Can a Girl Declared Brain Dead File a Medical Malpractice Lawsuit?

In December of 2013, a family took their 13-year-old daughter to Children’s Hospital in Oakland for a routine tonsillectomy. They couldn’t have imagined that their daughter might not pull through the common surgery, nor did they imagine the legal battle that would result. Now a medical malpractice lawsuit and the funds to continue life support hang on one question. Is their daughter dead or in a “minimally responsive state”?

Will a Declaration of Brain Death Hurt a Medical Malpractice Lawsuit?

Here in California, damages for pain and suffering are capped at $250,000 when it comes to medical malpractice cases. However, if a victim has ongoing medical costs as a result of their injuries, juries can award unlimited economic damages. These unlimited damages cannot be claimed if the plaintiff is dead, which is where trouble begins for this California family.

During a routine surgery, the family’s 13-year-old suffered massive and irreversible brain damage due to a lack of oxygen. She suffered a cardiac arrest and was put on life support. A month later, the girl was declared brain dead and the coroner signed her death certificate, but the girl’s mother refused to take her off life support.

Why Is This Little Girl Still on Life Support?

The religious beliefs of the girl’s mother do not acknowledge brain death as actual death. And though most states do not accommodate such beliefs, New Jersey does. The girl was taken to New Jersey to remain on life support, and now a legal battle is being fought so that her care may continue back in California.

As the girl has been cared for in New Jersey, her parents and family members have claimed she is semi-responsive. They have posted videos online showing the girl twitching and allegedly responding to noxious smells. Though doctors back in California claim that even a brain-dead individual can occasionally twitch, a critic of brain death diagnoses has another opinion.

Doctor Alan Shewmon has examined the girl, and witnessed her reactions to smell, and he does not believe the girl is actually brain dead. He also claims the girl’s body has not deteriorated as it should have if the girl was brain dead. Another doctor who examines the girl every three months has even claimed the girl has reached puberty.

Will This Girl’s Death Certificate Be Overturned?

Based on this evidence and testimony, a judge here in California has ordered this case to trial. If the girl is declared dead, she may not return to California, but if her death certificate is rescinded, California doctors will be compelled to continue her treatment. Now only a jury can decide.

Medical malpractice cases can be complex, and the lives of families as they look to care for injured loved ones hangs in the balance. Experienced representation with a record of success can often be the better solution for these families in need. Don’t be afraid to contact a Bay Area medical malpractice attorney if you suspect your loved one received negligent treatment.