January 7, 2014 | Posted By Bruce White, DO, JD

The events playing out in Children’s Hospital and Research Center Oakland as I write this blog are tragic and very sad.

On December 9, 2013, thirteen-year-old Jahi McMath underwent a complex tonsil and soft tissue surgery at Children’s Hospital. Physicians had recommended the surgery because she suffered from pediatric obstructive sleep apnea. Surgeons removed her tonsils, adenoids, uvula, soft palate, and extra sinus tissues. Her family reported that she felt fine after the surgery and even asked for a Popsicle because her throat hurt.

However a few days after the surgery, Jahi began to bleed profusely from her mouth and nose, and she subsequently suffered a cardiac arrest. She never regained consciousness after the arrest, and on December 12, 2013, her condition was such that the doctors were able to determine death by neurological criteria. When the doctors advised the family that they planned to withdraw life-sustaining medical interventions because Jahi was now dead, the family objected. At this point – as was reported by one news agency – the mother, Nailah Winkfield, said, “I just looked at the doctor to his face and I told him you better not touch her.”  The family obtained a temporary restraining order to prevent the hospital from removing the ventilator until the court was able to hear the case. Soon afterwards on December 23, 2013, Alameda County Superior court judge Evello Grillo appointed Dr. Paul G. Fisher, chief of pediatric neurology at Stanford’s Lucille Packard Children’s Hospital to examine Jahi and offer an independent to the court about her condition. In his report to the court, Dr. Fisher concluded: “Overall, unfortunate circumstances in 13-year-old with known, irreversible brain injury and now complete absence of cerebral function and complete absence of brainstem function, child meets all criteria for brain death, by professional societies and state of California.”  After reflection, Judge Grillo agreed with Children’s Hospital Oakland that Jahi was dead and ordered the hospital to maintain life support until 5 PM, Monday, December 30, to give opportunity for the family to file an immediate appeal or identify another facility that would accept Jahi’s body in transfer.

In cases like this, Sam Singer, the spokesman for Oakland Children’s, has said it: “There are no winners in this tragic case.”  But there major loses that may be important to recount:

  1. The family has lost a child. There are few losses more painful and unfortunate. Sadly, with this case, the grieving process too is delayed with attention focused on keeping the body intact, now three weeks after the death.
  2. Children’s Hospital Oakland has lost a patient. This too is a painful experience for caregivers.
  3. The good reputation of Children’s Hospital Oakland and other similarly situated hospitals has suffered. 
  4. Children’s Hospital Oakland has been required to use its resources to maintain Jahi’s body without the possibility of reimbursement from insurers or government plans. Once the patient has died, there are no more allowable charges for care provision. It would be fraudulent to bill for unnecessary medical services. It may be difficult to determine the costs here but even if it’s about $4000 per day for an intensive care bed, that’s close to $80,000 alone that the hospital will have to accept as uncompensated expense to this point. That expense will have to come from some account, and it probably will be deemed “charity care” that might have gone to other uses. The charges may run into the hundreds of thousands of dollars
  5. The community has lost. There may be more confusion now about “brain death” in the future, and this confusion may lead to more Jahi McMath-like cases.  The courts too have been involved in a controversy that the legal system is all too poorly equipped to handle. 


How many more times will families, caregivers, and communities have to go through cases such as this one before we develop more compassionate and just mechanisms to bring tragedies like Jahi McMath’s to an end sooner?

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

4 comments | Topics: Brain Death , Distributive Justice


sheila otto

sheila otto wrote on 01/07/14 3:19 PM

Unfortunately these cases serve no one, least of all the dead patient. On reading the news accounts, one may be left with the impression that accepting brain death is optional and yet we know that it is a legal definition of death in 50 states. No doubt the judge was trying to be compassionate but this was misdirected. In addition to the losses you mention above, anger on the part of the family has grown as an adversarial relationship has been fostered. This undermines public trust in medicine, unfairly.

Sheri wrote on 01/07/14 8:32 PM

The judges passed the buck. Apparently, it's common in cases like this, but it is truly inexcusable for them not to have ended this farce sooner. Additional losses include the fact that America's growing anti-science movement got a big boost, and the legislation that keeps malpractice awards reasonable, thus allowing physicians to afford to practice, may be at risk. Along with being tragic, this has been a very dangerous case for the American public.

Sheri wrote on 01/08/14 9:16 PM

An in today's paper, we learned that the family's lawyer is a board member of a personal injury attorney's association that just used this case in a fundraising letter. They are working to put an initiative on the CA ballot to raise the cap on malpractice awards, which would have a devastating effect on health care.


Sometimes, you really don't want to be right ...

Shannon wrote on 01/11/14 11:16 AM

As a critical care unit social worker, I have come across similar feelings in family members. Thankfully, my team and I have been able to help family come to terms with the death in most cases. However, one one particular case was exceptionally difficult which brings my newest concern about this case. According to the news the family has moved this child to a new facility. What kind of unethical facility accepted this child? And who transported her? In my similar case, the family found a facility to accept the patient, (facility in another country) but, ultimately they could not find a U.S. ambulance company to transport a dead body. I am very troubled that unethical transport and care facilities are taking advantage of this situation.

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