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Morain: A case full of tragedy and politics

  • Omari Sealey, left, uncle of Jahi McMath, speaks with attorney Christopher Dolan prior to a news conference Thursday, Dec. 19, 2013, in front of Children's Hospital in Oakland, Calif. McMath remains on life support at Children's Hospital Oakland nearly a week after doctors declared her brain dead, she had tonsil surgery on Dec. 9 to help her with sleep apnea but began bleeding and experienced cardiac arrest later that night. Doctors declared her brain dead on Dec. 12. (AP Photo/Ben Margot)

Jahi McMath could be any parent's daughter.

The 13-year-old eighth-grader went into Children's Hospital in Oakland for a tonsillectomy on Dec. 9. By Dec. 12, doctors determined she was brain dead, the result of severe blood loss after surgery. They sought to remove all life support, against the wishes of Jahi's mother, Nailah Winkfield.

For three weeks, the case has played out in news accounts and in courts, as the parents sued to stop the hospital from pulling the plug. On Friday, the sides agreed that Jahi could be transported to a nursing home where she would be maintained on life support.

The case is hardly over.

Plaintiffs' lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California's 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.

The case is rife with subtext. One is cost. The Affordable Care Act will provide health coverage for millions of previously uninsured people but does nothing to curb rapidly rising health care costs, probably its greatest omission. The health care industry will argue that any change in California's medical malpractice law will jack up health care costs. Doctors will threaten to flee the state. Plaintiffs' lawyers will scoff. Both sides will spin. There will be plenty of emotion, and talk of Jahi McMath.

The girl came to the public's attention on Dec. 15 when the Contra Costa Times reported on her family's fight to stop the hospital from pulling the plug.

By Dec. 18, Jamie Court, head of the Santa Monica-based advocacy group and initiative promoter Consumer Watchdog, called on Attorney General Kamala Harris, the California Medical Board and the Alameda County district attorney to investigate.

"As you probably know," Court wrote to the authorities and to the rest of us, "in a case where negligence is suspected, California law makes it highly advantageous for the medical providers and facilities involved if children die in hospitals rather than live a lifetime with catastrophic injuries and significant medical costs."

"Under a 38-year-old law, the Medical Injury Compensation Reform Act, that has never been indexed for inflation, the most a family can recover in court for the loss of a child is $250,000, no matter how egregious the malpractice. By contrast, the hospital would be responsible for a lifetime of care and caretaking, if the patient lives. In the hospital's rush to terminate Jahi's life, this conflict of interest was no doubt never explained to the family."


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