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Is Jahi McMath breathing on her own?

This is interesting news:

You may remember Jahi McMath, who was declared brain dead almost three years ago now. Three years. I've written about her case here, here, and here. Her family was able to keep her on life support, her body has not deteriorated or decayed, and her heart has continued to beat. If your brain stem really is completely dead, this is highly unlikely. Her family says that she has even gone through puberty during this time.

They are suing the hospital where her original surgery was, and a court has ruled that they can bring evidence that she is alive (despite the fact that a death certificate was issued), as this makes a big difference to how much the original hospital can be sued for in malpractice.

Now the family has put up a video purporting to show that she is beginning to breathe on her own. The video shows a breathing monitor with numbers that counts her breaths per minute and purportedly shows her getting up to sixteen self-generated breaths in a minute, while her mother cheers her on. If true, this absolutely refutes any claim of whole-brain death. Without an operating brain stem, this is not possible. It now remains for the family to show this to "outsiders," because it isn't going to be deemed relevant in a court if the only people who claim to have seen it are already family members and friends of the family. If it's happening, they need to bring in some sort of agreed-upon witness to testify to it.

Could this be fake? I suppose it could. If they somehow got hold of such a breathing monitor, they could even have some other person hooked up to it when the numbers are showing. Most anything can be faked nowadays.

But as an epistemologist, I want to point something out: Sometimes the epistemic value of a piece of evidence is that it narrows the options if the hypothesis is false. Consider (my own special area of interest) the claims by the disciples that they personally talked with Jesus at length after his resurrection and ate with him. If they really did claim that (as I think they undoubtedly did), then whatever else was the case, they weren't just mistaken. Sometimes we want to keep open the idea that someone is just over-enthusiastic and is honestly mistaken about a controversial hypothesis. But when testimonial evidence is sufficiently specific and specifically striking, that possibility is closed off.

If Jahi McMath is not actually breathing like this on her own, then her family must be really bad people, engaging in an elaborate hoax for their own benefit. They can't any longer be seen as possibly just grieving parents who are "in denial" about the fact that their child is really brain dead. The choice has just become much starker.

In my opinion, that itself is some evidence for the conclusion that Jahi McMath is alive, because the elimination of the "grieving, mistaken people" option on the ~H side of things is going to make a difference to the probability of H (that Jahi is alive).

We will see how this plays out. There was already troubling evidence that the clinical diagnosis of brain death was mistaken. It was particularly troubling because it was double-checked at the time, by court order. This means it wasn't made in haste or without following protocol. If it was mistaken nonetheless, the cat is among the pigeons as far as trusting such diagnoses in other cases, particularly in cases (unlike Jahi's) where organ procurement is under consideration.

Speaking for myself, I rather hope Jahi's parents are vindicated. That's my own partisanship coming out. Also, it would be more to the credit of everybody if it were so. The hospital wouldn't even have to have been filled with cynical, wicked people trying to take life support away from a little girl. In that case, the original doctors would have been the ones who were just sincerely mistaken. Let's see if Jahi's family can show this to be so to the satisfaction of third parties.

Comments (43)

This investigation might be done with fMRI studies, as they can, indirectly, measure oxygen utilization. A free review book may be downloaded, here:

http://journal.frontiersin.org/researchtopic/1196/investigating-the-human-brainstem-with-structural-and-functional-mri

There is another review article that covers various imaging options, from fMRI to PET scans (PET scans directly measure oxygen utilization):

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1064998/

Look for the PDF option at the top left for the last article,

The Chicken

Chicken, see here:

http://medicalfutility.blogspot.com/2015/11/proof-that-jahi-mcmath-is-now-alive.html

Claim two years ago was that tests showed "intracranial blood flow, which is consistent with the integrity of the MRI and inconsistent with brain death."

But of course the most straightforward test would be if she breathes on her own before unbiased witnesses. That's a knock-down clinical test. Nobody with whole-brain death can do that, period. Now, if they start saying she usually can't do it or only does it occasionally or something, that might not be a lie, but it would make it a lot harder to prove.

"The video shows a breathing monitor with numbers that counts her breaths per minute and purportedly shows her getting up to sixteen self-generated breaths in a minute,"

Nope, you misunderstood the video. The machine is set for 12 breaths per minute. Anything above that number is supposedly breaths initiated on her own. This means when you see 13 & 14 , she is only taking one or two breaths per minute on her own. Of course, everyone knows a breath or two in a minute is not enough to survive on and can't honestly be described as her "breathing on her own".

Plus, I have read that there are a couple of things that could cause the machine to indicate that she attempted to take a breath. It was pretty complicated reading but it seems that the machine isn't necessarily accurately showing her taking breaths on her own. Supposedly the machine can be set to CPAP to see if she tries to breath, but they don't show that at all.

It's a sad situation but the family is in denial. You can't tell anything to any of them as they will believe what they want. I've been reading about this case for a couple of years now. The situation is unchanged and it looks like this may go on for years. Not much of a life for the parent and especially for her siblings who are actually alive and should be getting the attention wasted on Jahi.

Nope, you misunderstood the video. The machine is set for 12 breaths per minute. Anything above that number is supposedly breaths initiated on her own. This means when you see 13 & 14 , she is only taking one or two breaths per minute on her own. Of course, everyone knows a breath or two in a minute is not enough to survive on and can't honestly be described as her "breathing on her own".

Thanks for the info. But total brain death, including brain stem death, would as far as I know make even one independent breath per minute (much less 4, at 16-12) impossible. And she has supposedly been in that state for nearly three years.

The situation is unchanged and it looks like this may go on for years.

Normally, a person who actually has suffered whole brain death *does not* "go on for years." It is a myth that it is normal to be able to keep a whole-brain-death body alive indefinitely on a ventilator. The interaction between breathing and heartbeat breaks down, usually quite quickly. The very fact that it has "gone on for years" is some evidence. Nor would the brain tissue be expected to remain intact, as it has done.

And I doubt they are just lying about breast development and menstruation. That is not an "unchanged situation," in and of itself.

I appreciate the correction concerning number of self-generated breaths per minute, but this *is* new info, and there was *already* some concerning evidence against the whole-brain-death diagnosis.

