Guilt or innocence. Damages, and if so, how much. And, in capital cases, even life or death.

Juries across America are called on to make the most difficult of decisions.

And soon, one in California likely will be tasked with deciding whether Jahi McMath, for whom a death certificate was issued several years ago, is alive.

After all, she responds to questions by moving her hands and feet, and she answers her mother with a squeeze of her hand.

The London Daily Mail reported a hearing is scheduled in court in California March 18, and a trial is expected to be held later.

The 13-year-old girl has been on a ventilator for four years since something went wrong during a tonsillectomy in 2013, and doctors declared her dead.

Even though a death certificate was issued, the Mail reports, mother Nailah Winkfield refused to take her daughter off life support.

She launched the still-developing battle to have the death certificate rescinded.

WND reported when a judge ruled, stunningly, evidence indicated the death certificate should not have been issued, and a jury would have to decide.

There’s a malpractice case pending against the hospital, and whether or not McMath is alive impacts the case.

‘Intermittently responsive’

An expert testified in court in the case that the girl still is alive.

In 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.”

Besides impacting the outcome of a malpractice case, a ruling that the girl is alive would mean the family to return Jahi to California where her care would be mandated.

Her family concedes she’s seriously and irreparably damaged but argues against calling her dead.

The same issue has arisen in another case.

WND reported 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.

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.”



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