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Will history be made in the Jahi McMath case?

Back a while ago I discussed the case of Jahi McMath, who was diagnosed as having suffered "whole brain death" and for whom a death certificate was issued on that basis.

Here's what I said initially:

Is Jahi alive? I hate to disappoint my readers, but I simply don't know. I am not committed to either side on this empirical matter. On the one hand, it still seems to me possible that there is a genuine condition in which all parts of the brain really do cease to function while the rest of the body is temporarily sustained by ventilator support. On the other hand, my confidence in that proposition has been seriously eroded over the past few years by revelations like those mentioned above concerning temperature regulation, growth, and pain responses. Moreover, the lawyer for Jahi's family claims (without giving details of the evidence) that Jahi's body is regulating its temperature. If true, this is evidence of hypothalamic function. And I'm sorry, but it's simply verbal legerdemain to claim that a person's entire brain has ceased functioning when recognized sub-organs of the brain are continuing to function! Even construing matters in a narrowly legal fashion, by the plain meaning of the Universal Declaration of Death Act, if Jahi's hypothalamus is still functioning, she hasn't suffered whole brain death.
Let me make something else clear: This cannot and will not go on indefinitely. It is not true that a dead body can be sustained forever by a ventilator. Eventually, usually fairly rapidly, the heart stops functioning and cardiac arrest occurs, despite full ventilator life support.

My own opinion is that the longer it takes for that to happen, the more questionable was the original diagnosis. My empirical faith in zombies that live for years with literally zero brain function, including zero brain-stem function, etc., is at an extremely low ebb.

About ten months later, I did a follow-up here, discussing the fact that Jahi's heart did not stop after all that time and the further evidence of brain activity and blood flow to her brain that had emerged.

Now, after more legal maneuvering, her parents are to have their day in court. A judge has allowed evidence to be brought that she is, in fact, biologically alive, which would allow a malpractice case on her behalf to proceed against the hospital in which she originally stopped breathing in connection with a relatively simple surgical procedure. This would allow costs to be recouped for her care.

Bear in mind that we are going on two years since Jahi was declared legally dead! Again, this is simply not supposed to happen. Ventilator support is not supposed to be able to sustain the heartbeat of a body indefinitely after whole brain death has occurred.

The family has submitted to the court a declaration from a neurologist that he has clinically observed Jahi and does not believe that she presently fulfills the criteria for whole brain death in the state of California, which is where she presently is.

A conjecture among several people (see comments here) who have read the statement is that the neurologist in question is Alan Shewmon. The conjecture seems supported by the wording of the statement. This is mildly problematic evidentially, since Shewmon is known to oppose the very existence of "whole brain death" as a category at all, and therefore he might not be considered an unbiased expert witness as to whether Jahi fulfills its criteria. (I don't know why the name of the neurologist is not routinely attached to the brief sent to the court in any event.)

I also note the fact that the statement does not state that Jahi has "failed" (or passed?) various simple bedside tests sometimes used as part of clinical diagnosis for whole brain death such as water in the ear and other reflex tests. I could be wrong, but I'm making a weak argument from silence that, if she no longer fulfilled those easy clinical criteria, it would be mentioned in the brief.

The neurologist's statement places a lot of emphasis upon Jahi's obvious hypothalamic function. The hypothalamus has been a big problem for the entire issue of diagnosing "whole brain death." Jahi would not be the first patient to continue to show hypothalamic function if kept on a ventilator long after the diagnosis of "whole brain death," and there has been a lot of dancing on that matter on the part of advocates of "whole brain death." As in, "Oh, we didn't mean that part of the brain." But the fact remains that the hypothalamus is an organ, integrated with the rest of the body, and if it's functioning, we're not talking about a few disconnected cells here or there.

My impression from Wesley J. Smith is that at this point the case enters a fuller evidentiary stage. The hospital has consistently taken the position that the issue of whether Jahi is alive cannot be revisited once a death certificate has been issued. That cannot be right, either morally or legally, since it is of course possible that a death certificate could be issued in error. The reductio of such a legally positivistic approach would be a situation in which a person on whom there was a death certificate walked through the door and started talking but the court refused to reconsider whether or not he was dead and refused to let him sue the hospital for malpractice in his medical case. Obviously there has to be a mechanism for rectifying errors!

