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#JahiMcMath: Could her case change how California determines death?

Nailah Winkfield, Christopher Dolan, Brian Franklin, Jahi McMath

By Matthias Gafni–Contra Costa Times



Dolan, a San Rafael resident who has gained newfound prominence as the attorney for Jahi’s family, hopes to mount what may be the nation’s first challenge to a law linking end of life to brain death.

Families — not hospitals, judges or governments — should decide when treatment stops on a loved one, Dolan argues. And if a family believes life stops when the heart stops, based on religious beliefs, a government should not have the power to interfere with their constitutional right to practice those beliefs.


California’s Health and Safety Code 7180 is states that an individual who has sustained “irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” But citing their religious faith, Jahi’s family has insisted she is not dead, noting she continues to breathe and her heart beats with the help of machines.


“This is a hot area because there’s a lot of growing interest in religions versus medicine,” said Thaddeus Pope, a law professor at Hamline University School of Law in Saint Paul, Minn.

“If the courts don’t touch it, we will still have a policy vacuum,” said Pope, who maintains a blog on end-of-life legal cases.

Dolan points to Alameda County Superior Court Judge Evelio Grillo’s granting of a temporary restraining order in the Jahi case as a legal framework for future California cases. The court ordered Children’s Hospital Oakland to keep Jahi on a ventilator while the family searched for a facility that would accept the body and continue measures to sustain a heartbeat. The hospital and family reached an agreement to remove Jahi from the hospital, and she was moved to an undisclosed location on Jan. 5. A federal lawsuit lost its urgency once that occurred, but is still pending.

Grillo’s ruling was “the first time in a California court there’s a written opinion that parental rights exist following the issuance of brain death,” Dolan said.

To challenge the state’s death laws, Jahi’s family would have to amend their federal lawsuit to ask for relief, such as a court declaration about the hospital’s conduct regarding its refusal to recognize a religious exception, and a prohibition against doing it again. So far, the family has been reluctant to give Dolan the go-ahead to continue the court battle.

“Our main objective was to remove Jahi and get her someplace where she can be cared for and loved,” Jahi’s uncle Omari Sealey said recently. “Right now, we haven’t talked about changing the law.”


“If (the government) decides when life ends, they also might try to decide when life begins,” the pro-choice attorney said, alluding to abortion rights.

Pope called Dolan’s constitutional arguments a “long shot” but possible, given that New Jersey and New York have clauses in their laws allowing families with religious beliefs to use cardiopulmonary death instead of brain death to determine the end of a loved one’s life. However, those religious options were added through legislation, not the courts. Pope stressed Jahi’s family would need to prove their religion believes death occurs when the heart stops beating.

Dolan said his clients are very religious, although the precise nature of their beliefs has not been detailed. Jahi’s mother, Nailah Winkfield, wrote in a court declaration: “I believe in God and that he can heal all. God created Jahi — he can save her.”

But UC Berkeley Boalt Hall law Professor Emeritus Marjorie Shultz, who specializes in medical ethics, said the family’s personal religious beliefs cannot compel a hospital to abide.

“The thing that might have weight is our knowledge of the brain is still quite limited and we have a tendency to confuse what we can measure as a fact,” she said. However, Shultz said it would likely take the Legislature to craft a similar law to those in New Jersey or New York to make any real change.

Dolan’s other two legal arguments involve the Federal Rehabilitation Act, saying hospitals that receive federal funds cannot discriminate against disabled people, as well as the Americans with Disabilities Act. Dolan said Jahi’s medical state put her into that category.

Pope called these arguments “close to frivolous,” considering state law deems Jahi deceased, not disabled. He said Dolan’s efforts to date have already created some “dangerous” legal history with Grillo’s restraining order rulings.

“It’s not precedent in rights under California law, but it definitely is precedent for all other parents knowing that they can probably get a few more weeks extra time by going to the court system,” Pope said.

Such tactics have already been used elsewhere.

In 2008, a Washington, D.C., children’s hospital asked a judge to allow them to remove a 12-year-old brain-dead boy from his ventilator. Doctors said the Orthodox Jewish boy’s brain ceased to function after he failed to regain consciousness following brain cancer surgery. However, the religious beliefs of Motl Brody’s family held that life ended when the heart stopped beating; in that case, the family did not consent to the hospital performing additional brain-death tests.

