Dr. Paul Graham Fisher is one of the expert witnesses who concluded ten months ago that Jahi McMath was dead in virtue of neurological criteria--that is to say, had suffered whole brain death. Now, for reasons that are utterly obscure to me, Judge Grillo has asked Fisher to be the "independent" expert to evaluate the new evidence being brought forward by Jahi's family. That simply doesn't make sense. As my recent post on this subject shows, I have some sympathy for Judge Grillo, who is in a legally unprecedented situation. But why in the world would you place this matter in the hands of the very same person who drew the brain death conclusion in the first place? It seems evident that such a person has an inherent conflict of interest, however hard he might try to set it aside. And it's not as though a new determination has to be made by convincing the same person who thought she was brain dead nearly a year ago. Why would it have to be that way? There must be many experts who are truly new people to the entire situation and who could be asked for comment on the new evidence. So this is, in my opinion, a huge misstep by Grillo.
Unfortunately, Fisher is only confirming concerns about his open-mindedness by his entire approach to the evidence.
Let me make something clear: Fisher has not re-examined Jahi. That may not be his fault. Perhaps her mother doesn't want him to do so. Perhaps the judge hasn't asked him to. Perhaps he's in California, and nobody is offering to pay for him to fly to New Jersey to examine her. So I'm not saying that he doesn't want to examine her. But what we have is merely his opinion, as an expert to be sure, but merely his opinion of the same evidence that the rest of us have heard about--that is, reports of EEG activity, evidence of preserved brain structure, which argues for blood flow to the brain, the information that she has begun to have periods, and videos that may show her moving a hand or foot on command.
And what do we get from Fisher? Carping and dismissal, without even a call for more evidence gathering. For example, Fisher complains about the fact that the EEG was performed in an apartment rather than a medical setting and that therefore it may not represent actual electrical activity in Jahi's brain. As Wesley J. Smith points out, the obvious answer to such concerns about protocol is to call for the test to be performed again in a setting that Fisher would find more convincing. But instead he just dismisses it. He also says that a flat EEG is not necessary for diagnosing total brain death, but he doesn't (as far as I can tell, given that I've been able to find only quotes of his letter rather than the whole thing) seem to tell us how much EEG activity would be, in his opinion, incompatible with such a diagnosis and whether the EEG report from Jahi, if correct, meets that standard.
He merely dismisses her undergoing menarche as irrelevant. Why is it irrelevant? The hypothalamus? Hello?
He says that the MRI is the "wrong test" to detect blood flow. Perhaps it does not detect blood flow directly, but what about that preserved upper brain structure? Dr. Charles Prestigiacomo, chairman of neurological surgery at Rutgers University Medical School, expressly says that that much brain structure preservation would not be expected after this long if Jahi were truly brain dead. (Maybe he should have been Grillo's outside expert instead.) It sounds like Fisher is evading rather than addressing the nature of the MRI evidence. Does he actually believe that Jahi's upper brain tissue is being preserved indefinitely with no blood flow? How is that supposed to work? Is she supposed to be like a saint whose body is miraculously incorrupt? If Fisher wants a different test instead, why not call for it to be done?
Most frustrating of all, Fisher makes an epistemically classic mistake of confusing his own continued skepticism with the absence of evidence. Or, to put it in more technical terms, he confuses a low posterior with a lack of evidential force in what he has received.
Overall, none of the current materials presented in the declaration refute my 12/23/14 examination and consultation finding…None of the declarations provide evidence that Jahi McMath is not brain dead.
Even if he is justified in remaining skeptical that Jahi is alive, it does not follow that what he has been given is not evidence. It just may not be, yet, sufficient evidence to overcome his low prior probability. But the fact that some evidence doesn't pull a proposition's probability up to x level does not mean that it isn't evidence. It seems undeniable that what we have received regarding Jahi recently is evidence that points in the direction of her no longer fulfilling the clinical criteria for total brain death. At a minimum, further tests are therefore warranted. Like some atheists when it comes to the existence of God, Fisher seems to think that if he isn't completely convinced by some evidence, it isn't evidence at all. This is a mere probabilistic and epistemic confusion. (Hearty kudos to Wesley J. Smith for calling Fisher on that very point.)
Another point arises here: Who has the burden of proof to show what, and what is the relevant standard of evidence? Fisher assumes that Jahi's family and lawyer have the burden of proof to show that she is alive rather than dead. Perhaps that is legally correct, given the judgement ten months ago. But even so, how does Fisher know what is legally supposed to count as "enough" evidence in this case? There are many evidentiary standards floating around in the legal system, and I'll bet dollars to donuts that none has been clearly determined for this type of case, since this type of case has never come up before! Does Jahi's family have to show probable cause that she is alive? Do they have to show it by a preponderance of evidence? By clear and convincing evidence? Beyond reasonable doubt?
As Smith points out, if this were a capital case, what has been given thus far would certainly be considered grounds for reopening the case.
I admit to some puzzlement as to why Judge Grillo has not simply asked some truly independent experts to go to Jahi's location in New Jersey and conduct, anew, all of the tests that would usually be done in an attempt to determine if a patient has suffered total brain death. Are Jahi's lawyer and family not willing for that to be done? Is the money not available to hire them to do it? Are willing experts, new to the case, not to be found? If we grant, as presumably Judge Grillo believes, that total brain death while the heart still beats is a real thing and that it can be reliably detected (both of which are open to question), it still seems a pretty straightforward thing to re-test Jahi now, in view of the evidence that has been brought thus far.
In fairness, I have to admit that Jahi's family's lawyer has not (that I have seen) called for this additional testing. He has appeared to rest his case on the evidence he has ready to present already. So I can't say for certain that his side is open to doing a lot more evidence gathering. But one thing is clear: Dr. Fisher and those on that side do appear closed to more evidence gathering. They are the very people saying, "Not enough evidence" while appearing inexplicably uninterested in getting any more. That attitude is neither scientific nor medically responsible.