I've been following this case intently. Mainly because I am interested in the topic since my wife passed away from a heart attack and was "brain dead" and on a vent for about 9 days before she passed away. As her husband it was up to me whether to pull the plug but her family opposed it so I just went along with them. Since she was in her 40's she didn't last long on the vent.
I've read that in some cases, young people have lived for fifteen years and longer. I think the longest was a case of a young boy that was on a vent for 23 years. His brain was a calcified lump at autopsy. You're right that most people don't last long at all on the vent before their systems fail. Jahi is young and was overwieght, so with that in her favor she might stay on the vent for decades.
You're also right in that if she took even one breath voluntarily that would mean she is not brain dead but in what I think they call a persistent vegative state. I don't trust the family's word as to if she is taking breaths or not. Or it could be that something is triggering the vent to fire but is not actually her breathing on her own but causing the family to think that she is.
If I understood correctly (and I could well be mistaken), the machine is set to "breath assist" which means if the machine detects an attempt that it fires. That's not her actually "taking a breath" but rather the machine blows air into her longs when it fires from the signal from what it perceives as an attempt on her part.
Here's the main thing that makes me doubt that she is alive and also makes me doubt that the doctors and lawyers really believe that she is alive. Last year or early this year, the Judge told Dolan that they could try to prove that she was alive and then was to set a hearing for determining when the doctors would examine her and to arrange for independent court appointed doctors to examine her as well.
What happened after that? Dolan backed off. He didn't pursue it because I think that he new that if the impartial doctors examined her that the gig would be up.
I also think that if she was alive that they'd have actual doctors trumpeting the news instead of a vague attempt with this video.

Or it could be that something is triggering the vent to fire but is not actually her breathing on her own but causing the family to think that she is. If I understood correctly (and I could well be mistaken), the machine is set to "breath assist" which means if the machine detects an attempt that it fires. That's not her actually "taking a breath" but rather the machine blows air into her longs when it fires from the signal from what it perceives as an attempt on her part.

Can you provide links to any information that shows either of these to be likely?


I also think that if she was alive that they'd have actual doctors trumpeting the news instead of a vague attempt with this video.

I suspect the majority of doctors aren't willing to work with them at all. Moreover, most people are looking for her to be up and talking or something in order to show that she has not suffered whole-brain death. Unlike you, most people don't realize that she could be completely unconscious, even in a permanent coma, and still be biologically alive.

My best guess is that some aspects of the clinical investigation would turn up ambiguous and that this is causing the family to highlight those items of evidence that favor their side.

However, the breathing is potentially a biggie, because (contrary to your first comment but in line with your second comment) she doesn't need to be breathing on her own enough to keep herself alive in order to refute, clinically, the diagnosis of whole-brain death. Even a single self-generated breath would do it.

If they want to pursue the case, they are going to have to bring in more experts, and experts that are not already on their side. I believe that if they pursue the case the hospital can take discovery and can, in that process, insist on having their own chosen experts do an examination. Also, I would advise the parents not to rely too much on Dr. Byrne, as they have in the past, because he's generally discredited in the eyes of the public on the grounds that he's publicly declared that he doesn't believe whole brain death ever occurs. Even if he were right about that, it's considered to make him look like a kook. I will say, however, that some of their earlier MRI/MRA results concerning blood flow and brain preservation were surveyed by at least one other doctor.

I have not read up as much as Lydia on brain death issues, so I have more in the nature of questions rather than any answers. Is not even the body's ATTEMPT to take a breath something that implies brain stem activity? Here's what I am thinking: take Jahi off the vent, indeed off all machines for a minute. Observe what happens. If Jahi makes motions as of trying to breathe, even muscle spasms in the chest / diaphragm or anything else that is indicative of responding to the FACT of not having air flow with some kind of response to that condition, wouldn't that be indicative of brain stem activity?

The point is, I think, reference to the brain as an organ as the determiner of being alive or dead should not distract us from the larger picture. The brain is not the locus of life itself, it is just an organ. The human person is the union of body and soul, and the soul is the principle of organization and integration of the whole. If there is enough present in the behavior to indicate the body is attempting to breathe (even if unsuccessful), that's inherently a complex life activity that requires the integration of multiple organs including the brain stem. That's indicative of the presence of a principle of such integration - the soul. Seems to me, anyway.

On the other hand, having someone on a ventilator (and other machinery?) for months and years is certainly extraordinary means of sustaining life. And depending on all the other facts and circumstances, therefore, the family could quite reasonably decide not to continue to use that extraordinary means. Though I hesitate to say it, if the costs of medical care are being borne by the community, then maybe (at least in theory) the community too should have a say in that decision - though I am not confident as to who should actually bear the burden of such decision-making for the community, especially in this degenerate culture. More's the pity.

No, I don't think it's being borne by the community. And that's part of why they are suing for malpractice, as well.

But yes, it is extraordinary means. I've said from the beginning that even taking a living person off of a ventilator is not intrinsically wrong and not the equivalent of removing food and water.

The reason that this case is so huge is because of all the other implications if there were a proven mis-diagnosis of whole-brain death. Those implications are simply staggering, because such diagnoses are used all the time in many other cases, including (most crucially) organ procurement.

And whatever we say about taking a living person off of a ventilator, taking out a living person's heart is, as we all agree, a whole different ballgame.

That was never being considered for Jahi, but it is for a lot of other people, so knowing whether or not it's possible to diagnose "death by neurological criteria" or "whole-brain death" with any reliability is a pretty urgent practical question.

Although I am not an MD, I do study neuromathematics and I did do extensive research on breathing and the brain stem for my article modeling the origins of laughter in the brain stem. To my knowledge, I was the first person to derive a qualitative set of equations modeling respiration that matches empirical measurements. The article appears in a peer-reviewed journal. Because the humor research community is so small, I have a pretty good guess who the reviewer was and, if I am correct, he is an MD.

That being said, we do not have a clear understanding of how breathing actually works in the brain stem. We do not know if there are separate pattern generators for inhalation and exhalation or a single group of neurons for both. Unless there has been more development since I wrote that article (early 2000's), an MRI cannot detect neural activity uniquely associated with breathing.

Unplugging the respirator might prove nothing if there is a threshold firing strength required to activate the supplemental motor cortex and raise and lower the chest.

What one wants to see is evidence of activity in the pre-frontal cortex. That would indicate some higher brain function exists.

The Chicken

What one wants to see is evidence of activity in the pre-frontal cortex. That would indicate some higher brain function exists.

