Family of Brain Dead Jahi McMath Alleges Medical Negligence Against Children's Hospital

A little more than a year after then-13-year-old Jahi McMath was declared brain dead, the Oakland teen's family filed a lawsuit Tuesday against the hospital where she received surgery for her sleep apnea.

The 12-page lawsuit filed in Alameda County Superior Court alleges medical negligence. The suit alleges her doctor recommended risky surgery for the girl's sleep apnea despite the fact that "less drastic treatments" are usually tried first in pediatric cases, the family's new lawyer, Bruce Brusavich, claimed in a statement.

The suit claims that Jahi's nurses violated the standards of "competent performance" as set forth in the Nuse Practice Act.

And the suit also alleges that Jahi's parents, Latasha and Marvin Winkfield, became the target of an "aggressive campaign" by the hospital to persuade them to "terminate Jahi's life support and donate her organs, even as the hospital evaded the Winkfields’ questions about what happened to their daughter." At one point, the suit claims, David Duran, chief of pediatrics, "began slamming his fist on the table and said: "What is it you don't understand? She is dead, dead, dead, dead!"

In a statement emailed to NBC Bay Area on Tuesday, UCSF Benioff Children's Hospital Oakland said: "Our hearts go out to the McMath family. We are not aware of any litigation filed by the McMath family, but it is our policy not to comment on any litigation that mightbe pending."

The Oakland Tribune first reported the story.

The family’s prior attorney, Chris Dolan, has repeatedly insisted he would not sue the hospital.  Brusavich, a personal injury attorney in Torrance, is Dolan’s friend, the Tribune reported. Brusavich's suit asks for unspecified medical expenses and funds for "negligent infliction of emotional distress." California currently caps medical malpractice damages at $250,000.

Ivan Golde, a personal injury attorney in Oakland not associated with the case, told NBC Bay Area that there is a high standard the family must prove to win, showing that the doctor made a "gross mistake." But, Golde added, "the family is desperate."

Jahi went in for surgery in December 2013, and was pronounced brain dead three days afterward. Her family won a contentious court battle to move her to New Jersey despite doctors from Children's and Stanford University ruling that she was legally dead and should be taken off life support.

The family, who believes she is still alive and may one day recover, set up a fundraising website to help cover the expenses of her 24-7 care. As of Tuesday morning, about $63,000 had been donated.

In March 2014, her mother, Nailah Winkfield, told NBC Bay Area her daughter was improving, and described her as being asleep. On Feb. 17, Winkfield posted a Facebook picture of the two of them in bed together. The mother is seen kissing Jahi's head.

Among the allegations in the 12-page suit:

•  Dr. Frederick Rosen, an ear, nose and throat surgeon, did not notify nurses of an abnormal artery in Jahi's throat, near the surgery site, that increased risk. Jahi ended up having an adenotonsillectomy, uvulopalatopharnygoplasty and submucous resection of her bilateral inferior turbinates. The suit claims that Rosen, considered an expert in his field, should have started with simply removing the tonsils and the adenoids first.

•  One nurse, the suit claims, told family members to suction the blood, which they did for about an hour; another nurse later told them that doing so would remove blood clots vital to recovery.

Tha't's when Winkfield called her mother, Sandra Chatman, a longtime nurse at the Kaiser hospital in Oakland. Jahi's family said she bled from at least 7:30 p.m. until about 12:35 a.m. the next morning, when a doctor arrived, hours after the family first asked for one, and five minutes after Chatman, who was concerned about her dropping heart rate and the bleeding, asked for the code to be called.

"The defendants were negligent in every step of this tragedy," Brusavich said. "The result is that a 13-year-old girl will never lead a normal life."

NBC Bay Area's Bob Redell contributed to this report.

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