Apologies in advance for a very legal/technical answer. I feel very sorry for this family. We lost my father after a "routine" surgery earlier this year (a laparoscopic hernia repair) and I personally know how hard it is to recognize that the person you love is gone, even if their heart is beating and their skin is warm. We made the decision to take my father's body off of the machines and I don't wish that experience on anyone.
If an appeals court determined that Jahi McMath was not "dead", it would overturn long-standing practices in the medical community, create a care and funding crisis and, on a micro-level, would dramatically affect the all-but-certain medical malpractice lawsuit in this specific case.
Physicians are better qualified to speak of the impact that a decision that Jahi is not "dead" would have in the medical world. Hopefully they will add their answers here. From a legal standpoint, "Brain Death" is a legal concept defined in the Uniform Determination of Death Act, and adopted by most states (including California, where Jahi died). It has been the widespread standard for determining death since the 1980s. Under the act, "death" occurs when one of two things happens: An individual sustains either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.
It is widely reported that a number of physicians, including a court-appointed independent physician, have determined that Jahi met the second criteria (You can read the redacted notes of the Court-appointed physician here: Page on Nbcbayarea , and read a physician's explanation of the process here: Jahi McMath Died and What Followed Has Been Tragic) . Assuming that has occurred, Jahi clearly meets the legal definition of "dead", and a court determination to the contrary would overturn the current law. This would require adoption of a new definition of "death", and would stir up a host of questions and problems, such as:
- Moral/emotional distress from people who "pulled the plug" relying on determinations of brain death;
- Debate/uncertainty about which standard to use until new criteria are established/accepted/passed into law (and possible conflicting standards across different jurisdictions);
- Ethical conundrums for physicians, including possible hesitation to put people on "life support" to begin with, in light of the other problems;
- Resource allocation problems caused by crowding hospitals with brain-dead bodies on respirators;
- Increased difficulties in obtaining transplant organs (it is my understanding that the timing is much more delicate and the outcome much less predictable when organs are harvested from a person who suffered cardiac death).
A second important legal precedent affected by the McMath case (should it proceed to a court high enough to bind its decision on lower courts), would be the problem of paying for the care of a brain-dead corpse. Per reports I have read, Ms. McMath had medical insurance. However, medical insurance coverage for an individual ends at the time of death. For example, in an organ transplant situation, the insurance of the recipient will pay for the transfer, not the insurance of the deceased (removal of the cadaver and transportation to the funeral home is paid by the decedent's family, his/her estate, or by burial insurance). A hospital can bill the estate of the deceased for medical expenses incurred after death, but their recovery would be limited by the amount of money in the estate (and often less, after widow's shares, priority debts, etc. are taken care of). Jahi's entire estate is likely to be the value of her medical malpractice action...which brings me to my final point.
Although the legal/medical community at large have a clear stake in larger issues implicated by this matter, there is a more immediate, practical result of the Court's determination as well. If Jahi is dead, the most her family can recover is $250,000 (which would entitle their attorney to a maximum fee of $74,150, since California law also caps contingency fees at 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000 (Cal. Bus. & Prof. Code § 6146 ). If she is legally "alive", this is a multi-million dollar case.
California limits recovery of "non-economic" losses, such as pain and suffering in medical malpractice cases to $250,000 (Cal. Civ. Code § 3333.2). However, they do allow recovery of "economic" losses in addition to that amount.
I don't mean to imply that the family is motivated by this information, or even that they are aware of it, but the hospital and the family's lawyer most assuredly do know the financial stakes.
For many people (ex: a banker injured in a surgery), the most significant economic loss is a loss of income. If a person made $100,000 per year before the malpractice and is unable to work afterwards, he has lost income in an amount of $100,000, times however long he is expected to continue working. For example, if our banker is 40 years old, and is expected to work until he is 65, his lost wages would be $2.5 million dollars. Because Jahi is a child, she doesn't have any lost wages (even though it is likely that she would have held a job if she reached adulthood, there isn't enough certainty to include such losses).
