The family of the Bay Area girl declared brain dead last year after surgery wants a judge to declare her "not dead,” but a PR strategist who used to work for the hospital says the family lawyer’s effort is a publicity stunt to boost a statewide proposition on next month’s ballot to let medical malpractice plaintiffs collect bigger payouts.
Chris Dolan, the lawyer for the family of Jahi McMath, who was declared brain dead after tonsil surgery last year at the age of 13, has given $25,000 to the campaign for Prop. 46, a ballot measure that would boost the cap on verdicts from medical malpractice lawsuits from $250,000 to over $1 million.
But Sam Singer, the publicist who used to work as a spokesman for the hospital that treated Jahi and is now speaking out against Dolan, also has a stake in that campaign. Singer is paid as a publicist to work for the "No on 46" campaign, aiming to keep malpractice caps at their current level.
Describing the effort as the "cruelest publicity stunt of all-time," Singer theorized Dolan is seeking a judge’s order to declare the 13-year-old girl “not dead” at a court hearing on Oct. 9 to bring awareness to “things that can go wrong at a hospital.”
Singer noted the timing of Dolan’s legal request – about a month before the November elections. Secretary of State campaign finance records show the Dolan Law Firm gave $25,000 to the “Yes on Prop. 46, Your Neighbors for Patient Safety, a Coalition of Consumer Attorney’s and Patient Safety Advocates” in January.
If Prop. 46 passes, the cap on medical negligence lawsuits will increase “for inflation” from when it was first passed in 1975. In today’s terms, that would amount to about $1.1 million.
At a news conference on Friday, Dolan answered why he was seeking to declare Jahi “not dead.”
"This is no ruse,” Dolan said. “This is the truth."
Dolan presented what he says are the findings of independent brain research experts who performed brain imaging and other tests on Jahi at Rutgers University Medical School.
Jahi’s mother, Nailah Winkfield, said she finally has proof her daughter isn’t brain dead. She shared photos of the girl, appearing nourished and full of color, and videos that show Jahi apparently responding to commands to move her feet and hands. However, NBC Bay Area was not able to independently verify the videos.
Jahi's family filed a court petition Friday, asking a judge to reverse the girl's death certificate.
Dolan said Jahi has profound brain damage, but there is a difference between being brain damaged and brain dead. “This is unequivocal proof,” he said, pointing to an MRI photo.
Before the conference, Jahi’s uncle, Omari Sealey, told NBC Bay Area that “there are a lot of different reasons we’ve done what we’ve done. Sam can say anything he wants.”
Dolan has not filed a lawsuit against UCSF Benioff Children’s Hospital Oakland, and has previously said that his fight for Jahi is not about money. He did indicate this week, however, to reporters that Jahi could be eligible for state benefits if her death status is changed.
NBC Bay Area Legal Analyst Steven Clark said it would be very "unlikely" that a judge would rule that Jahi is now alive, but acknowledged it would be "fascinating."
If Jahi were "resurrected," Clark said, that would force the state to pay for her care — even, perhaps, back at Children's Hospital in Oakland. "This is a huge economic issue," he said.
This week, on behalf of Jahi’s mother, Latasha “Nailah” Winfield, Dolan filed a petition in Alameda County Superior Court for Judge Evelio Grillo to determine that the girl is “not brain dead,” even though the same judge had declared her dead on Dec. 24, 2013.
Dolan cited that Jahi’s circulatory system and “all her organs continue to function and world class experts in neurology and brain death” will provide evidence that the one-time 8th-grader at E.C. Reems Academy in Oakland “no longer meets the definition of brain death because she has 'neuralgic function.'”
Dolan wrote in his petition that Jahi has electrical activity in her brain, responds to her mother’s verbal commands, and has started menstruating. All are signs, he wrote, that the teen's brain death was “not irreversible.”
Dolan’s experts have not been vetted by the judge, and it's unclear how Grillo will weigh their testimony.
In his tentative ruling, however, Grillo said there are ways someone can amend a death record. But he felt that his court was not the right place to do so, suggesting that Dolan was not suing the right people and needed to find the proper agency to change Jahi's death status.
As of Friday, Dolan had not filed a petition to amend Jahi’s death certificate with the California Dept. of Public Health Vital Records. And the Alameda County Coroner had also not been served with any papers.
NBC Bay Area's Jodi Hernandez contributed to this report.