This week, I am going to share an experience with you, one which makes me proud to be a lawyer. It involves a beautiful 13-year-old girl, Jahi McMath, who, following a routine tonsillectomy, began bleeding from her mouth and nose.
The bleeding got worse and worse despite her mother's pleas for help. Eventually, Jahi, because of the loss of blood, had a heart attack. Efforts were then taken to provide blood and blood products in an attempt to increase her blood volume and get oxygen back to her brain. Unfortunately, it was too little, too late. Jahi had suffered hypoxia, a lack of oxygen to the brain. Her brain swelled and she suffered brain damage. Her mother, Nailah, couldn't understand how such a routine operation could have led to such a horrific result. The hospital told Nailah that her daughter was brain dead and that it intended to disconnect the ventilator that was providing oxygen to her still-beating heart. Nailah said no. That's where I came in.
It was the night of Dec. 16 at about 10. I had just finished a trial in a civil-rights case in federal court. I had been up all night the night before preparing my closing argument. I was tired and told my wife I needed a break. Then I got a text.
A friend from Los Angeles said there was a man in the Bay Area claiming his niece was on life support and the hospital was going to pull the plug the next morning. Could I give him a call? The account seemed unbelievable, but I made the call. That's when I met Omari, Jahi's uncle. He was desperate. He told me a bit about Jahi and asked me if I had been watching the news. I said no, since I had been working round the clock. I listened to him, turned on the news and saw that he was a real person with a real crisis.
He said, “They're going to take my niece off life support tomorrow morning at 8:30 — we don't want her to die. Can they do this? Can you help save Jahi?”
There was only one answer: “I'll see what I can do. I will research the law and call you back.”
For the next five hours, I conducted my research, spoke frequently with Omari and then emailed a cease-and-desist letter to Children's Hospital at 3 a.m. It worked, and they didn't pull the plug the next morning.
I first met Nailah that afternoon as we walked into a meeting with the neurologist and doctor from administration. They told Nailah her daughter was brain dead.
Nailah spoke from the deepest part of her soul and said, “I brought her in here for a simple operation, I trusted you. Now you tell me she is dead. I can touch her, she is warm and soft. She is not cold and stiff like death. She smells good and when I rub her feet she pulls away. I know my daughter, she's not dead. She needs time, I need time. She is my baby, you can't take her. You did this to her, you owe her some time to get better.”
As she said this, she stared right at me. As a father, I felt the depth of her anguish. As a lawyer, I felt the need to protect her and Jahi. So began our odyssey, a day-to-day fight to keep Jahi alive.
Each day was a challenge, not knowing if or when the hospital would seek to turn off the vent. The hospital was cold and dispassionate, stating that it had no legal obligation to keep Jahi on a vent, it was not treatment, she was just a dead body hooked up to a machine. Angrily the chief of pediatrics said, “What don't you understand, she is dead, dead, dead.”
He then went on to state that they wanted to take Jahi off the vent. Asked when, he said “Quickly.”
Nailah said, “Don't touch my baby.”
I agreed to represent the family, pro bono, and we sought an injunction, challenging the hospital's claimed right to unilaterally pull life support against a parent's wishes.
Additionally, we challenged the determination of death because the hospital had not provided an independent evaluation of Jahi's condition as required by Health and Safety Code Section 7181. The Alameda County court, in analyzing the law, agreed that a hospital does not have the right, over the objection of a parent, to remove life support without judicial scrutiny. As I write this, we had obtained an extension of the injunction so that Jahi will be with her family through Christmas rather than in a morgue, an order to produce Jahi's medical records and an independent medical evaluation. It is uncertain what the future will bring for Jahi and her mother, but for right now, they still have each other.
That's my gift this year, a mother together with her daughter and time for a miracle.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.