“(The parents) understood that once he was really brain dead there wasn’t any reason to transfer him to New York. They understood what was going on, but from a religious perspective their son was not dead,” said Jeffrey Zuckerman, a Washington, D.C., attorney who represented the family. “They wanted to let him die according to Jewish law.”

With a court hearing looming, his other organs began to fail and attorneys from both sides jointly agreed to call the judge to cancel further legal proceedings, Zuckerman said. Days later, Motl’s heart stopped as he lay in his hospital bed.

In 2004, Utah parents fought to keep their 6-year-old son, Jesse Koochin, on a ventilator after his bout with brain cancer left him brain dead. A judge ordered him released from the hospital to his parents’ care, and his heart stopped about three weeks later.


“You would have a lot of chaos if it were up to each individual to determine death,” she said. “So many things flow from that determination.”


“It’s a very important, significant legal debate that has been started,” Dolan said, “but not concluded.”

Jahi McMath’s legal case could impact state law. Here are similar cases involving brain death from around the country:

  • In 2004, Utah parents fought to keep their brain-dead 6-year-old son, Jesse Koochin, on a ventilator at his hospital after his bout with brain cancer. A judge ordered him released from his hospital to his parents’ care; his heart stopped about three weeks later.
  • In 2006, a Kansas family received a temporary injunction to keep 2-year-old Brett Shively Jr. on a ventilator after a drowning accident led doctors to declare him brain dead. The family would not consent to approve the final brain-death test, and a judge ruled that physicians must treat him as a live patient. The hospital agreed to release the boy to his family but appealed the judge’s decision because it believed the ruling set a dangerous standard. An appellate court reversed the lower court’s decision. It’s unclear how long Brett remained on the ventilator.
  • In 2009, 22-year-old Christian Lanciano overdosed on heroin and was declared brain dead by a West Virginia hospital. Lanciano’s mother sought and was granted a restraining order to prevent the hospital from removing her son’s ventilator. She dropped her legal fight and allowed doctors to remove his ventilator once she was convinced of the diagnosis.


So, in other words Chris Dolan is using a brain dead teenager’s grieving family to benefit himself. Shameful.

Los Angeles Times Op-Ed: Chris Dolan #JahiMcmath Family Attorney


Picture via la times




For the most part, those who have attacked Jahi’s family argue these simplistic, uninformed points: The family is either stupid, misled by their lawyer or trying to exploit the system. Why can’t they simply accept the doctors’ decrees? Why should they be different?

What happened to Jahi at Children’s Hospital Oakland will most likely be a matter of litigation. But if you were Jahi’s mother, would you want the doctors and hospital authorities you believed had contributed to — or even caused — your child to be declared “brain dead” making final decisions about her?

Over my legal objections, Nailah Winkfield was cruelly made to go to the Alameda County Registrar of Births and Death to get a “death certificate” in order to move Jahi out of the hospital to a site where she could receive care. It required the intervention of the coroner because, at first, even the official at the agency didn’t want to issue the certificate — after all, Jahi was connected to a ventilator and her heart was still beating.

Those who condemn Jahi’s family appear to have no idea that doctor-decreed “brain death” is not sufficient as a declaration of death everywhere in the United States.

In New Jersey and New York, for example, there is accommodation for those who do not accept “brain death” as the appropriate criterion. According to New Jersey law, “the death of an individual shall not be declared upon the basis of neurological criteria … when such a declaration would violate the personal religious beliefs or moral convictions of that individual.” The McMath family’s position isn’t ridiculous or unheard of. There would have been no legal battle if Jahi had had her tonsils out in New Jersey.

And the rush to abrogate Nailah and Jahi’s constitutional rights is as reprehensible as the widespread ignorance about the limits of “brain death.” These rights include the 1st Amendment right to freedom of expression of religion, and the 4th and 14th amendment rights to privacy and personal liberty.

Those who attack Nailah’s decision and who are “pro-choice” on the issue of abortion should think hard about the fallout from their insistence that the family’s personal and private decision about when life ends can and should be overridden by doctors or the state. The same rights that support the choice made by Nailah also support contraceptive rights and abortion rights.

Nailah has eloquently made her own case: “That’s my daughter; I love her,” she told me. “As long as she is fighting, and God has her heart beating, I will fight with and for her. She needs some time, God needs some time; I’ve seen what medicine has done, now I want to see what God can do.”

Nailah’s fight is the fight of a loving mother for her child. It is a fight for privacy in the making of a medical decision. It is a fight for a strongly held belief in the miracles and mercy promised by the Bible.

