professor Pope's blog entry, http://medicalfutility.blogspot.com/2015/08/nevada-supreme-court-orders.html

"I will summarize the case shortly. Here is the front page of the order [dated Aug 6]. Initial court filings are here."

 
"Mom says boy declared brain dead is actually 'fighting for his life'"

"The mother of a 13-year-old boy declared brain dead on Sunday said she still wants treatment for her son though he failed to respond to series of neurological tests Tuesday. Michael "Mikey" Lavecchia III was pronounced brain dead at 11:55 a.m. Sunday at St. Joseph's Regional Medical Center."
http://www.nj.com/passaic-county/in..._declared_brain_dead_fighting_for_his_li.html Aug 18 & 19

Interesting to me, in light of brain death def: Mother wants son transferred to a NY med facility from NJ hospital.
 
Sept 4 follow up story to Aug 15 crash & brain death finding, but no real development, jmo.

"Mom searches for ‘next step’ to help boy on life support after Route 80 crash"

"....LaVecchia [mother of boy] said she has been in contact with the International Brain Research Foundation, a Flanders-based organization that has received criticism from some medical quarters for conducting expensive experimental treatments on people in persistent vegetative states or prolonged comas.

"Philip DeFina, the clinical psychologist who serves as the chief scientific officer of the foundation, has argued in general that more sophisticated testing of brain trauma victims is needed before doctors declare that any damage is irreversible. He has not commented on the LaVecchia case."

http://www.northjersey.com/news/mot...ys-he-s-still-showing-signs-of-life-1.1403496 Sept 3 & 4. Thx to http://medicalfutility.blogspot.com/ Sept 4 entry for above link.
 
http://medicalfutility.blogspot.com/ Fri. Sept 11
"The hospital has just filed its Answering Brief in the Aden Hailu case before the Supreme Court of Nevada.
"In short, a few weeks back, a Nevada trial court found that Hailu was dead as of nearly five months ago (April 2015). But due to a series of stipulations and court stays, Hailu remains on physiological support at Saint Mary's Regional Medical Center...."
"This is appellate review of a fact issue determination. Therefore, the Supreme Court must affirm, so long as the trial court's finding is supported by substantial evidence. Here, the trial court's finding of death is supported not only by "substantial" evidence but by the overwhelming weight of the evidence."
http://thaddeuspope.com/braindeath.html
Determination of Death by Neurological Criteria,
4. Court Cases
Courts Grant TROs to Families (other laws & cases here too).

A link to the 46 page brief itself, filed w ct Sept 9.
Hailu v. Prime Healthcare (Nev. Sept. 9, 2015) (answering brief)
 
Mother ack's boy's "passing away" ~one month after brain death was originally declared, post-Aug 15 auto crash.

Hospital Maintains Physiological Support on Patient for One Month after Death
"WAYNE — A young boy who suffered profound head injuries in a fatal car accident on I-80 a month ago has died, NorthJersey.com reported.
Mikey LaVecchia III, 13, passed away at Robert Wood Johnson Medical Center in New Brunswick Thursday, his mother, Laureen LaVecchia, told the news site."
http://www.nj.com/passaic-county/in...ly_injured_in_i-80_accident_has_died_rep.html Sept 17-18


Sad, sad, sad. I hope his mother, family, & friends can eventually find peace.

______________________________________________________________________
Once again thanks to http://medicalfutility.blogspot.com/ entry Sept 18






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