Jahi McMath: Could her case change how California determines death?

If Christopher Dolan gets his way, the Jahi McMath case may change how California determines when death occurs.

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.

Nailah Winkfield, center, mother of Jahi McMath, attends a court hearing with the family's attorney, Christopher Dolan, left, in Oakland, Calif., on Dec. 23, 2013. (Kristopher Skinner/Bay Area News Group) ( Kristopher Skinner )

It's a daunting fight in an arena with no legal precedent. Experts say it is possible that the case of the 13-year-old Oakland girl, declared brain dead after tonsil, throat and nose surgeries to relieve her sleep apnea, will set new rules.

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.

Other cases around the country involving families of brain-dead patients have provided brief courtroom bursts, but no firm judgments.

"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."

But Dolan insists there is an important constitutional principle to be established about the rights of parents to make health care decisions, as well as limits on government meddling.

"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.

Giving families the power to declare death could have significant ramifications, Shultz said.

"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."

But Dolan believes the issue needs to be settled, and soon.

"It's a very important, significant legal debate that has been started," Dolan said, "but not concluded."

Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.