OAKLAND -- The battle over a brain-dead girl remained in legal limbo Tuesday as a state appellate court judge postponed ruling on whether she should be removed from a ventilator, giving the family a few more days to find a facility that may be able to care for her.
Judge Robert Dondero of the 1st District Court of Appeals asked attorneys to submit updates by 4 p.m. Friday on Jahi McMath's status and her family's attempts to move the 13-year-old girl from Children's Hospital Oakland to a another facility. An Alameda County Superior Court judge on Monday extended an order forcing the hospital to keep Jahi on a ventilator until 5 p.m. Jan. 7.
Attorneys for the hospital submitted a 40-page motion to Dondero late Monday, arguing the family already had ample time to find another facility to take over Jahi's care and that she should be removed from her ventilator.
"Very sadly she's deceased and there's nothing anyone can do to change that status," hospital spokesman Sam Singer said. "We're going to fight in court to see if we can get the right thing to be done, which is to finally find peace for the body."
Jahi suffered complications after a Dec. 9 surgery to remove her tonsils and clear tissue from her nose and throat and was declared brain-dead on Dec. 12. Since then, her family has been battling the hospital to keep her on a ventilator; the fight has garnered national attention and a debate over the medical term "brain death" and whether such persons can recover, despite doctors saying that they cannot.
On Tuesday, Jahi family attorney Christopher Dolan filed a second brief with the appeals court, asking the judge to reverse earlier orders forbidding the hospital from giving Jahi a tracheotomy for breathing and inserting a gastric tube for feeding. However, a judge denied that request a short time later.
Hospital officials have refused to perform any medical procedure on Jahi since she was declared brain dead, saying it is unethical to do so. The hospital also will not allow an outside doctor to perform the procedures at Children's Hospital, according to spokesman Sam Singer.
"We want Children's Hospital to help us or get out of the way," Jahi's uncle, Omari Sealey, said.
Other facilities have said they will not accept her without the tracheotomy and the feeding tube.
Dr. Jessica Nutik Zitter, a Bay Area physician who specializes in critical and palliative care medicine, does not have personal knowledge of Jahi's case, but has practiced medicine for more than 20 years. She said that the growing amount of time Jahi has gone without nutrition -- almost three weeks -- would jeopardize her body's condition.
"Nutrition is essential to continued physiological processes," said Nutik Zitter. " A body can't go for much more than two to three to four weeks without nutrition. A young person may be on the longer end."
However, the doctor added, brain death would likely lead to total organ failure, regardless of whether nutrition is provided to the girl or not.
"Brain death doesn't usually go on for several weeks," she said. "The brain is responsible for autonomic processes and if the brain is not alive, certain autonomic processes will cease and result in eventual death."
Nutik Zitter said she has never heard of a case where a family has fought so many legal battles to keep a brain-dead person on machines in the hope that he or she would recover.
"The reality is doctors and hospitals don't usually do medical procedures on people who are dead," she said. "If we are doing things that we know are not medically appropriate, what does that say? I think it sets a very dangerous precedent.
"I think we have a lot of clear data on brain-death and we know there is a zero percent prognosis (for recovery)."
The family wants to transport Jahi 3,000 miles across the country and could be forced to do so without a feeding tube or a tracheotomy for breathing.
"Physically someone could be transported without the (breathing) and feeding tubes being surgically attached, but it's definitely very risky," she said. "(If the temporary breathing tube became disconnected during the flight), there is the possibility (that) they would not be able to reinsert it."
The hospital's attorneys argued in the motion submitted Tuesday that Nailah Winkfield, Jahi's mother, has had enough time to find a facility that would accept her daughter. "No such facility has been identified and it's not plausible that a medical facility will be identified to care for such a person," the hospital contended.
The family's court filings said New Beginnings Community Center in Medford N.Y., is willing to take Jahi and provide 24-hour medical care. The center was founded by a former hair stylist whose father suffered traumatic brain injury after a 2007 motorcycle crash.
New Beginnings founder and owner Allyson Scerri shared a statement on her Facebook page Tuesday explaining how her facility "is about preserving life and treating brain-injured patients with care and dignity."
"We do encourage every citizen to take the time to educate themselves more clearly on the issues of what brain death is and what it is not," the New Beginnings statement read. "This child has been defined as a deceased person, yet she has all the functional attributes of a living person despite her brain injury."
On Tuesday, the Terri Schiavo Foundation, named for the Florida woman who provoked a national debate about end-of-life-issues when she was diagnosed as being in a persistent vegetative state, said it had been helping Jahi's family find a facility that would take the girl.
The girl's uncle, Omari Sealey, said the family has contracted with an air ambulance to fly her across the country under the watch of a California doctor.
As of Tuesday morning, however, officials at Children's Hospital said they had not heard from the facility's medical staff, a requirement before any transfer could take place. Singer described paperwork submitted by the family spelling out the girl's transfer as "faulty."
The hospital's attorneys argue that since Jahi has already been declared brain-dead, her constitutional rights cannot be violated by taking her off the ventilator.
"There's no violation of any constitutional or statutory rights raised for the first time in this court because there is no parental, religious or privacy right to reject the scientific definition of death developed by medical professionals and enacted by the California legislature into state law with appropriate safeguards," states the motion.
The family's hopes were boosted Monday, when her grandmother said Jahi has been moving her legs and responding to her mother's voice, and her uncle said they have produced video to prove it. The family has declined to release the footage.
The hospital has dismissed such claims by Jahi's relatives, saying that any muscle activity was an involuntary muscle reflex.
Staff writer Matthias Gafni contributed to this report.