Dec. 23, 2015: In this file photo, a photo of Jahi McMath is shown on a video screen next to her uncle Timothy Whisenton at a news conference in San Francisco. (AP)
A Northern California family fighting to have their daughter's death certificate revoked has won the backing of a retired neurosurgeon who is a longtime critic of how brain death is classified.
Jahi McMath was declared brain dead after a 2013 tonsillectomy went awry. McMath’s mother, Nailah Winkfield, previously acknowledged that her daughter suffered severe and irreparable brain damage, but said her Christian beliefs compel to her to continue fighting to keep the teen on life support.
In court documents filed last month, Dr. Alan Shewmon, a professor emeritus of pediatrics and neurology at UCLA, said videos of the teen taken between 2014 and 2016 prove that McMath is alive, and that her condition is improving.
“Jahi’s subsequent course defied all predictions of what must happen to dead bodies maintained indefinitely on ventilators,” Dr. Shewmon said in his filing. “Jahi McMath is a living, severely disabled young lady, who currently fulfills neither the standard diagnostic guidelines for brain death nor California’s statutory definition of death.”
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While a judge is expected to issue a decision in the coming weeks, several doctors have cautioned that brain-dead patients retain the ability to twitch and move slightly. Lawyers for Children’s Hospital in Oakland, where McMath was declared brain dead, said the family’s attorneys have declined to turn over the most recent clips of the teen. They argue that most videos viewed by the legal team are taken with McMath under blankets, making it difficult to tell whether outside factors are manipulating movements.
“Often the camera only shows a convenient angle, such as a close up of her foot or hand,” Jennifer Still, a hospital lawyer, wrote in a July 6 filing.
In 2014, the family gained custody of McMath, who was classified by Children’s Hospital officials and the Alameda County coroner as a corpse, and moved her to an undisclosed location in New Jersey. The state is the only one in the U.S. with a law that prohibits doctors from removing brain-dead patients from ventilators over families’ religious objections, the San Francisco Chronical reported.
Winkfield’s 2015 malpractice lawsuit against the hospital and state claims the coroner wrongly declared the teen dead. If the court overturns the death certificate, the family could move the teen back to California and seek medical care. On Monday, Still told the Associated Press that the family has not subjected McMath to tests accepted by the American Medical Association to determine whether someone is brain dead.
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The judge’s ruling will come after the world watched Charlie Gard’s case playout in the U.K. courts. Charlie’s parents, Chris Gard and Connie Yates, had been fighting to bring their terminally ill son to the U.S. for an experimental medical treatment. But on Monday, an attorney told London’s High Court that it was too late for the 11-month-old to receive treatment after medical tests revealed irreversible muscular damage.
“As Charlie’s devoted and loving parents we have decided that it’s no longer in Charlie’s best interest to pursue treatment and we will let our son go and be with the angels,” Yates told the court.
Charlie was born Aug. 4, 2016, and diagnosed with Mitochondrial DNA depletion syndrome. He suffered brain damage and is unable to breathe on his own. His parents had been in a legal battle with doctors at Great Ormond Street Hospital where doctors argued treating the child would cause him pain.
"There has never been any proof that he was and we still don't think that he's in pain or suffering to this day," Yates said in court on Monday.
"Having said that, we have decided to let our son go and that's for one reason and one reason only. It is because the prospect of improvement is unfortunately now too low for Charlie," she added.
The Associated Press contributed to this report.