But not necessary for not being whole-brain-dead. That is to say, higher brain function is not required for refuting a "whole-brain-death" diagnosis. For example, so-called anencephalic infants and extremely microcephalic infants, if they survive birth at all, are not brain dead until they, well, die. That is to say, until their brain stem stops working, they stop breathing, their heart stops, etc. Higher brain function is a _sufficient_ condition for not having suffered whole-brain-death. But it isn't a _necessary_ condition.

Do anencephalic have partial brain stems? They do have spinal cords. I don't know.

The Chicken

Oh, yes. It is the upper part of the brain that they are missing. The term "anencephalic" is actually misleading for precisely that reason. They do not generally live long, and most in fact don't survive birth, but that they sometimes live at all through and after birth is due to the fact that they have brain stems. Without a brain stem they wouldn't even live in the womb, as it controls the heartbeat.

@ Lydia, re: this statement in your original post:

There was already troubling evidence that the clinical diagnosis of brain death was mistaken. It was particularly troubling because it was double-checked at the time, by court order.

There is no legal argument on the table that claims the original clinical diagnosis of brain death was mistaken. The court ruled that both the original tests and the independent tests were correctly performed and accurate. Nailah's lawyers clearly state in their current case documents that they do not dispute those test results or the court's opinion of them. Presumably, they know any attempt to re-argue the accuracy of those tests before a new judge would backfire. The court would either reject the claim based on the prior court ruling or order round independent testing. Consequently, this time around, they are not attempting to claim a wrong diagnosis. They are only attempting to challenge the legal definition of death.

Re your October 12 reply to a comment from The Masked Chicken:

Claim two years ago was that tests showed "intracranial blood flow, which is consistent with the integrity of the MRI and inconsistent with brain death."

Dolan's 2014 claims that their MRI showed bloodflow were as disingenuous as his claims about the structural condition of her brain. He cleverly banked on the media and the general not knowing the difference when he trotted out the September, 2014 brain scan image. To date, they have only presented a single slice of a standard MRI to the court and the media. The kind of MRI they presented cannot detect blood flow.

In his press conference, Dolan additionally claimed that scan proved that Jahi's damaged brain tissue has not been replaced by fluid as predicted. He said that while pointing to the projected image. It showed a brain with major portions (including the midbrain and pons) essentially gone, and the cavities where those ad other structures should have been recognizably filled with cerebrospinal fluid. He banked on the media not knowing the difference.

Anyone who knows what the brain should look like on a scan can tell you that image was the horrifying opposite of what Dolan described. It would be interesting to see what that same view looks like today. It is safe to say that now, two years later, the answer is not "improved".

Presenting that image as proof of his claims was Dolan's most blatant deception to date. Seeing Jahi's mother stand next to him as he made the claim tearfully say, "I was so happy to see that she has brain structure," made his deception doubly cruel. She may be stubborn, delusional, and easy to dislike for way she has handled this, but that doesn't give people like Dolan license to take advantage of her. It doesn't excuse anyone preying on a grieving parent to serve their own agenda. They are vultures.

Consequently, this time around, they are not attempting to claim a wrong diagnosis. They are only attempting to challenge the legal definition of death.

No, if they are claiming that she's breathing on her own, that would be contrary to *any* medico-legal definition of whole-brain death. Similarly, every claim made thus far is that she is not meeting the clinical definition of whole-brain death. NOt a change of definition. Of course, the claims may be _false_, but they aren't trying to change the definition.

Now, if you want to say they are claiming there was a miracle after the diagnosis of brain death originally...but that's not what they are saying. In any event, from the legal perspective, what matters is whether she meets the clinical criteria *now*, not how she got there.

No, if they are claiming that she's breathing on her own, that would be contrary to *any* medico-legal definition of whole-brain death. Similarly, every claim made thus far is that she is not meeting the clinical definition of whole-brain death. NOt a change of definition

They aren't claiming that she is breathing on her own in any of the legal cases. Nallah Winkfield made that claim on her Facebook page. Her attorneys make no mention of it the legal briefs outlining the arguments and evidence they plan to introduce. Their legal claims are based solely on the evidence they had in 2014. This independent expert opinion, ordered by Judge Grillo in October 2014, shows what factored into his court's rejection of that evidence: http://thaddeuspope.com/images/Fisher_letter_and_Objection_to_Fisher.pdf

The closest thing they have to a 'recent' and firsthand medical opinion about Jahi's condition a letter from Dr. Alan Shewmon. He visited Jahi in December 2014, and performed some cursory examinations in an unofficial capacity. From his submitted report: "My own neurologic exam on December 2, 2014, documented aabsence of all brainstem reflexes. Jahi also did not make any respiratory effort during approximately 20 seconds off the ventilator." His opinion is this: IF she has hypothalmic function THEN her condition would not be consistent with whole brain death. Shewmon is well known for his unconventional definitions of brain function and whole brain death. While theoretically useful in research, they are not consistent with how the UDDA/CA UDDA is applied in clinical practice or by the courts. The judges in these case have pointed to their obligation to apply the law according to the widely accepted medical standards and practices. Arguments based on alternative definitions of life and death proposed by Shewmon and others require challenging those standards.

The UDDA challenge is this: their argument to the court states that even if Jahi DOES meet the standard medical and legal criteria for brain death, the law should not consider her dead. It is not an appeal to the existing law. It is an appeal to side debates within the bioethical community about brain functions that are NOT part of the standard assessments that must be used when diagnosing brain death or declaring legal death. They claim there is hypothalamic activity (the evidence is anecdotal and unproven). They say this means the law cannot consider Jahi to be dead under the UDDA because any function, no matter how isolated, would mean "all functions of the entire brain" have not ceased. The theoretical argument challenges how the law interprets the UDDA, and also challenges standard practices issues covered by the 2008 President's Council on Bioethics. Clearly, the UDDA should be updated with more specific language. But this case, with its ongoing history of flawed medical evidence, scattergun arguments and court-rejected 'expert' witnesses, appears unprepared to challenge the law as it stands today.

