What a mess.

The family of Jahi McMath, the teenager who was declared dead by neurological criteria in three separate examinations after a tonsillectomy, wants her moved to a different care facility so life support can continue. The hospital is resisting. From the San Francisco Chronicle story:

The family of a 13-year-old girl who has been declared brain-dead has found a nursing home that will keep her on a breathing machine while relatives pray for a miracle, the family’s lawyer said Thursday. However, Children’s Hospital Oakland, where Jahi McMath underwent tonsil-removal surgery Dec. 9 and then suffered cardiac arrest, objected to the transfer and said it was not authorized by the judge who ordered the girl kept on a ventilator.

After hospital physicians’ finding of brain death was confirmed by a court-appointed doctor, Alameda County Superior Court Judge Evelio Grillo ruled Tuesday that the girl was legally deceased and that the hospital could discontinue medical care. But he extended until next Monday a restraining order requiring connection of the breathing apparatus. Jahi’s family contends she is still alive and spent Christmas at her bedside. Their lawyer, Christopher Dolan, said Thursday that a nursing home has agreed to take her, and he is negotiating with Children’s Hospital and insurance companies to insert breathing and feeding tubes that would allow her to be moved . . .

The hospital said it “does not believe that performing surgical procedures on the body of a deceased person is an appropriate medical practice.”

This raises very important legal and bioethical issues and distinctions that I think we need to explore.

This is not futile care case. Medical futility disputes generally arise between a family that wants life supporting treatment to continue and hospital doctors/bioethicists that want it terminated.

Futile care cases involve unquestionably living patients. The dispute concerns whether the cost of care and the quality of life for the patient justifies maintaining his or her life and vetoing patient or family decisions to continue treatment. In other words, it involves a form of health care rationing.

In contrast, Jahi’s case involves whether — and please excuse me for seeming insensitive here — a cadaver should be maintained indefinitely on life support. In other words, as a matter of respecting the dead and properly managing scarce medical resources, can the family force the hospital, doctors, nurses, and whatever entity is funding the application of medical technology, to keep Jahi’s body going? Under California law, the clear answer is no.

Can the insuring entity and a nursing home agree voluntarily to continue the application of medical technology? I don’t see why not.

But the judge will be under great pressure to say no. Why? Doing so will sow great confusion in the general community by sending the false message that Jahi is alive. And eventually, Jahi’s body will begin to deteriorate, as happens in all but the rarest “brain dead” cases.

But. If the medical maintenance is terminated by force — when there is agreement to allow it to continue — that coercion will sow greater distrust in the community about the health care system — already badly eroded. And in this particular case, I worry that some will consider such a move to be racially motivated.

Like I said: What a mess.

My opinion? I think properly diagnosed brain death is dead. If it were my loved one, I’d let her go.

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Wesley J. Smith, J.D., Special Consultant to the CBC
Wesley J. Smith, J.D., Special Consultant to the CBC