Judge: Girl declared dead … technically alive!

A California judge's ruling that a girl who was declared dead might technically still be alive is allowing a malpractice lawsuit against a hospital to move forward.

WND has reported the case of Jahi McMath, who suffered complications following a routine tonsillectomy in late 2013 and was declared brain dead.

This summer, her family submitted court filings declaring she's been on life support in an undisclosed location the past few years, meaning she's alive.

The documents included testimony from Dr. Alan Shewman, professor emeritus of pediatrics and neurology at the David Geffen School of Medicine at UCLA, whose declaration with the Superior Court in Alameda County, California, provides 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 apnea – 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."

Now the Los Angeles Times is reporting a judge has ruled the girl technically may still be alive.

It was Alameda County Judge Stephen Pulido who found that a jury must be the decision-maker to determine whether Jahi McMath is alive.

At issue are the possible damages assessed in the family's malpractice claim.

Awards in California are capped at $250,00 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 family sued Children's Hospital in Oakland after the girl went in for a tonsillectomy in December 2013 and ended up comatose.

She was pronounced dead after the surgery and a death certificate was issued by the Alameda County coroner in January 2014.

The family, however, refused to concede. They fought for permission to move Jahi to their own location in New Jersey.

Shewman's testimony cited videos from the family, which have been analyzed by forensic experts, in which the girl appears to respond to instructions to move a finger.

He concluded 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," he said.

The doctor further testified 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.

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

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