'Dead' girl responds to instructions to move finger

Jahi McMath

In what undoubtedly would be a first in the medical world, a family has asked that a death certificate for their 13-year-old daughter be reversed, and a neurosurgeon is supporting their request.

The case involves Jahi McMath, who suffered complications following a routine tonsillectomy in late 2013, and was declared brain dead.

On life support, she was moved to an undisclosed location by her family, and now court filings reveal the stunning claim that she's no longer dead.

Dr. Alan Shewman, professor emeritus of pediatrics and neurology at the David Geffen School of Medicine at UCLA, has filed a declaration with the Superior Court in Alameda County, California, providing the details.

"There is no question that in December 2013 at Oakland Children's Hospital, Jahi McMath fulfilled the widely accepted pediatric guidelines for determining brain death (hereinafter referred to simply as the Guidelines), as well as the adult guidelines," he wrote in the court statement, "both regarded as the accepted medical standards.

"There is equally no question in my mind that she no longer does, for the single reason that the first of the 'three cardinal findings in brain death,' – coma, absence of brainstem reflexes, and apena – is not fulfilled. Rather, she is intermittently responsive, placing her in the category of 'minimally conscious state.'"

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He continued, "The change took place round the spring of 2014, when Jahi's family members began to suspect that she sometimes seemed to respond to commands. When I first heard of this through the news media, I was as skeptical as everyone else, assuming that they were mistaking spinal reflexes or myoclonus (involuntary quick jerks) for voluntary movements.

"Because of my research interest in the phenomenon of chronic brain death, I contacted Jahi's family through her attorney, Christopher Dolan," said the doctor, who verified he has not and is not charging the family for any of his consultations.

"Realizing that no one was likely to believe them about Jahi's intermittent responsiveness, the family began making video recordings of what they believed to be responses to simple commands. They gradually formed the impression that Jahi's responsiveness tended to occur when her heart rate was above 80 beats per minute, and hardly ever when it was slower – suggesting the possibility of some sort of inner state differentiation, with responsiveness more likely during the more aroused state."

He said the videos, which have been subjected to expert forensic video analysis and "contain no evidence of post-recording alteration," show varying commands and the following movements.

He emphasized that, "Most of the non-myoclonic movements bear no resemblance to any kind of reflex or spontaneous spinal cord-generated movements ever reported to occur in spinal cord injury patients below the level of the lesion."

The conclusions he reached:

"There is a very strong correspondence between the body part requested and the next body part that moves. This cannot reasonably be explained by chance."

And, "There is a very strong correspondence between the laterality of the body part requested and the laterality of the next body part that moves."

He described one incident: "In 'jahi thumbs up.3gp,' made on 10.30.2014, Jahi's aunt asks her to put her thumb up; 10 seconds later there is a slight myoclonic jerk of the left third finger and a pair of slight myoclonic flexion jerks of the left thumb. Her aunt tries to encourage her by saying, 'I see you moving. Try to put it up,' and a second later the left thumb makes a non-myoclonic (total duration 1 second) flexion movement, with simultaneous slight pronation of the left forearm and slight movement of the second finger toward thumb. The aunt says, 'I see you trying, honey. You just moved your thumb. Can you up it up?' With a bit of further coaxing, 14 seconds later the left thumb extends upward with a non-myoclonic movement.

"Taken together, the video evidence indicates, beyond any reasonable doubt, that the slower, more deliberate-looking non-myoclonic movements are in fact not independent of the commands, ruling out some hitherto unknown type of spinal automatism. There is clearly a causal relationship, indicating that at the times the videos were made, Jahi was in a responsive state, capable of understanding a verbal command and barely capable of executing a simple motor response.

"Jahi McMath is a living, severely disabled young lady, who currently fulfills neither the standard diagnostic guidelines for brain death nor California's statutory definition of death," he wrote.

While the San Francisco Chronicle explains the doctor's opinion is that she will always be significantly impaired, the family's efforts could have an effect.

"Nailah Winkfield, Jahi's mother, sued the hospital and state and Alameda County officials in December 2015, alleging medical malpractice. Her suit says the county coroner wrongly declared Jahi dead. If the courts reverse the death certificate, Winkfield could arrange to have Jahi receive medical care in California – something that can't happen if she is legally dead," the report said.

"Ultimately, if Jahi is reclassified as alive, the family could be entitled to millions of dollars in damages. Awards are capped in California at $250,000 for the wrongful death of a child, but there is no cap for wrongful-injury claims because a court can order medical costs to be paid indefinitely," the newspaper said.

He also points out graphically, that her body, as a teen girl, continues to develop.

"Corpses do not menstruate or develop sexually," he wrote.

The newspaper reported lawyers for the hospital say the girl was properly declared dead, and the family's claim is not supported in law or logic.

"The core issue is whether or not she is clinically brain dead and meets the standard definition of brain death," David Magnus, a Stanford University medical professor, told the paper.

He said if Jahi does respond, "It means what people believe they know about brain death based on decades of experience and evidence would turn out to be false."

"It's an unprecedented case," Lawrence Nelson, a lawyer, bioethicist and associate professor of philosophy at Santa Clara University told the paper. "Either you are alive or you are not. If you are alive, but you are very badly brain damaged, you are a person and have moral and legal rights. If you are not alive, then you have none of those rights. Whether or not Jahi is alive or dead is huge and fundamental."

At the time of the surgery, even the media was referring to Jahi as "her body."

But even then, WND reported that there were questions about the hospital's declaration of brain death.

It was at that time that the chief of a foundation that is responsible for the International Standard Version of the Holy Bible, a trained theologian, who said Jahi's family had a legitimate argument against the hospital's contention that she is "brain-dead" and her medical treatments should be halted.

Dr. William Welty, a Ph.D. who graduated from Trinity Evangelical Divinity School and later taught New Testament Greek at Simon Greenleaf University, told Christopher Dolan, an attorney representing the family of Jahi McMath, that he could be an expert witness on death according to the Bible, in an email that was made available to WND.

He explained, "As I am an expert in biblical theology, including Greek and Hebrew, with respect to the question of what evangelical Christians believe about death, I might be able to be of assistance in the way of providing expert testimony about what the conservative biblical tradition to which Ms. McMath's mother belongs actually teaches, which is that death is defined not as absence of brain waves but rather the lack of a circulating blood supply.

"As the Bible states that the life of the flesh is in the blood (citing Leviticus in the Hebrew Scriptures) and not in brain wave activity, perhaps a compromise stipulation could be presented to ask the court to order that if Ms. McMath is disconnected from life support, if her heart continues to beat on its own that she should be maintained by fluid nutrition at the hospital's expense, given that the hospital's negligence is the proximate cause of this difficulty."

Welty told WND that the Bible doesn't define death as a cessation, reduction or absence of brain activity.

It defines life as being in the blood, and "as a closely held religious belief," the family of the 13-year-old has a right to practice their faith.

He said while science contends that it understands death, and life, and the narrow divide, he pointed out a recent report that indicates that may not be so clear.

The stories follow the pattern set in the years-long battle for the life of Terri Schiavo, which went to the highest levels of the U.S. court system and through the halls of the legislature.

She was incapacitated physically and mentally when she suddenly collapsed in her home, and her husband successfully moved in the courts to have her deprived of fluids and nutrients so that she would die.

There now exists a foundation bearing her name, Terri Schiavo Life & Hope Network, which has worked to intervene in other cases in which patients have been described as "vegetative."

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