Legal History of the Jahi McMath Case

GUEST ENTRY by VenomousFeminist!

T&T is fortunate to have one of our readers, VenomousFeminist, a California attorney, explain the court documents and rulings in the Jahi McMath case. I have verified that VenomousFeminist is a real attorney, licensed with the California State Bar. Sprocket.

Prior stories: 
01/01/14 Jahi's Legacy - by CaliGirl9
01/03/14 The Long, Sad Death of Jahi McMath - by CaliGirl9
01/05/14 Jahi McMath: Merely Dead, or Really Most Sincerely Dead? - by KZ
01/10/14 Jahi McMath: A Body in Limbo - by Sprocket

LEGAL HISTORY OF THE JAHI MCMATH CASE
by VenomousFeminist

There has been a lot of confusion about the court proceedings in the Jahi McMath case, and a number of questions as to why Judge Grillo extended the initial temporary restraining order (TRO) out to January 7,  nearly 3 weeks after the initial  TRO was granted.  I think part of the confusion is that this case has been heard now in three separate courts – the Alameda County Superior Court (state trial court), the First (Second? – the pleading captions vary) Appellate District Court (state sppeals court) and the District Court of California (federal trial court).  Let me see if I can sum up the actions that have occurred in each court, and their outcomes, thus far, to help clarify why the extensions were granted, and by which court.  I’m not going to address CHO’s response unless someone is unclear on their position and specifically asks for clarification, nor am I going to address the merits of the arguments made.

Alameda County Superior Court (incorrectly identified as “Oakland County” by Petitioner in one pleading):

12/20/13 Hearing – ex parte hearing on initial request for Temporary Restraining Order (ex parte means the requesting party doesn’t have to give advance notice to the other side, and can have a hearing without the opposing party present, something that is usually not allowed.  The court disallowed the ex parte request and requested CHO to submit a response prior to the hearing) [Winkfield v. Children’s Hospital Oakland Exhibits Part 1, filed 12/30/13 pgs. 8-74]:

On 12/20/13, Jahi McMath’s family (Plaintiff or Petitioner) filed a request for a Temporary Restraining Order (TRO) and a request for a court order to force the hospital to provide medical treatment for Jahi.  Specifically, the request asks the court for an order to prohibit the Children’s Hospital of Oakland (CHO) from discontinuing ventilation (this is a temporary request initially, with the further request that after the hospital has a chance to respond, it be made permanent), and further asks the court to order the hospital to provide a feeding tube, antibiotics and any other medicines that would support organ function.  At this time, the Petitioner’s court documents describe Jahi as in a comatose condition with brain damage.  They also ask for time to get another opinion on treatment and prognosis for Jahi.

There are three main arguments advanced by petitioner in this document:

• 1. California law gives the McMath family the right to make medical decisions for their minor child, including the decision to continue ventilation, and if the hospital and family can’t agree, the hospital must make arrangements to transfer the patient (Jahi) to a facility that will provide the requested treatment.  Petitioners cite various provisions of the California Probate Code to support these arguments.

• 2. There must be evidence that withdrawing life support is in the best interests of the patient or in compliance with their wishes, that when the patient can’t decide for herself, a family member can make that decision, and when the patient’s wishes are unknown, California law errs on the side of preserving life.  A number of California appellate cases are cited to support these contentions.  None of these cases involve brain dead individuals.

• 3. CHO has a conflict of interest, and shouldn’t be able to benefit by turning off the ventilator because by doing so, they limit their potential damages in a malpractice action.  Interestingly, they state on pg.  25, line 8, “[h]er daughter died . . .”  No statutes or case law are cited to support this argument.

The cases cited in this petition generally detail legal precedent, in the form of California case law, to make decisions in favor of sustaining life-support in cases where the patient’s wishes are unknown, and in giving parents the right to make medical decisions for their children.  (Note, I haven’t read all of these cases, I’m going off what is represented in the court documents, and the quotes of the cases themselves.)  None of the cases cited by petitioners involve patients who have been declared brain dead.

Along with the petition for the TRO, the plaintiff filed a proposed order (this is typical practice), which the court chose NOT to sign.   Typically the court will either sign the proposed order, or have one of the attorneys draft an order for his/her signature.  There’s an image of the areas of the proposed order with items crossed out in the above link that I find quite interesting.  The court in the signed order, declined to order medical treatment as requested by the McMath family, and declined to find that all the facts and allegations in the petition were true and correct.  There are other deletions on the proposed order that are worth looking at as well to get an idea of how limited in scope this initial TRO actually was. (pgs. 46-47) 

What the court does order is for CHO to maintain the status quo (i.e. ventilation) until an independent determination of brain death can be made.  The court does NOT order that the hospital leave Jahi hooked up to a ventilator indefinitely, nor will it order additional treatment for Jahi.  Essentially, what the court does is say, yes, there is a presumption towards preserving life in CA, so let’s get an independent expert in here to resolve the issue of brain death so there’s no question about it on appeal.  A status conference is set for 12/23/13 so the parties can pick an expert.  This is a “win” for petitioner only in that it buys them time to get their own expert – Paul Bryne – before the court. 

12/23 Hearing – Alameda Superior Court (pgs. 76-93 of the above link)

Petitioners request that Paul Bryne is appointed as the independent expert to determine brain death, despite the fact that he’s not licensed to practice medicine in California.  They also ask again for a permanent order to prohibit the hospital from removing ventilator support, and for an order requiring the hospital to insert a feeding tube and provide additional medical care as requested by the McMath family. 

The arguments advanced in this document are as follows:

• 1. California allows patients to determine their own medical care, and if they can’t, their family can decide for them.  This argument, and much of the case law, is simply recycled from the first brief.  Again, none of the cases deal specifically with brain death.