Now, if you want to say they are claiming there was a miracle after the diagnosis of brain death originally...but that's not what they are saying.
Interestingly, the backup argument in their court documents says just that. It claims that Jahi did not respond to stimuli in properly conducted brain death tests in 2013, but now she inexplicably does. Therefore, they claim, she presented as dead but was never "chronically" dead. "Chronic death" is a Paul Byrne term, not a legitimate medical or legal term. They only supporting claim says that Jahi can now voluntarily respond to verbal commands. They say Nailah's undated home videos of hand and foot movements are proof. Shewmon is the only neurologist who has discussed this claim in court documents. His report says: "In my presence she did not respond to most verbal requests to move a specific body part. A few times there was slight movement of the requested body part, but it was not reproducible, and some of those times other body parts moved simultaneously. Such movements were suggestive of a possible effort to respond to the command, but they were not sufficiently convincing to me."
In any event, from the legal perspective, what matters is whether she meets the clinical criteria *now*, not how she got there.
I fully agree. Their current plea to reverse the declaration of death presents far greater challenges than they faced in 2014. There are now defendants in a separate civil suit who have the right to cross-examine their medical witnesses on the topic of whether she is alive or dead. Those defendants also have a legal right to examine Jahi in person in the discovery phase, appointing their own medical experts to assess her condition. If either side's evidence is called into question, the court will order an additional independent examination. The sooner examinations happen, the better. Years old secondhand opinions and anecdotes are irrelevant. This case needs reliable medical evidence of her current condition.
Her attorneys make no mention of it the legal briefs outlining the arguments and evidence they plan to introduce.

You have access to a legal brief that is clearly *all* of the arguments and evidence they plan to introduce *right now*? That seems a little implausible to me. What's being claimed on the FB page would be highly pertinent evidence if not fake, indeed something of a bombshell, and if it can be substantiated, they'd be foolish *not* to introduce it into the case. The hospital kept appealing to have the whole thing closed down on the basis of the 2013 determination. They just got that appeal decided in their favor in (I believe) July. Meanwhile, they've probably been trying to gather evidence that favors their perspective for if and when they are allowed to present it. The breathing claim looks like part of that.

and also challenges standard practices issues covered by the 2008 President's Council on Bioethics.

Yes, I found the council on bioethics's statements problematic at the time. Frankly, it sounded to me like the council was making it up as they went along *because* they wanted to "define out" people who clearly did have hypothalamic function as being biologically dead. My own opinion was that it was the council that was changing the definition, not people who took at face value the concept of whole-brain death. After all, this isn't a coupla cells here and there we're talking about. It's actual integrated function between the brain and the rest of the body.

The theoretical argument challenges how the law interprets the UDDA

The UDDA *is* the law. You're now using "law" to mean something vaguer like "frequent legal practice." The actual wording of the UDDA is, right on the face of it, on the side of the people (such as Shewmon) who, you say, are changing the legal definition! The phrase "all functions of the entire brain" comes right out of the law. To say, "Oh, we didn't really mean all functions of the entire brain" appears to be the switcheroo. To say that those who take it to mean what it says are the ones changing the definition is, to my mind, a dubious way to use the term "the law."

My own opinion is that the law originally meant pretty much exactly what it appears to mean, because lawmakers thought it would work that way and that they could still get organ procurement that way. I would be willing to bet that lawmakers who wrote it (I believe it was originally a state law, later approved as a federal law by some committee doing standardization of laws across states) weren't even aware of the issue of actual function of particular parts of the brain. The bioethics panel much later came along and sort of codified the way that many in the medical community had *decided* to interpret and apply the law, because otherwise there was a real possibility of not being able to do organ transplant from patients clinically diagnosed in this way. It doesn't follow that that was the original meaning of the law at all.

@Lydia

Without a brain stem they wouldn't even live in the womb, as it controls the heartbeat.


That is not true. The heart has its own internal regulator that keeps it beating regardless of whether there is a brain present. Hearts removed for transplant can and do continue to beat as long as they are provided nutrients.


Anencephalic babies without brain stems die because breathing is controlled by the brain stem. So, after birth, when they no longer receive oxygen from the mother and they do not breathe, the heart quickly runs out of oxygen and ceases beating for that reason.

The brain stem controls breathing and heart rate

https://www.reference.com/science/part-brain-controls-breathing-heartbeat-992521b32d221aba

The brainstem also plays an important role in the regulation of cardiac and respiratory function,

Source: Boundless. “Functions of the Brain Stem.” Boundless Anatomy and Physiology. Boundless, 11 Oct. 2016. Retrieved 05 Nov. 2016 from https://www.boundless.com/physiology/textbooks/boundless-anatomy-and-physiology-textbook/central-nervous-system-12/the-brain-stem-117/functions-of-the-brain-stem-637-6728/

The lowest part of the brain stem, the Medulla Oblongata, connects the spinal cord to the brain. It is also where the body’s reflex functions (as well as its vital centers) are regulated. The Medulla specifically regulates breathing, heart rate, and sleeping.

http://www.plasticitybraincenters.com/Blog-Posts/2016/May/The-Role-of-the-Brain-Stem.aspx

There is a reason why the heart doesn't just go on beating as it's supposed to indefinitely if the brain stem has really ceased to operate. That is why it's so unexpected for those declared to have suffered "whole brain death" to continue to have bodily function, including a proper heartbeat.

The "heart in a box" technology to which you allude actually pulses blood through the heart.

Donor blood is used, and the system provides for blood oxygenation and flow from an internal gas supply and pulsatile pumping system.

http://www.transmedics.com/wt/page/organ_care

In other words, the technology itself might be thought of as having another heart outside of the heart--a pump that is pulsing blood through the heart. This isn't just a matter of "providing oxygen and nutrients." Rather, it is simulating the conditions of the body and causing the heart to have a regular beat. The regular heartbeat isn't the result of the provision of nutrients and oxygen somehow.

And, yes, anencephalic infants do have at least part of their brain stem. If they survive birth, they even breathe, at least for a very short while.

http://www.anencephaly.info/e/faq.php

https://highschoolbioethics.georgetown.edu/units/unit1_3.html

In fact, it is because they are *not* technically brain dead that there is a push to change the legal requirements for donation so that their parents can donate their organs anyway prior to their being declared brain dead:

http://blogs.kentplace.org/bioethicsproject/2014/02/10/unborn-heroes-parents-anencephalic-infants-right-donate-childs-organs/

@lydia RE:"You have access to a legal brief that is clearly *all* of the arguments and evidence they plan to introduce *right now*? That seems a little implausible to me..."

