Wednesday, January 22, 2014

Attorney for Jahi McMath’s Family Defends Protecting Her Right to Live


The controversy that brewed nationally weeks ago over Jahi McMath, who was left in a precarious medical state following a botched tonsillectomy, sparked controversy within event pro-life circles.
Jahi was transferred from Oakland Children’s Hospital January 5 after a protracted legal battle between the family and the hospital which declared Jahi brain dead December 12 and sought to remove her from a ventilator.
JahiMcMath2Although the hospital maintains McMath is “brain dead,” her mother and family say she is alivefollowing a tonsillectomy gone awry that has left her in an incapacitated state since early December. The family in the case says the hospital has been starving Jahi for three weeks.
Christopher Dolan, the attorney who took up for the parents by acting as their pro bono representative while they fought the hospital to provide adequate care and food and water for their daughter, has an opinion column in the Los Angeles Times today explaining why he took the case. Dolan’s comments, without further ado, are quite compelling and give good food for thought.
From the column:
I am the attorney who answered a call for help from Jahi McMath’s family in December. I have represented them for free — starting 10 hours before the first order to turn off Jahi’s ventilator at Children’s Hospital Oakland — as they have fought for their right to make medical decisions for a beloved child.
Despite the incendiary, hateful public rhetoric that has surrounded this case, I believe that self-interest alone should lead most Americans to thank Nailah Winkfield, Jahi’s anguished mother, for her courage.
It has been amazing to see how many people think they have a right to an opinion about this child, this mother, this family and the issues in this case. Self-righteous commenters and commentators who have no firsthand knowledge of the facts or the people involved pretend they can somehow know not only what’s best for Jahi but what’s best for society in such situations. They take it upon themselves to proclaim what will relieve or prolong the family’s suffering, what will desecrate Jahi or honor her, and they feel justified in sharing it with the world in mean-spirited terms.
For the most part, those who have attacked Jahi’s family argue these simplistic, uninformed points: The family is either stupid, misled by their lawyer or trying to exploit the system. Why can’t they simply accept the doctors’ decrees? Why should they be different?
What happened to Jahi at Children’s Hospital Oakland will most likely be a matter of litigation. But if you were Jahi’s mother, would you want the doctors and hospital authorities you believed had contributed to — or even caused — your child to be declared “brain dead” making final decisions about her?
Over my legal objections, Nailah Winkfield was cruelly made to go to the Alameda County Registrar of Births and Death to get a “death certificate” in order to move Jahi out of the hospital to a site where she could receive care. It required the intervention of the coroner because, at first, even the official at the agency didn’t want to issue the certificate — after all, Jahi was connected to a ventilator and her heart was still beating.
Those who condemn Jahi’s family appear to have no idea that doctor-decreed “brain death” is not sufficient as a declaration of death everywhere in the United States.
In New Jersey and New York, for example, there is accommodation for those who do not accept “brain death” as the appropriate criterion. According to New Jersey law, “the death of an individual shall not be declared upon the basis of neurological criteria … when such a declaration would violate the personal religious beliefs or moral convictions of that individual.” The McMath family’s position isn’t ridiculous or unheard of. There would have been no legal battle if Jahi had had her tonsils out in New Jersey.
And the rush to abrogate Nailah and Jahi’s constitutional rights is as reprehensible as the widespread ignorance about the limits of “brain death.” These rights include the 1st Amendment right to freedom of expression of religion, and the 4th and 14th amendment rights to privacy and personal liberty.