The other major type of economic loss is medical expenses. The cost of remaining hooked up to a respirator varies, but the "mean" cost is reported to be about $30,000 (up to $70,000) per day for an intensive care patient hooked up to a respirator (see: Daily cost of an intensive care unit day: the ... [Crit Care Med. 2005]). Since a brain-dead person might be moved out of intensive care, the cost could be less but, per the article cited above, the cost of ventilation, alone, seems to contribute about $20,000 per day toward medical costs. I don't know how long a body could remain on a ventilator, but assuming that it was even one year, then using the conservative $20,000 per day estimate would result in medical losses of $7.3 million dollars (and a $1.13 million fee for the lawyer). If medical losses are collected, and the decedent is taken off the respirator (either because of cardiac failure or because the family finally comes to term with their loss), they don't have to return any of the money.
In follow up to the comment, "Perhaps I missed it, but why doesn't the hospital want to transfer her? Since the cost of keeping this dead body alive is so prohibitive, why wouldn't they want to get out from under this burden, if only for financial reasons?", I added the following response:
"Cyndi, the hospital does not want to transfer her (or perform additional medical procedures, as Melissa notes below) because transferring her someplace for additional treatment is contrary to the legal holding that she is dead.
The hospital (and, in my opinion, society at large) has a strong interest in the determination of death being upheld. The hospital/medical community has the additional interest of clarifying that, under California law, the treatment provider, and not the family, has the power to determine when treatment will stop. (which I didn't note in my original answer, but which the Hospital's attorney lays out really well in his reply to the request for injunction in the Federal Court filing (the document is available for download here, but the computer I am on is blocking it: http://www.insidebayarea.com/news/ci_24825955/document-hospital-decries-jahi-mcmath-familys-wishes-keep?source=pkg) ) .
Nothing happens in a vacuum. Whatever the ultimate decision is in this case, others will point to it when they find themselves in similar situations. A thousand different people might have a thousand different opinions about when a person is really "Dead". Because there is a high societal cost associated with keeping someone on ventilators, the legislature, through the UDDA, has drawn a "black line" to determine the moment that death legally occurs so that we don't have to go to court every single time.
Also, the legal and medical tradition holds that you cannot FORCE a doctor to perform a procedure. If the Court orders the hospital to insert the tubes, it would be a shocking break in existing precedent (and I would expect it to provoke a great outcry in the medical profession).
To address the financial issue- 1) As I set forth above, transferring Jahi's body to a different facility and keeping it on mechanical respiration for an undetermined amount of time has the potential to dramatically affect the calculus of the medical malpractice action. Also, the ONLY facility that has been identified as willing to accept Jahi is the New Beginnings in New York State (About New Beginnings Community Center). Notably, New Beginnings 1) is self-characterized on the page I link to as a community center "providing office space for professionals"; 2) Does not have a doctor on staff; 3) Is not a licensed hospital facility; The "Brendan House" where they propose to house Jahi's body is not completed (in fact, it seems from their Facebook page that they only received their building permit on December 15th (The Brendan House Project - Riverhead,... - The Brendan House Project - Riverhead, N.Y.). New Beginnings is not equipped to take Jahi's body right now, so there is no one (not identified at this time, at least) who CAN take her body away from Children's right now.
As I described in my answer, insurance will not pay for treatment now that Jahi is legally dead. I also provided cites to support the notion that being on a respirator costs at least $20,000 per day. Therefore, as of today (January 3), keeping Jahi on a respirator has cost at least $460,000. The family DOES have a gofundme, and has raised (as of a few minutes ago (http://www.gofundme.com/Jahi-Mcmath) almost $45,000. They needed about $30,000 for the air ambulance, so - applying the remaining $15,000, there are $445,000 in unreimbursed expenses so far. Ultimately, Children's hospital will eat these expenses. Children's hospital is a non-profit. Therefore, this does not mean $445,000 less in the pockets of shareholders. It means $445,000 less for the treatment of children with a meaningful chance of recovery.
Finally - assuming that the family did have the money to cover all of her expenses out of pocket....Is it fair for a family with resources to be allowed to keep their child's body on life support when a family without resources cannot?"
The Federal Court's Order Denying Motion to Require Insertion of Feeding Tube
Declaration and State Court Docs Part I
State Court Docs - Part II
State Court Docs - Part III