All of the McMath court cases, past and present, are civil cases on the public record. Anyone can access the case documents and attend the court hearings. All of the cases are all in the pleadings stage, in which they have to outline their entire case for the court and allow the defendants to respond. The legal brief you describe isn’t a single document. There are roughly 70 case documents, totaling hundreds of pages. They state all of the arguments and evidence they plan to introduce right now— their complaints, claims, pleas, the nature of evidence they plan to introduce to support their claim that she’s alive, and their legal arguments pertaining to that.

They presently have four open cases in California. Here's a list of the courts and case numbers. The documents are available via the public records sections of the court’s website:
———————————————————
Federal Civil Rights Lawsuit against the State of California and numerous County/State departments and officials:
Case Name: McMath v. State of California
Court: United States District Court; Northern District of California (Judge: Haywood S. Gilliam, Jr.)
Case No: N.D. Cal. No. 3:15-CV-06042
———————————————————

Medical Malpractice Lawsuit against Dr. Rosen, UCSF Benioff Children’s Hospital Oakland, et.al.
Case Name: Spears v.. Rosen
Court: Alameda County Superior Court; California (Judge: Stephen Pulido; reassigned from Judge Robert B. Freedman)
Case No: RG15760730
———————————————————

Related Court of Appeals Case:
Case Name: UCSF Benioff Children's Hospital Oakland v. Superior Court of Alameda County
Court: First Appellate District Division One (Presiding Justice:James M. Humes)
Case No.: A147989
———————————————————

Separate (and apparantly abandoned) Medical Malpractice Complaint filed by Jahi’s biological father:
Case Name: McMath v. Rosen
Court: Alameda County Superior Court, California
Case No.: RG15796121
———————————————————

Previous cases (now closed or dropped):

Dec. 2013 case to obtain release of her body from CHO (settled Jan. 2014; closed 2014):
Case Name: Winkfield v. Children's Hospital Oakland
Court: Alameda County Superior Court; California (Judge: Evelio M. Grillo)
Case No: RP13707598

Related Federal Injunction case:
Case Name: Winkfield v. Children's Hospital Oakland
Court: United States District Court; Northern District of California; Oakand Division (Judge: Saundra Brown Armstrong)
Case No: C 13-5993 SBA

Dolan's 2014 aborted case claiming she was alive (filed Sep. 2014, dropped Nov. 2014):

Case Name: Winkfield v. Children's Hospital Oakland
Court: Alameda County Superior Court; California (Judge: Evelio M. Grillo)
Case No: RP13-707598
———————————————————

If you have difficulty navigating the court websites to get the documents directly, you can access them here: http://thaddeuspope.com/jahimcmath.html

I looked at those documents, and it looks to me like part of what is at issue is whether the plaintiffs will be carrying out a lengthy process in which they will present all the medical evidence that they hold shows Jahi to be alive. It appears that the defendants are attempting to prevent this. Back in January a judge tentatively ruled that they would be permitted to bring such evidence, but it appears that no trial date has been set and even that there has been controversy since then as to whether or not there would be such a trial with expert testimony, etc. I'm not at all convinced that these documents would contain all of the testimony that Jahi's family would present if they received their day in court. The most recent statements, in April, show that there is still disagreement about how much time will be taken for the presentation of all of this evidence, and the "breathing on her own" claim has been made subsequent to that. It looks like the issue of "bifurcation" (between the issue of her death and the issue of malpractice), a procedural matter, was last occupying the court when the last documents were filed. I see no evidence in that set of documents at Dr. Pope's site that, every time some new item of evidence arises, Jahi's family is expected to file a new document presenting it. On the contrary, it seems that they are hoping to get the opportunity to present their evidence *at trial*.

http://thaddeuspope.com/images/Joint_case_management_statement_04-04-16.pdf

@ Lydia RE: "I see no evidence in that set of documents at Dr. Pope's site that, every time some new item of evidence arises, Jahi's family is expected to file a new document presenting it."

They *are* actively responding as new things arise. Last week, the defendants in the malpractice case filed a motion to unseal medical records from the December 2013 hearings that contradict their current claims. The Plaintiff's attorneys filed a same day opposition to that, and immediately scheduled an interim hearing for December 13.

RE: "On the contrary, it seems that they are hoping to get the opportunity to present their evidence *at trial*.."

The can't present evidence in a case like this "at trial" without first disclosing to the court and the defendants the nature of that evidence and their legal grounds for using it to support their claims. Even when they've done that, it will still be a long way from trial. It has to go into the evidence stage first, in which each side inspects the details of what the other side is presenting, and deposes the witnesses who will testify. In their case management reports, the attorneys for the Plaintiff say it will take them at least 18 months before they are ready to go to trial.

They were lightening quick in submitting their opposition to unsealing existing evidence. Ye, given several months to mull it over, they haven't bothered to (alleged) new bombshell evidence that would the argument over that existing old evidence moot. Someone is intentionally not bringing that information before the court. It's not the defendants, so who do you think it is: Nailah or her attorneys? Do you think Nailah *wants* to stay in NJ? Do you think she *wants* to keep this death certificate issue unresolved for another year? Don't you think it's unlikely that a client in her position would instruct her attorneys to sit on bombshell evidence that would get her back to California with benefits?

Or is it more likely that her attorneys are intentionally not bringing her claims before the court because the evidence isn't there? The claim would be easy to prove to the satisfaction of a court, if it's true. The only thing needed is a series of properly conducted, appropriately witnessed bedside tests administered by qualified medical professionals. The cost is negligible. Her NJ Medicaid coverage would pay for it. It could be done tomorrow.

Some arguments from silence do have force. Yours depends on "would do" or "would have done" premises that I am not in a position to evaluate, though you are stating them with great confidence. It's worthwhile to remember (as a reader pointed out to me) that the claim is not that Jahi is breathing *entirely* on her own or even the 14 breaths per minute but rather that she is *adding* two or three breaths per minute to an underlying number produced by the machine. Even if this is the case, this is, indeed, bombshell. But it is presumably a trickier matter to show to a skeptical audience than simply taking off the machine altogether and watching her breathe.

I take it that you are of the opinion that the "breathing on her own" claim is a fake.

