A judge on Tuesday ordered that a 13-year-old Northern California girl declared brain dead after suffering complications following a tonsillectomy be taken off life support.
But Alameda County Superior Court Judge Evelio Grillo gave Jahi McMath's family until 5 p.m. Dec. 30 to file an appeal. She will stay on life support until then.
Grillo issued the order after a Stanford doctor testified that Jahi is brain dead. Dr. Paul Graham Fisher's evaluation was the second to reach that conclusion.
Children's Hospital of Oakland, where Jahi is hospitalized, has asked that the girl be taken off life support after doctors there also concluded she was brain dead.
Her family has said it believes she is still alive and that the hospital should not remove her from the ventilator without its permission.
Hospital lawyers disagree.
“Because Ms. McMath is dead, practically and legally, there is no course of medical treatment to continue or discontinue; there is nothing to which the family's consent is applicable,” the hospital said in a court filing on Tuesday.
Fisher first provided his opinion to Grillo behind closed doors Tuesday morning. Fisher briefly provided his conclusions in open court that Jahi has no brain activity. Fisher left court without taking questions.
Dr. Robin Shanahan, a Children's Hospital doctor, was next called to testify in the judge's chambers.
Grillo has previously ordered Jahi to remain on life support until Dec. 30, or until further order from the court.
Jahi was declared brain dead after experiencing complications following a tonsillectomy at Children's Hospital.
The judge on Monday had called for Jahi to be independently examined by Fisher, the chief of child neurology at Stanford University School of Medicine.
On Dec. 12, doctors concluded the girl was brain dead and since then have wanted to remove her from life support. Jahi's family wants to keep her hooked up to a respirator and eventually have her moved to another facility.
“They failed her,” said Sandra Chatman, Jahi's grandmother and a registered nurse, who sat in Grillo's courtroom for more than three hours Tuesday during the closed door testimony. “Jahi could have been saved.”
“Miracles happen,” Chatman added.
The family's attorney, Christopher Dolan, said he would file an emergency appeal to keep Jahi on life support if the trial judge orders her removal from the ventilator.
Dolan also wants a third evaluation done by Dr. Paul Byrne, a pediatric professor at the University of Toledo. The hospital's attorney objected to Byrne, saying he is not a pediatric neurologist.
Byrne is the co-editor of the 2001 book “Beyond Brain Death,” which presents a variety of arguments against using brain-based criteria for declaring a person dead.
In a phone interview, Byrne said he could not comment in detail because he had not seen any of Jahi's medical records. But the fact that her ventilator is still functioning properly is a sign that she is alive, he said.
“The ventilator won't work on a corpse,” he said. “In a corpse, the ventilator pushes the air in, but it won't come out. Just the living person pushes the air out.”
Jahi's family says the girl bled profusely after a tonsillectomy and then went into cardiac arrest before being declared brain dead.
Outside the courtroom on Monday, Dr. David Durand, chief of pediatrics at Children's, said staff have the “deepest sympathy” for the family, but that Jahi is brain dead.
“The ventilator cannot reverse the brain death that has occurred and it would be wrong to give false hope that Jahi will ever come back to life,” he said.
Durand said Jahi's surgery was “very complex,” not simply a tonsillectomy.
“It was much more complicated than a tonsillectomy,” Durand said. He refused to elaborate, citing health care privacy laws.
Arthur L. Caplan, who leads the Division of Medical Ethics at NYU Langone Medical Center and is not involved in Jahi's case, told The Associated Press that once brain death has been declared, a hospital is under no obligation to keep a patient on a ventilator.
“Brain death is death,” he said, adding, “They don't need permission from the family to take her off, but because the little girl died unexpectedly and so tragically, they're trying to soften the blow and let the family adjust to the reality.”