• 2.    Latasha Winkfield has a Constitutional right to make health care decisions for her child and force medical providers to comply with her requests.  No statutory or case law is cited to support this argument.

Again the cases cited in this brief deal with California legal precedent, in the form of case law, that supports the right of an individual to determine medical treatment for him/herself.  In fact, the cases cited in this second brief are largely identical to the cases cited in the original brief. 

The court again orders “status quo” until December 30 and appoints Dr. Fisher as the independent expert, which is a huge loss for Petitioner as they were really focusing on getting a feeding tube in place and in granting Jahi’s mom unlimited decision making power over Jahi’s future medical care. A hearing is set for the following day so they can go over Dr. Fisher’s report.  Petitioner’s request to appoint Dr. Bryne is denied. (Modified TRO12/23/13 )

12/24/13 Hearing – Alameda Superior Court

The court issued a written order detailing the reasoning for its findings.  This is typical when it is expected that such an order will be appealed.    (Winkfiled v. Children's Hospital Oakland, Exhibits Part 2, filed 12/30/13 pgs. 60 of 77 through end)

The court denies the Petitioner’s request for continued ventilation and for decision making authority (essentially being able to require the hospital to provide requested medical treatments, such as a feeding tube).  This order also gives some insight into the information provided to the court at the various closed-door hearings.

Judge Grillo admits that while the statute doesn’t specifically require that one of the two physicians making a finding of brain death be unaffiliated with the hospital, because of the allegation of conflict of interest raised in the initial brief, he decided to order a third evaluation for brain death by a doctor unaffiliated with CHO. 

The hearing on December 24 was again a closed door hearing (the closed door nature of the hearings, and the sealing of the medical records admitted into evidence, was at the request of Petitioners) where the findings of Dr. Fisher were addressed, and testimony by one of the CHO doctors who originally made the finding of brain death was heard.  It should be noted that the court states “petitioner’s counsel stipulated that Dr. Fisher conducted the brain death examination and made his brain death diagnosis in accord with accepted medical standards.”  Basically, Mr. Dolan agreed that the determination of death complied with California law.

There was a slight kerfuffle when Mr. Dolan requested a continuance so he could review Jahi’s medical records (which he had recently received) with his expert witness, which was denied by the court on the grounds that it wouldn’t be relevant to the issue of whether the brain death determination was legally sufficient.  This issue reappears later.

The court, at 5 p.m. on Christmas Eve denied the Petitioner’s motion, and dissolved the TRO effective on December 30.  The reason the TRO remained in effect until December 30 was to allow the parties time to file an appeal, which the Petitioner did.

State Court of Appeals

12/30/13 – Petitioners file an appeal to the State Court of Appeals.  (Writ petition)
The Petitioners request to extend the trial court’s order keeping the ventilator on while their appeal of that order is pending.   As part of this request to extend the TRO, the court documents allege there is a facility in New York (probably New Beginnings) that is ready to take Jahi and treat her, and that there is an examining doctor who indicates that Jahi is not suffering from irreversible brain damage. 

The second part, the actual grounds on which the lower court order is appealed, is based on the following arguments:

• 1. The law allowing the hospital to discontinue respiratory support after a finding of brain death violates Petitioners’ rights to freedom of religion and to privacy under the California Constitution.  The analysis of this argument is basically the same as was alleged in Petitionerss briefs to the lower court – an individual’s right to privacy guarantees them the right to make their own health care decisions – the new argument is that turning off the ventilator and refusing to insert a feeding tube would violate the religious beliefs of the Petitioners.  The case law cited is again virtually identical to that cited in the lower court briefs.  There is no case law cited to support the argument that turning off the ventilator would violate the Petitioner’s religious beliefs.

• 2.  It was a violation of the Petitioners’ Due Process rights for the trial court to deny Mr. Dolan a continuance to allow time to review medical records.   There is case law cited which generally states what is considered to be due process.  (I did tell you this issue would come back up.)

Thus far, there has been no further action on the appeal that I am aware of.  In light of Jahi having been moved out of CHO, it is likely the appeal will be considered moot (no longer at issue).

District Court of California

12/30/13 – At the same time that the appeal is filed in the California court of appeals to overturn the lower court ruling denying the request to continue ventilator support and to place a feeding tube, Petitioner also filed a federal lawsuit alleging violation of civil rights and various federal laws which apply to persons with disabilities and again requests a order to keep the vent on and to order a feeding tube.  (Federal lawsuit alleging violation of civil rights)

Since this is essentially a complaint, a statement of fact which also says various laws have been violated, there is no case law required . None of the causes of actions (laws that were violated) are substantially different from what has previously been addressed.  The Petitioners’ position has remained consistent – put in a feeding tube, keep the vent on, and allow Petitioner to dictate what medical procedures will be performed by CHO. 

(As an aside, this complaint refers to privacy rights as being granted by the 4th Amendment.  While the 4th Amendment does grant the right to be free from unreasonable search and seizure, the privacy rights being addressed here are typically recognized under the 1st Amendment.  This isn’t really relevant to the legitimacy of the underlying argument, but it’s more evidence of the sloppiness and tortured logic seen throughout Plaintiff’s pleadings).

On December 20, 2013, the district court issued a written ruling in reply that grants part of the request, and denies part.  The court outright denied the request to insert a feeding tube, and set a hearing on the issue of whether ventilation should be continued.  That effectively extended the right to keep Jahi on the ventilator until that 1/7/17 hearing.  Basically, the order mirrors the state trial court order to maintain the status quo until both sides can be heard. 

As we know, this 1/7/14 hearing never happened because Jahi was transferred out of CHO per a mediated agreement before the hearing could happen.  As a result, the TRO was denied, and the underlying case mooted. 

- VenomousFeminist