At this point I think the hospital should open the doors to evidence gathering and even offer to pay. After all, if they think Dr. Shewmon is biased, then they should have confidence that a more "mainstream" clinician and neurologist would make a finding on their side. It is entirely possible that the reason that Jahi's family got Shewmon to make the statement (besides the fact that he is licensed to practice in California) was that he is on their side and hence may have been willing to waive a fee. (This is just a conjecture.) The family does not currently have the money to pay for a great many tests. Indeed, it's an open question how they are living at all, much less keeping Jahi on ventilator support. If the hospital wants more tests run to justify their conviction that Jahi is right now clinically dead, they should be willing to pay for those tests and those physicians. If they continue to resist, they only look like they are afraid to face scientific facts and are trying to obscure them.

I want to stress here that some of the people who want Jahi to be found biologically alive are, for want of a better word, bad guys. Bob Truog, whose comment at the Medical Futility blog is in itself completely unobjectionable and who has rightly questioned the ability to diagnose whole brain death reliably, has his own fish to fry. His goal in questioning whole-brain death as a reliable diagnosis is to throw out the dead donor rule and allow vital organs to be taken from all sorts of people whom everyone agrees are alive, including those merely in a long-term unconscious state but who are fully breathing and biologically functioning on their own.

The fact remains, however, that he's right about the trickiness of "death by neurological criteria." It is entirely possible either that a) there is no such biological state as a natural kind to be diagnosed, or b) it is not possible to diagnose such a biological state reliably even if it occurs in some cases.

Jahi McMath may be the one who shows this beyond all shadow of a doubt, since the hospital did not hastily diagnose "whole brain death" in her case. Indeed, a second evaluation was court ordered. If one can be carefully diagnosed according to reasonable criteria at one time and then no longer fulfill those criteria two years later, then either a literal miracle has occurred or there is something wrong with the criteria. If the court ends up agreeing that Jahi is now biologically alive, this will be a first in medical history and could change the medico-legal landscape. It could even change it in the wrong direction, if hospitals, courts, and lawmakers come to agree with Truog that the dead donor rule should be abandoned. (To clarify, as I have before: There was no question of using Jahi's body for organ donation, but the question of diagnosing brain death is relevant to organ donation.)

This is a case with historic significance, and I will be following it with interest.

Comments (6)

The courts, coroner, 3 board certified and very qualified physicians, and the hospital found that Jahi is dead. The family wants to void the findings of all of these professionals for personal gain, it is absolutely their responsibility to pay to prove it!!

They have brought forth evidence, recent evidence, for which presumably they have paid what needed to be paid. (A new MRI was done last year and supported their position.) The hospital will have to decide whether to let that be the only evidence presented! If the hospital doesn't _like_ their evidence and thinks that other tests would give a different conclusion, the hospital definitely needs to pay for those other tests or other people to examine her. Otherwise, presumably, the court and/or jury will decide on the basis of what the parents present. The hospital can't hide its head in the sand anymore and say, "This isn't an open question." That ship has sailed. It is now an open question, and now it's time for each side to present its evidence. And all the hospital has is two years old!

Certainly if I were a judge or jury, I would look askance at the hospital's case if they insisted on standing pat on two-year-old evidence when newer findings have been presented that point in the opposite direction.

The courts, coroner

The same courts and forensics workers that back things like "bite mark analysis."

Actually, I believe the court in the previous case just deferred to the doctors' clinical diagnosis, though the judge did order a second review.

The interesting case here is that I actually do think the hospital tried to do due diligence *by its lights*. That makes this a particularly striking test of whether there is something wrong with the "lights" (that is, the tests for whole brain death).

I can see it now: the hospital and desperate "kill now and worry later" crowd, though completely driven by a secular atheist agenda, claims "all the evidence of life is due to miraculous intervention, and does nothing to disturb the entirely accurate initial conclusion that death had occurred." After another 2 years and final orations in which McMath speaks in her own behalf to the court, the judge rules that the courts have no jurisdiction over miracles, and rules McMath dead.

Won't that be nice?

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