Jahi McMath Update: Lawyer Asks Judge to Reverse Finding That Girl is Dead

Update, 8:45 a.m. Friday: The lawyer representing Jahi McMath and her family invited reporters to his Market Street office on Thursday. The purpose: to see some of the evidence attorney Christopher Dolan says proves "irrefutably" that the Oakland teenager, declared dead last year because doctors said all brain function had ceased, is not in fact brain dead.

Here's how the Oakland Tribune's David DeBolt describes Dolan's presentation:

Two brief videos, shown on TV screens at Dolan's Market Street office, were filmed within the past month with family, Dolan and neurologists looking on, Dolan said. He insisted they were not doctored in any way and didn't allow reporters or photographers to videotape the event. ...

... In the first video Dolan showed Thursday, Jahi, who has been on various machines giving her nutrients and oxygen since December, is shown on a hospital bed with signs posted one wall. Her toenails are painted. Except for her head and feet, she is covered in blankets. Her mother, Nailah Winkfield, is at her side and asks Jahi to move her foot.

"Kick your foot Jahi," Winkfield said. "Move your foot. Come on, Jahi, we are watching. I see you wiggling your toes. Come on, Jahi you can do it. Try your hardest. I see you move your toes."

About 40 seconds later, her right foot twists upward.

"Very good Jahi. I'm proud of you," her mother can be heard saying.

In a second video, Jahi's hand moves four seconds after her mother asks her to move it and then it moves for a second time after Winkfield asks her to move it harder. Then the camera zooms out to show Winkfield standing by Jahi, whose eyes are closed. The video is about 40 seconds long.

And here's an account from the San Francisco Chronicle's Matier and Ross:

Dolan, on a speaker phone with Philip DeFina, chairman and CEO of the International Brain Research Foundation in New Jersey, said researchers had conducted brain imaging and other tests on Jahi at Rutgers University with the assistance of medical school neurologist Charles Prestigiacomo and found she had measurable brain activity.

“If the brain is dead, there is no electrical activity,” DeFina said.

Stanford bioethics Professor David McManus, who has not seen the video showing Jahi’s movements or DeFina’s findings, disputed the validity of any test that wasn’t an independent clinical exam conducted by a qualified neurologist.

“I haven’t seen any signs or evidence that they have had such an evaluation,” he said. “The rest is smoke and mirrors.”

McManus added, “Patients (found brain dead) don’t recover — it’s irreversible. That would be groundbreaking, and a dramatic finding that would be problematic for the entire neurological community.’’

Original post (Thursday): Jahi McMath, the Oakland teenager who has been kept on mechanical support since being declared brain-dead last year, is back in the news. The lawyer representing her family has filed a petition with an Oakland judge claiming he has "irrefutable evidence that Jahi is no longer brain-dead" and demanding the judge reverse his finding that she's deceased.

Alameda County Superior Court Judge Evelio Grillo issued his finding last December after doctors at UCSF Benioff Children's Hospital Oakland and a court-appointed neurologist all found that the girl was brain-dead. McMath had undergone surgery to correct obstructive sleep apnea and suffered hemorrhaging that interrupted the flow of oxygen to her brain.

McMath's family went to court to stop Children's Hospital from removing the teenager from a ventilator. Although Grillo had declared McMath dead, the family was allowed to remove her from the hospital. She has been in a New Jersey hospital since then and the subject of periodic reports from her family that she has shown signs of life.

In his petition filed earlier this week (embedded below), McMath family attorney Christopher Dolan argued that McMath no longer meets the definition of brain death under California law -- "irreversible cessation of all functions of the entire brain, including the brain stem."

Petitioner is in possession of current evidence, including MRI evidence of the integrity of the brain structure, electrical activity in her brain as demonstrated by EEG, the onset of menarche (her entering into puberty as evidenced by the beginning of menstruation) and response to audible commands, given by both her mother and an attending physician, demonstrating that Jahi McMath's brain death was not irreversible.

Dolan also offers an explanation for why the court-appointed neurologist, Dr. Paul Graham Fisher of Stanford, determined the girl was brain-dead. The lawyer suggests that McMath "demonstrated evidence of brain death due to the swelling of her brain following the traumatic events that led to her suffering a loss of oxygen to her brain."

Dolan argues that the court has both the jurisdiction and responsibility to reverse its death declaration.

A brief from UCSF Benioff Children's Hospital Oakland doesn't address Dolan's purported medical evidence but argues that the court's final judgment in the case "is not subject to reversal, review, reconsideration re-opening or collateral attack." Grillo has scheduled a hearing on Dolan's petition for next Thursday, Oct. 9.

The Oakland Tribune's David DeBolt and Kristin J. Bender produced an excellent report on the case Thursday. Dolan and medical experts agree on one thing: the situation he's describing is unprecedented:

"It's the only case of its kind ever," Dolan said by phone Wednesday. "Jahi is 'Patient 1.' This is a real person we are talking about, a live person who feels pain. She isn't suffering." ...

... Arthur Caplan, director of the division of medical ethics at New York University's School of Medicine, said any recovery from brain death would be a first and in this case "miraculous since she was declared dead three times."

"This would force us to re-examine the whole nature of death in America," Caplan said. "But I don't believe it."

Dolan said his experts who have evaluated Jahi and will testify in court are "certified neurologists, pediatric neurologists and a prominent world expert on brain death." He wouldn't name the experts and they aren't named in court papers, though Dolan said he plans to file the experts' declarations in court Friday.