Posted on January 8, 2014 at 5:24 PM
With the onslaught of media coverage of the Jahi McMath case it is time for a public debate on whether or not the loss of upper and lower brain function should determine death. Brain death is the cessation of any brain activity in the upper brain as well as the lower brain or brain stem. The McMath case should be distinguished from the Terri Schiavo case where only upper brain function was in question. Ms. Schiavo was not determined to be brain dead, but rather a living person in a persistent vegetative state.
Brain death is established by numerous objective tests, not based upon any subjective diagnoses of physicians. These tests are performed to verify the death of upper and lower brain activity. The conclusion of a number of physicians specializing in neurology, as well as an independent neurologist named by the court, is that Jahi McMath is brain dead. This means that if artificial ventilation is removed there will be no breathing, no circulation, no beating heart. Detailed comprehensive, neurologic and physiologic tests have demonstrated that Jahi McMath is brain dead. Continued effort to maintain artificial ventilation in someone who is brain dead is not in actuality “life” support, but rather mechanically inflating and deflating lungs and maintaining the appearance of a living body. Most importantly, this conclusion has not been disputed or challenged by the family or by their lawyer.
The media has fanned the flames of misunderstanding and misplaced passions and has exploited this misperception as well as the dignity of Jahi McMath. This exploitation has resulted in donations of significant money to support these indignities and victimization of the family. After receiving $50,000 in donations to maintain a bogus image of life, what else can the family do at this point? They have apparently found some medical facility willing to perform a tracheostomy and insert a feeding tube into this poor girl’s dead body. This is not the first time that desperation has been exploited for financial gain.
This entire and unfortunate escapade may and probably will have further consequences by motivating others to pursue the same fruitless course of action. Indeed, many may feel guilty for not pursuing ongoing ventilation of dead bodies of their loved ones.
The family’s attorney, Christopher Dolan, argues that the hospital does not have a right to remove “life” support without the family’s consent or without “judicial scrutiny.” This matter was brought before Judge Evelio Grillo of the Alameda County Superior Court in California. He listened to the testimony of the physicians from Children’s Hospital of Oakland and appointed an independent neurologist to examine Jahi McMath. All testified that their determination of death was based on the objective criteria of brain death. The court, nevertheless, refused to grant the hospital’s petition to remove the ventilator. In doing so the court failed to put an end to this unfortunate controversy. Now, my fear is that some families may feel compelled to do the same, to seek out “medical” facilities that will exploit grieving families by taking their money to pump air into dead bodies.
Christopher Dolan, the attorney for the family, is doing a disservice to the family. He has not challenged the court’s determination of brain death. If he believed there was any evidence to dispute the findings he would have put on expert testimony to the contrary. He was not able to find anyone, doctor or not, to dispute or even question the findings of the other physicians. Nor has he sought an appeal disputing the findings that Jahi McMath is in fact dead. So, what is he doing in the middle of this fabricated dilemma? There is no legal process supporting his representation of the family and thus his appearances on television shows and press conferences are not the work of an attorney but rather of another person exploiting the dignity of Jahi McMath, and the desperation of her family, for what seems to be notoriety. His actual legal expertise would be useful in evaluating any basis for a medical malpractice wrongful death case for causing Jahi McMath’s death. That might provide some benefit in avoiding this horror happening to someone else’s child. At least then he would be doing the work of an attorney. Instead his conduct has embarrassed the legal profession, made a mockery of the medical profession and fueled fund raising efforts for a contrived cause.