If any among her critics share her faith, how could they call her ignorant or ridiculous for actually believing in the power and mercy of God? If they would have made a different decision, then right-on, they are Americans and they get to make their own choice.

Jahi McMath’s family are brave, loving, honorable hardworking people. They are not fools. They know the odds. They want time, free from the threats of the hospital to pull the plug. They want Jahi to be somewhere where people care for her and do not call her “the body.”

Trust me, they will happily disappear from the public spotlight — if you will let them.

Christopher Dolan is an attorney in private practice in San Francisco and Oakland.

Copyright © 2014, Los Angeles Times


Apparently the people (Some are respected Drs who specialize in Neurology and medical ethics, others are nurses who have worked in an ICU for years) who think it’s cruel to leave this 13-year old brain dead child on machines are “Self-righteous?” Chris Dolan get that ego in check sir. No one said the family is stupid. They are mis-lead by people like you, The Shivo family, and Dr. Paul Bryne. You guys keep the hope alive that somehow Jahi will suddenly wake up. It’s safe to say, she never will. My question for you is how do you feel getting famous off the suffering and grief of Jahi’s family?

The Family of #JahiMcMath expecting a Miracle?

We know Jahi Mcmath’s family believes she’ll suddenly wake up and God will heal her, but are they expecting a resurrection? I came across a tweet from Jahi’s uncle which made me wonder- They have to accept she’s dead if they expect a resurrection.


Romans 8:11 talks about the resurrection of Christ. I’m just sayin.

Meanwhile Chris Dolan, lawyer continues to be an attention whore-


#JahiMcMath Court Documents


Pic Via NBC Bay Area

I was curious about what the court documents revealed about Jahi’s condition, the arguments to keep her alive, and the relationship between Children’s Hospital Oakland and Jahi’s family. So, I went searching and found quite a bit to read and try to understand. In between the complicated legal language, the TRO’s, independent evaluations, and judgments, I found out a few things-

  1. Children’s Hospital Oakland bent over backwards, forwards, and did flips for the family
  2.  Jahi’s family seems to think God will heal her and suddenly she’ll wake up and ask for a burger.
  3.  Jahi met the legal criteria for death via  California Health & Safety Codes 7180, 7181, and 1254.4
  4.  6 doctors total (5 CHO Drs. and Dr. Fisher) examined Jahi.
  5. The affidavit from Jahi’s mother has painted the Chief of Neurology (Dr. Durand) as an angry guy
  6. The family contends CHO refused to release Jahi’s medical records. The court ordered the hospital to release them.
  7. The Drs at CHO refused to insert a feeding tube despite the demands of Jahi’s mother
  8. On December 24th- The court recognized the findings of Dr. Paul Fisher, a neurologist with Lucile Packard Children’s Hospital
  9. The court denied the family’s request for Dr. Bryne because he isn’t a licensed Dr. in the state of Ca and CHO would be violating their licensing if they allowed him to examine Jahi. Dr Bryne is not a neurologist, has no experience being a neurologist, and is a Neonatologist. Dr. Bryne cannot give an objective opinion because he has already stated without examining her that she “isn’t dead” http://www.renewamerica.com/columns/byrne/131224
  10. Link December 24th court documents- https://www.dropbox.com/s/uvixhdnld5plii0/13.12.24%20McMath%20proceeding.pdf
  11. Link “McMath Exhibits” (warning 93 pages) https://www.dropbox.com/s/wk54l44beni6xr2/McMath_EXHIBITS_1_of_2-1.pdf
  12. Link to the Children’s Hospital Oakland “Ethics findings” https://www.dropbox.com/s/v3l1zmriml9vmgf/2.pdf
  13. According to court documents Jahi’s family provided suctioning while in the ICU, and reported Jahi asked for a Popsicle. (unknown if she actually ate a Popsicle or anything else.)

The Complicated Struggle To Understand “Brain Death” #JahiMcMath


Pic via The Daily Mail

The very recent and emotional case of Jahi McMath has gotten international news. A 13-year-old 8th grader goes into Children’s Hospital in Oakland, California to have surgery on her tonsils and surrounding tissue to help with her sleep apnea. The surgery goes well and she wakes up in the ICU. (I’ll get to that in a few) Suddenly she starts to bleed out of her nose and mouth and passes out before the nurses call the Dr. (According to the family. The hospital can’t comment on that stuff because of Federal HIPAA laws) They do a CT scan and determine she has brain swelling and ultimately her brain is no longer functioning.


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