I still hold, as I did in the main post, that this is either fake or real. I don't think that the parents are merely confused or deceived. In the video they have posted, the numbers do go up above the point that the machine is set for. This is either happening or not. And if not, and they are making a video of it, then they are faking it.

I'm willing to await events. But I continue to say that all the people who are claiming that a truly biologically dead body has been kept going for three years with a ventilator have a hard row to hoe. The idea that this just happens readily is, to my mind, implausible.

I find that Lydia's statement "The idea that this just happens readily is, to my mind, implausible" is hard to believe in light of the time that continues to pass while Jahi's family have not moved to prove that she is not dead.

Time passes and Jahi has not improved. In fact, the most recent pictures show her face extremely huge and bloated. If Jahi really were following commands and breathing on her own then at this point they would have actual Medical Doctors affirming this both publicly and in court.
Years have passed. I predict that next year and the year after that we will be in the exact situation. Jahi will be "still dead" and her family will still be denying it. It could be that her body finally breaks down and quits but I don't think there is any chance at all that she will improve.

Apparently no amount of time with things remaining the same will change the minds of some people. I'll check back by as the years pass to see if there is a change of opinion here.

That's because evidence sometimes cuts in more than one direction. It is *widely acknowledged* that it is quite unexpected for a truly whole-brain-dead body to continue to have a regular heartbeat when sustained only by a ventilator. Generally the heartbeat becomes irregular eventually. Three years is a *long* time and *not* expected if whole brain death has truly occurred. You guys on the other side are using the argument from silence that, if she were truly "not brain dead" we would have a larger consensus on this, they would have moved faster in court to prove this, and it would all be over.

I am making the argument that, if she were truly whole brain dead, we would have expected her heart to stop working long before this, because that is usually *what happens*.

It is almost as though you folks cannot conceive of a medically difficult-to-prove or borderline case. What if, for example, she was adding breaths to the machine for a few days (during which the video was made) and then stopped doing so? Or what of the evidence from her going through puberty (which, by the way, *is* represented in the court documents)? As for obeying commands, I have *always* questioned that, because even their own advocates appear to acknowledge that it is inconsistent. It is also by no means necessary for not being whole brain dead. A person can be *wholly* unconscious and not have suffered whole brain death. Obeying commands is also *precisely* the kind of thing that loving relatives can deceive themselves about or cherry-pick.

What is undeniable is that she has, against all expectations, continued to have a regular heartbeat much longer than she "should" have if whole brain death had really occurred and has gone through puberty.

My best guess is that perhaps the extra breaths didn't continue and that that is why they haven't put in the evidence (if, as is being insisted here, they would normally do so). I would also guess that perhaps she isn't "passing" some of the *other* clinical tests for not being whole-brain-dead, such as water-in-the-ear and some other reflex tests. Hence, there is some question of what will be decided in court. Nonetheless, I note that her family was asking for a full trial, a long trial, days in court, even *before* the claim of possibly breathing on her own. Why it hasn't happened yet appears to be (from my look at the documents) because the *other* side has resisted separating various issues and trying them separately, not because Jahi's mother shrinks from the contest in court.

Meanwhile, it seems that those who are posting in this thread on the other side fail to understand that the on-going time certainly does *not* provide evidence primarily in the direction *against* her being alive. Very much to the contrary. I can't help wondering if there is some underlying idea that, if she were not brain dead, she would *recover* to some significant extent so that it would become *easier* to show that, but there is no particular medical reason to think that, either.

@ Lydie, RE: "I take it that you are of the opinion that the "breathing on her own" claim is a fake."

No, I do not think it is "fake". Fake implies intentional fabrication. I don't think that's the case here. The only thing I've seen that I can unequivocally call fakery was Attorney Dolan's statement to the press about the MRI he displayed in his 2014 press conference. That was blatant and shameful misrepresentation, as any neurologist or radiologist can confirm. Was it intentional? I'm inclined to think so, based on Dolan's history.

As for the mother's claims that she is breathing, I think she is deeply, tragically mired in the confirmation bias that grips many families faced with tragic brain injury in a loved one. I've spent a great deal of time around families trying to cope with these issues and have dealt with it in my own family. Some people veer off the rails in situations like this. I think Nailah truly believes that Jahi didn't die in 2013. She has adjusted her reality so that she can see Jahi in this condition and believe she is improving, thriving and responding to her. She's isolated herself among enablers who encourage that thinking. It's immeasurably sad, but not unusual. The only unusual aspect is that she's remained that spot for three years and taken it to the extreme. She's doing exactly what I've seen many families do. She's interpreting the things things she observes in her loved one as signs of what she wants. She undoubtedly believes she's seeing Jahi breathing above the vent, the same way she believes that Jahi is responding to her voice. That doesn't make it so. She's a mother who desperately wants to her daughter to be alive and improving. She is reading that that into everything she sees. Emotional denial and wishful thinking isn't dishonesty or fakery. It's dysfunction.

There are simple, common, highly likely explanations for the vent panel readouts you see. None involve miraculous brain stem regeneration. Nailah can continue to privately believe whatever she wants. But she's taking this to the courts. Medically, their claim is inherently questionable. It will only succeed if they can produce medical proof solid enough to withstand challenge.

RE: "...I continue to say that all the people who are claiming that a truly biologically dead body has been kept going for three years with a ventilator have a hard row to hoe. The idea that this just happens readily is, to my mind, implausible."

There are at about five recorded cases of brain dead bodies that were successfully maninated on a vent for as long or longer than Jahi's. The most notable is that of a boy referred to in some scholarly reports as "TK". He suffered brain death at 4-1/2 years old. His parents maintained his body on somatic support (as Jahi is being maintained) for another 20 years. Like Jahi, continued to grow and he went through partial puberty in his teenage years, despite total brain destruction as evidenced by the autopsy. The case study and autopsy report is published in the July, 2006 edition of the peer-reviewed Journal of Child Neurology. You can read it here: http://www.hods.org/pdf/Long%20Survival%20Following%20Baterial%20Meningits-Associated%20Brain%20Destruction1.pdf

There are several other well-documented cases of long-term survival ob organ support after brain death; three in Japan and one in China if I recall correctly. I can look up the citations if you'd like.

RE: "I still hold, as I did in the main post, that this is either fake or real."

