Jahi McMath was declared brain dead following complications related to tonsil / sleep apnea surgery at Children’s Hospital in Oakland California. Jahi developed post-op bleeding and went into cardiac arrest. Several doctors examined her and declared she satisfied criteria for brain death. And she was indeed declared dead. Under California law, brain death equals death.


The hospital wanted to remove Jahi from the ventilator. The patient’s family filed a court action arguing that the hospital should not have the power to do so. Removing the ventilator would cause cardiopulmonary arrest. The family believed it was premature to make that call.

When patients are declared brain dead, the doctors and hospitals usually wait a little while to allow family members to gather and see the patient one more time. I am unaware of any patient declared brain dead maintaining homeostasis and circulatory status for any significant length of time. Even if left on a ventilator, such patients typically go into circulatory arrest within days or weeks at most. That said, with aggressive circulatory, nutritional, and endocrine support, it is theoretically possible to prolong this state.


The judge prevented the hospital from removing the ventilator until the family and hospital had a chance to mediate next steps. As I write this, Jahi has been moved to a separate facility (that accepted the transfer). Ventilator and circulatory support will continue – but not at Oakland Hospital.


This is a tragic case. You would have to have a heart of stone not to feel empathy with the family. Death is final. Death is irreversible. But, there are a number of consequences that merge when doctors are blocked from making the final call on death.


There will almost certainly be a lawsuit related to Jahi’s care. In California, damages are calculated based on economic damages – such as lost wages and medical expenses; plus noneconomic damages – such as pain and suffering.


Economic damages: For a 13 year old, there will likely be no payment for lost wages. Medical expenses incurred until the moment the patient was declared dead would be included in the calculation. Whatever that number is, it can be calculated with certainty.


Noneconomic damages: For years, non-economic damages in California have been capped at $250,000. So, the maximum calculation here would be $250,000.


What if the declaration of death is rendered moot? Then economic damages has the potential to explode. The plaintiff would present a life-care plan estimating the cost of keeping such a patient in a facility for a long time period. Using numbers similar to those for a patient with persistent vegetative state, that number could be in the tens of millions. In fact, aggressive treatment of such a patient might even cost more than management of patient with persistent vegetative state. It’s probably closer to that of a patient with high level quadriplegia.


If you’re the doctor who has a $1M / $3M professional liability policy, what do you do? I don’t know. Presumably, you’re in the same sinking boat as the hospital.


For patients in a persistent vegetative state, it’s a bit easier for the families to consider settling. That patient will qualify for state and federal assistance. So, even if the family does not collect tens of millions to maintain a life care plan, there is a theoretical source of funds to make sure the patient is taken care of.


But, when a patient is declared brain-dead, there is no patient, per se. I am skeptical that Medicare or Medicaid (or any private insurance carrier) would pay to maintain treatment of an individual declared brain dead. Which brings us back to Children’s Hospital and the doctors who work there. If this case goes to court, and brain death is declared insufficient to define death, the jury will deliver an eye-popping verdict that affect all doctors taking care of critically ill patients.


The family’s bills from the new facility will be too staggering to consider any alternative to a multi-million dollar settlement. There will be no third party funding to make up the gap.


Let me be perfectly clear here. I make no comment on the motivations of Children’s Hospital or Jahi’s family. My baseline assumption is that Children’s Hospital is adhering to the long standing medical ethical principle that doctors are not obligated to provide futile care. I further assume that Jahi’s mother is grieving for her child and wants to do everything possible for her.


If courts are the final arbiter of death, we will need a different mechanism tham professional liability insurance to pay for the unintended consequences of this tectonic shift.