OAKLAND -- An attorney for the family of Jahi McMath says new tests show the 13-year-old girl has regained brain activity, and he is asking a Bay Area court to take the unprecedented step of reversing its finding that she is dead.
In court documents filed Tuesday, attorney Christopher Dolan challenges long-standing medical and legal definitions of death on behalf of the Oakland girl, who has been kept on machines that feed her and keep her organs functioning since a medical mishap in December.
Experts say Jahi's recovery would be nothing short of a miracle. Unlike a coma, brain death is the loss of all brain function, an irreversible and universally accepted form of death. Jahi would be the first known person to regain consciousness after a declaration of brain death, experts say.
"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."
In his court filing, Dolan said an MRI, a brain test that records electrical activity of the brain, and Jahi's response to commands from her mother, Nailah Winkfield, are evidence that her brain death was not "irreversible." A test last year performed by a court-appointed physician from Stanford showed no brain activity because of the swelling of her brain, according to the court papers. The swelling has receded, Dolan says, and the new tests show something different.
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. He is asking Alameda County Superior Court Judge Evelio Grillo to hear the petition to reconsider earlier determinations that Jahi has no brain function.
Attorneys for UCSF Benioff Children's Hospital Oakland, where Jahi was first treated, have filed documents asserting that "there are no substantive grounds and no available procedures for any challenge" to the court's finding that Jahi is brain dead.
David Durand, senior vice president and chief medical officer for the hospital, said in a statement Wednesday that while the hospital has had no contact with Jahi's family since she left in January, the staff "extends its heartfelt sympathy for the family."
"We trust that the California courts, the Alameda County coroner and the state of California will evaluate any claims made by the family's attorneys and decide them in a lawful and just manner," Durand said in the statement.
The new court filings are the first major development in Jahi's story in months. She was declared brain dead on Dec. 12, 2013 after a series of operations to remove her tonsils and tissue from her nose and throat at the Oakland hospital. She started bleeding shortly after surgery, eventually going into cardiac arrest.
Three brain activity tests -- including one by an independent physician -- found that Jahi had no brain function. Robert Heidersbach and Robin Shanahan of Children's Hospital Oakland and Paul Graham Fisher of Stanford Hospital -- the three doctors who declared Jahi brain dead -- could not be immediately reached for comment Wednesday.
Jahi continued to receive feeding and breathing support after the diagnosis as her family engaged hospital officials in a legal battle to keep her on organ support in hopes that she would one day wake up.
On Jan. 3, the family and hospital agreed, through a compromise forged in court, that Jahi's mother could remove her from the hospital as long as she took responsibility for the child's care. As part of the agreement, the Alameda County Coroner's Office issued a death certificate, allowing her to be released from the hospital on the condition that when her organs shut down, the family would have to notify the coroner and bring her body back to Oakland.
A request to amend Jahi's death certificate could be a first for the county, and by law would have to amended by the state, according to Alameda County Counsel Donna Ziegler. The California Department of Public Health, which oversees vital records, allows death records to be amended -- but only to correct spelling errors and add information that was not known at the time of death. Changes to the time, place and cause of death have to be performed by a physician or coroner.
Jahi left the Oakland hospital on Jan. 5. For three months, little was known about her whereabouts until reports emerged that the teen was taken to Saint Peter's Children's Hospital in New Brunswick, N.J. She likely went there because a 1991 state law gives patients and their families the right to reject a medical diagnosis of brain death on religious grounds and decide whether to continue organ support.
The family maintains that Jahi responds to voice commands and touch. The new court documents say the teen has entered into puberty and started her menstrual cycle.
An Oct. 9 hearing is set between attorneys for McMath, Children's Hospital and Alameda County.
Dolan called the upcoming court case "the greatest challenge of my legal career."
"I never gave up on this family," said Dolan, the family's attorney since December. "I wouldn't stick my neck out without concrete proof."
David DeBolt and Kristin J. Bender cover breaking news. Follow them at Twitter.com/daviddebolt and Twitter.com/kjbender.