I hold, as explained above, that a binary "fake or real" opinion vastly oversimplifies the human factors in this situation. People can have delusional beliefs. They can be blinded by denial. They can refuse to accept facts. They can be ignorant. They can be afraid. They can be swayed by others. None of those things necessarily indicate dishonesty. Could these claims be deliberately dishonest claims? Of course, but there are enough grey areas that I can't fairly declare that they are. My position is the same as the courts take: the burden of proof is on those making the assertion. Their claims are are unsubstantiated until they can prove them to be true.

I strongly advocate retesting Jahi according to legitimate clinical standards. Until the family moves forward with that, or the court orders it, Jahi's body will continue to languish as pawn in an intractable dispute.

There are simple, common, highly likely explanations for the vent panel readouts you see.

Simple, common, and highly likely, huh? Go for it.

None involve miraculous brain stem regeneration.

I never said that anything of the kind happened. I am *open* to the possibility that the brain stem has been functioning to some degree all along. I'm not dogmatic about it but open to it.

There are at about five recorded cases of brain dead bodies that were successfully maninated on a vent for as long or longer than Jahi's.

No, those are precisely the types of cases in dispute, indeed precisely *because* of not only the amount of time involved but also growth and development, which shows that not all *functioning portions* of the brain (e.g., those that regulate growth) were non-functional. (That is, in dispute as to whether the diagnosis was correct.) But in general, that doesn't happen with a careful diagnosis, and you know it as well as I do.

Acumenata,
I am glad that you mentioned in detail about "TK". When I read what Lydia wrote: "I am making the argument that, if she were truly whole brain dead, we would have expected her heart to stop working long before this, because that is usually *what happens*."I immediately thought of the case of TK.
He survived 20 years! That is why in the past I have made the comment that Jahi will likely remain on the vent in the same state for many years. I even hinted at it in my very last post. This is because there are several well documented cases of youths who were on the vent ten years, 15 years, 20 years and more. Jahi is young and has a store of fat, so with that in her favor and based on how well she is doing, she'll likely remain on the vent another 15 years or perhaps much longer.
I read the entire case of TK and it was about 8 pages if I recall correctly. TK even started puberty. Remember, he was a toddler when he first went on the vent and as he aged his testicles descended and then 8 or 9 years later he started growing pubic hair.This is an interesting point because secondary sexual characteristics can appear without a brain. The autopsy was the most interesting thing. His brain was a calcified mass that weighed just a small amount. It was literally a hardened lump of calcite.
All that time that they cared for him and insisted he was alive and get better and his brain was not even there!
I may have mentioned at some point in my past comments that my late wife had a heart attack and was declared brain dead. She was on the vent for not quite 2 weeks, but she was not young and had other factors working against her. When she was on the vent I probably scanned over about everything written on the subject! A year after this happened the story of Jahi came out and I read about her when it first happened and started reading further into the subject just because I had a personal experience with a loved one who had been declared brain dead.
People point to the fact that Jahi still has a heart beat and that she can't really be brain dead. They'll most likely be saying that five years from now, and ten years from now, and 15 years from now and on and on. Finally, the truth will come out though.
Thanks, Lydia, for not deleting my posts and for entertaining dissenting opions.

Splitting hairs as to what exact microamount of brain stem activity is necessary to disqualify someone as "brain dead" is something that the lawyers can engage in; it is not something that should be relevant to those who love her. I believe that Jahi's mother loves her, but she is in denial and, as another commenter noted, surrounded by enablers.

The question is not "can Jahi occasionally add one breath a minute over what the vent does for her?" The real question is -- why would a loving mother want to keep her child trapped in this condition for years? Especially if she is religious and believes that God will receive the soul of Jahi when she dies.

I hope and pray that Jahi is truly unconscious because if she could actually hear and respond to commands this would be a complete horror show. Unable to move, unable to open her eyes, unable to communicate in any manner, suspended between life and death, between heaven and earth, year after year after year. Would anyone keep a beloved pet in this condition much less their child?

The real problem is that Jahi's mother *cannot* change her mind now because she has already invested so much emotionally, financially, and in the toll this has taken on her family, that to remove Jahi from the vent now would acknowledge the enormity of that waste.

There is no doubt in my mind that this tragedy will continue for years. Some day Jahi's siblings may call her mother to account for it and want to know why the living were sacrificed for the dead.

Yeah, actually, it matters to a lot more than lawyers whether a person is actually alive or dead!

All this ranting about this "complete horror show" etc. just shows us the danger of exactly this kind of thinking: If you have a bad quality of life, we want you to die for your own sake. So we'll just hope that your mother will accept that you are dead, even if it isn't true (!), because you'd be better off dead anyway. Nuh-uh. Decisions should be based on the truth, not on better-off-dead sentiment.

Lydia, let's say that the determine that she is taking one breath a minute and that based on that , that she is "alive" but is never going to improve. Are you saying that you would want her kept like this for years and years and years? I don't see what the point would be in keeping someone "alive" who is totally unconscious through such drastic means. I think it probably IS a complete horror show in that room. Tubes going in and waste tubes coming out and having to rotate her to prevent bed sores and all for what, exactly? And for who? They are not doing Jahi any favors, even though I am fairly sure she is not suffering due to being unconscious. If she were even the slightest bit self-aware it would be maddening lying in that bed. I think most people would want to die if they were "locked in" and in a bed with tubes for food to go in and tubes for waste to go out. What exactly would the pleasure in living be? Given her prognosis I don't see how anyone can debate whether Jahi should be kept in this state on any sort of religious or ethical or moral grounds. I can see where her relatives might have financial incentives to, or some sort of guilt over what happened, or some misguided delusional hopes that she will improve. But to any person not related to her it shouldn't be a question of what is right or wrong at all.

You are confusing the question of what means should be taken to treat her if she is alive with the question of whether there is a live patient to treat. Those are separate questions. One cannot decide "this person is dead" *because* one thinks "this person should be dead" or "it would be terrible to be this person and be conscious." That is just an incredible mish-mash of ideas. I myself think that a ventilator is extraordinary means and that it isn't necessarily morally required to continue to use a ventilator for a patient. But there are important medico-legal questions surrounding Jahi's case, and cases like hers, concerning the more fundamental question: Is she biologically dead or alive? If her mother or anyone else decides that she should be taken off a ventilator, they deserve to make that decision on the basis of a true and *independent* answer to the question of whether she is *already dead* or not. This is just basic stuff.

