POSTED: 06:05 p.m. HST, Jan 03, 2014
LAST UPDATED: 06:07 p.m. HST, Jan 03, 2014
OAKLAND, Calif. >> A judge said Friday that the mother of a 13-year-old girl who was declared brain dead after tonsil surgery can remove her daughter from a California hospital if she assumes full responsibility for the consequences.
Alameda County Superior Court Judge Evelio Grillo said Jahi McMath can be transferred under a deal with Children's Hospital Oakland that will hold Nailah Winkfield accountable for developments that could include Jahi going into cardiac arrest.
The hospital has argued since before Christmas that Jahi's brain death means she is legally dead and she should be disconnected from the ventilator that has kept her heart pumping for 3 1/2 weeks.
Winkfield, refusing to believe her daughter is dead as long as her heart is beating, has gone to court to stop the machine from being disconnected. She wants to transfer Jahi to another facility after forcing Children's Hospital to fit her daughter with breathing and feeding tubes or allowing an outside doctor to perform the surgical procedures.
Grillo on Friday rejected the family's move to have the hospital insert the tubes, noting the girl could be moved with the ventilator and intravenous fluid lines she has now. He also refused to compel the hospital to permit an outside doctor perform the procedures on its premises.
The family's attorney, Christopher Dolan, nonetheless called the agreement a big step in resolving the dispute. Dolan said the family has located an unaffiliated physician to put in the tubes and that an outpatient clinic in New York that treats people with traumatic brain injures has expressed willingness to care for Jahi.
"This is a victory because we will now not run into any roadblocks with the hospital when we make the efforts to do this," Dolan said. "Time is of the essence."
It was unclear when the girl might be moved or if she would be, since her family still is trying to finalize where she would be taken and find a medical team to carry out the transfer. The move also could depend on the outcome of a separate settlement conference before U.S. Magistrate Judge Donna Ryu.
Jahi went into cardiac arrest while recovering from the Dec. 9 tonsil surgery. Three doctors have declared the girl brain dead based on exams and tests showing no blood flow or electrical activity in either her cerebrum or the brain stem that controls breathing.
Multiple outside doctors and bioethicists observing the case have confirmed that a patient in that condition meets the legal criteria for death and has no chance of recovering.
The judge earlier this week ordered Children's Hospital to keep Jahi on the ventilator until 5 p.m. Jan. 7. He said Friday that he would dissolve the injunction as soon as Winkfield assumes custody of her daughter's body.
Hospital spokesman Sam Singer said that if the girl is not transferred by the deadline, her family would have to seek an extension or the ventilator would be removed.
The Alameda County coroner's office issued a death certificate for the girl Friday but said the document is incomplete because no cause of death has been determined pending an autopsy.
Hospital lawyer Douglas Straus told reporters after Friday's state court hearing that he hopes the family will soon conclude the girl has passed away.
"It's horrible that this child has died. It's also horrible that it's so difficult for her family to accept that death," said Straus, choking up. "I constantly think that wouldn't it be great if they were able to come to terms with the terrible tragic event and that I didn't have to stand in front of you all time after time."