Doctor holding stethoscope

A mother is suing California, charging state laws allowed employees at a Los Angeles hospital to turn off her son’s life support and let him die, even though he had shown signs of life.

The non-profit Pacific Justice Institute has filed its opening brief with a federal appeals court on behalf of Jonee Fonseca and the Life Legal Defense Foundation.

The dispute centers on a diagnosis of PVS, persistent vegetative state, in which a patient is comatose but still shows signs of life. The hospital turned off life support for 2-year-old Israel Stinson because a death certificate had been issued.

The case follows by only months a ruling in a similar case in California that allowed a malpractice lawsuit against a hospital to move forward even though a death certificate had been issued for teenager Jahi McMath.

In the Stinson case, the brief filing with the 9th U.S. Circuit Court of Appeals concedes the boy is dead.

“No human power can call him back to life,” the filing states. “But his dignity can be reclaimed, his family’s fundamental rights to self-determination restored, and the statues that provided authority for the taking of his life rescinded.”

The complaint challenges the application of the state’s Uniform Determination of Death Act by Kaiser, arguing the boy “continued to show signs of life and responded to his mother’s voice and touch.”

He had suffered an asthma attack early in 2016 and doctors pronounced him dead. His mother kept him on life support, and when doctors sought to disconnect him, she moved him to Guatemala for treatment.

There, according to the complaint, he “remained biological alive with a chance of recovery.”

“In the late summer of 2016, Israel’s family was led to believe he could receive treatment at Children’s Hospital of Los Angeles and brought him back to the United States. But when the hospital learned that the state had issued a death certificate months earlier, they sought to terminate life support. The hospital would not permit an independent examination by an eminent doctor from UCLA who was prepared to assist the family,” Pacific Justice said.

The boy was moved to Kaiser, and then the hospital obtained permission to disconnect him from life support. Even as “an attorney frantically raced to the Second District Court of Appeals,” he was cut off from life support.

“As that attorney was handing a clerk his credit card to process payment for an appeal and request for stay, the hospital forcibly removed life support and the child expired.”

PJI then represented Israel’s mother in her challenge to the constitutionality of state laws that take away life-and-death decisions from parents.

A federal court in Sacramento dismissed the case, holding that the state cannot be held responsible for its determination-of-death laws, because doctors have “broad and legitimate discretion” to end patients’ life support, PJI said.

“What happened to our client was every parent’s worst nightmare. To see her son fighting for life while two different hospitals fought – and ultimately succeeded – in ending his life was an excruciating and unimaginable horror. This should never happen to another family, and that’s why we are challenging the state laws that facilitated this deprivation of life without due process. Doctors do not have broad discretion to end patients’ lives without their consent,” PJI said.

To be resolved, the appeal states, are questions over the deprivation of life and liberty in violation of due process, deprivation of parental rights, deprivation of life and  privacy violations.

“To the extent physicians are currently permitted to act as both judge and executioner, due process demands they be restrained,” the filing explains.

While the boy was in Guatemala, physicians ran two EEG tests and “found that Israel was neither biologically nor brain dead.” But when he was returned to the U.S., his condition deteriorated again, and physicians used those circumstances to obtain an order to let him die.

The complaint seeks a determination that the California law “falls below the constitutional minimum for safeguarding life, asking the court to “prevent the same tragedy from striking other families,” the filing states.

‘Intermittently responsive’

In the McMath case, an expert testified in court that the girl, for whom a death certificate had been issued, still was alive.

WND reported McMath suffered complications following a routine tonsillectomy in late 2013 and was declared brain dead.

During 2017, her family submitted court filings declaring she had been on life support in an undisclosed location the past few years, meaning she was 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, provided 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.'”

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.”





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