Those are separate questions. One cannot decide "this person is dead" *because* one thinks "this person should be dead" or "it would be terrible to be this person and be conscious."

Although the quality of life is decreased (as it would be for anyone in this situation), it is also subjective and secondary to the real argument you pose, which is:

Is Jahi dead or alive?

In this case, Jahi can not breathe on her own and does not have sufficient brain activity (whether it is partial or not)

Being alive means being able to breathe on your own and having activity in your brain; not being able to breath on your own and not having sufficient ability to control breathing through brain functioning should be considered death.


Secondly, you argue that her parents she be allowed to debate whether she is truly dead.

In my opinion, debating death in this way is another way of prolonging it, because if Jahi was alive she would be breathing and her brain would be functioning. However, I am not going to argue against people that want to have the choice to keep her alive because I am pro-choice if nothing else.

One thing that I have a problem with is that the parents can not actually afford to keep her alive and are using other means to get money through litigation, social services, exc.

Being alive means being able to breathe on your own and having activity in your brain

Absolute b.s.

There are even people who are fully *conscious* despite not being able to breathe on their own.

Oh, you meant being conscious *or* being able to breathe on your own?

Then a) learn not to say "and" when you mean "or" and b) don't just make stuff up to get the conclusion you want.


Yes, I believe both breathing and brain activity need to be present for someone to be alive without support. Brain activity is important for breathing regulation; If she is not able to breathe on her own she will die. Thus, Jahi fulfills the current definition of brain death, which is "irreversible brain damage causing the end of independent respiration, regarded as indicative of death" (Dictionary). I know you might want to say their is some brain activity present in her brain, but even if that's the case, they will need to remove the respirator and see if she has enough brain activity to sustain breathing on her own. Anyway, lets not get caught up the definition that's been argued many times before--she meets the current criteria for brain death unless the definition changes.

This brings me to my main issue with this case, which is that the family is planning to go to court in California to void her death certificate, so they can renew their benefits in California because they do not want to stay in New Jersey.

Don't get me wrong I could care less that the family wants to keep Jahi on a respirator for the rest of her life and her quality of life is impossible for me to judge. What I do care about is that her family is trying to change the definition of brain death in order to obligate the state to pay for her services.

Personally, I would like the chance to vote on it should this happen.

Brain activity is important for breathing regulation; If she is not able to breathe on her own she will die. Thus, Jahi fulfills the current definition of brain death, which is "irreversible brain damage causing the end of independent respiration, regarded as indicative of death" (Dictionary)

Oh, you got it out of a *dictionary*. Well, that settles it.

Please, please, try to get your medico-legal information correct before you waste people's time.

No, it is not the case that being unable to breathe on one's own is sufficient for whole brain death, nor is that the actual medico-legal definition in the Uniform Definition of Death Act for whole-brain death, so your "dictionary" is just uninformed, to put it mildly. There are people all over the world who are respirator dependent and, y'know, communicating and living their lives. Even Christopher Reeve was vent-dependent. I have an on-line friend who has two sons who are vent-dependent due to a rare genetic disorder and communicate using a computer screen. They are fully conscious and interactive with the world around them.

I'm not saying Jahi is one of those people, since obviously she isn't communicating. What I am saying is that you are totally uninformed since you think that being unable to breathe independently is sufficient for whole brain death. You're just plain wrong about that. Being unable to breathe independently is *one factor* in such a diagnosis. And a person who *can* breathe independently has definitely *not* suffered whole-brain death. But being unable to breathe independently is not *all it takes* to fulfill the definition of whole-brain death.

Kindly refrain from ad hominem attacks such as "absolute b.s" in your reply; it really does not convince me that you are credible or justify your inference in anyway.



You are misunderstanding me. I am not saying just the inability to breathe qualifies someone for brain death--it is also the area of the brain that is damaged and the extent of the damage.
Both need to be present for someone to be brain dead.

Please feel free to cite your sources on this.

In your defense (and going off your aforementioned misconception), you mention people who can not breathe on their own and are subsequently not brain dead and have disabilities such as Stephan Hawking and Christopher Reed, but you also backtrack by saying these people can communicate unlike Jahi. By doing so, you suggest that Jahi does not qualify for a disability. This is exactly the opposite of what her parents are trying to prove by voiding her birth certificate. I don't see a clear point here. Honestly, I think you are reacting to what I am saying without digesting it fully.

I am not interested in debating the definition with you, but if you want to comment on whether you think the parents should benefit from services or pay out of pocket I am all ears.

Correction: *voiding her death certificate*

Oh, so you *didn't* mean "and" when you said things like, "Yes, I believe both breathing and brain activity need to be present for someone to be alive without support" and "Being alive means being able to breathe on your own and having activity in your brain." Because taken at face value, with the "and," those statements would mean that people like Reeve, etc., who are vent-dependent are not alive, because they do not have *both* independent breathing *and* brain activity.

By doing so, you suggest that Jahi does not qualify for a disability

No, I was merely being clear, since we had gotten off onto a bit of a tangent as I was trying to correct your repeated statement (which you now disavow) that one had to be *both* breathing on one's own *and* have sufficient brain activity to qualify for being "alive."

As I've made clear all along, I don't know if Jahi is biologically alive or not. I disagree with those who hold that it's completely plausible that her heart would have gone on beating this long if she were biologically dead. I think that is implausible. I think her going through menarche is evidence for her being biologically alive. And I think that *if* she is breathing even a single breath above the respirator, as her family claims, she is biologically alive. That's because being wholly brain dead is an extreme state. It isn't easily satisfied. It means the total cessation of *all* brain activity of all parts of the brain. So she might be biologically alive. I'm open-minded on that.

What *policy* matters follow from that is a completely different matter, and one on which I don't have strong feelings (except that no one who is not dead-dead should be a candidate for organ procurement, but that isn't relevant in her case). But the decision as to whether she is biologically alive is important from a medico-legal perspective and could affect other cases. This is why I'm interested in it. As far as the lawsuit against the hospital, obviously it makes a difference whether she is biologically alive or dead.

I'm open-minded on this to being convinced that she is biologically alive. Evidently other people aren't, and they keep wanting to drag in other things, such as her low "quality of life" if she is alive, or "who should pay" or what-not. That's not where my interest lies. In any event, I think this thread has remained open long enough.