An Unlawfully dishonored Living Will – Part 2

An Unlawfully dishonored Living Will – Part 2

By: Barry E. Haimo, Esq.
January 6, 2014

Last week we wrote a post about the unfortunate and tragic story of a 13 year old teenager – Jahi McMath – who experienced a terrible adverse reaction to otherwise “routine” surgery for her tonsils. (All links are found below). Following the surgery, McMath began bleeding profusely and went into cardiac arrest. She was clinically diagnosed as being “brain dead” shortly thereafter. Since that time, her family has been fighting for prolonged treatment and care; more particularly fighting to be allowed to be transferred to another facility that will enable her to hopefully recover. They emphatically argue that she will recover and wants every bit of that opportunity. The doctors and the hospital where she was previously being treated do not share their hope.

In fact, in public legal documents, the treating institution, the Children’s Hospital Oakland, stated that “No amount of prayer, no amount of hope, no amount of any type of medical procedure will bring her back. The medical situation here in this case is that Jahi McMath died several weeks ago.”

The hospital sought to pull the plugs as the patient was clinically dead. Presiding Judge, Judge Evelio Grillo, appointed a neutral physician, Dr. Paul Fisher, to evaluate McMath on December 23, 2013. He concluded the following day that she fit the description of being “Brain Dead” and it was irreversible. Factors taken into consideration by Dr. Fisher related to responsiveness of her pupils, lack of blood flow to her brain and lack of electrical activity in her brain.

Court orders were issued delaying pulling the plug to machines keeping her alive, but ultimately the hospital was ordered to allow McMath to be allowed to transfer to another facility, the identity of which has not been disclosed due to the public nature of this terrible ordeal that the family is experiencing.

Accordingly to CNN expert physician, Dr. Sanjay Gupta, “brain death” is distinct from “persistent vegetative state” in that you are clinically dead. Dr. Gupta’s equation of brain death with cardiac death is not inconsistent with any other physicians that were interviewed. It’s just less understood by the general public and therefore significantly harder to swallow, especially because it happened to a 13 year old teenager.

The fact is that any “routine” surgery has risks. That’s why you will generally always have to sign a waiver or a document assuming the risks of surgery prior to being cleared to enter the operating room. Informed written consent is standard procedure for hospitals to protect themselves from these types of unfortunate cases. The reality is that the hospital and the doctors will be sued anyway, but that is a post for another day on another topic (asset protection).

It goes without saying that this case raises serious issues relating to the gray areas that we absolutely never think about on a day to day basis; mainly, what happens if we god-forbid experience a situation where our loved ones are left to decide our fate.

The bottom line is this tragedy represents a sharp reminder that life is transient, delicate and unpredictable. We truly never know what can happen to us and our families and it’s important to sit down and dedicate an hour or two in order to create an estate plan that is flexible and will adjust to changes in your life and your family members’ lives. Your plan will enable you to memorialize your wishes in writing so you and your family are all on the same page for whatever live brings. Then review it every few years or when there’s a major life change.

Prior Post: An Unlawfully dishonored Living Will – Part 1