Dead or Alive – the untold story of Jahi McMath and the law

Largely undebated in the Jahi McMath story is how the medical establishment benefits if the 13-year-old California child is found dead rather than alive.

Jahi McMath was in California when she underwent a routine tonsillectomy at Children’s Hospital in Oakland. She woke up after surgery, began bleeding and eventually went into cardiac arrest. A coroner issued a death certificate dated December 12 after testing indicated Jahi is brain dead. Only, Jahi is on life support. She is still breathing. Her heart is still beating.

Jahi’s body may be kept alive indefinitely. Her family clings to slender hope. Doctors and ethicists debate where life ends and death begins.

That is the human story. Let’s look at the legal.

In California, the medical profession is protected from civil lawsuits by a 1970’s vintage law known as the Medical Injury Compensation Act of 1975 (MICRA).

Under MICRA, if the McMath family pursues a medical negligence lawsuit against Children’s Hospital and the doctors who treated Jahi, they can recover no more than $250,000 in what are known as “general damages,” what lay people know as pain and suffering.

Special damages, things like medical expenses, do not have a cap.

So, here is how it works.

If Jahi McMath is truly dead and died because of medical mishap, then the most her lost life is worth in a courtroom is $250,000, plus reasonable medical expenses after the surgery (probably not all that much), less attorney fees and legal costs.

If Jahi McMath is alive and living on life support because of medical negligence, then her life is worth the $250,000 in pain and suffering, plus medical expenses after the surgery of as much as $7,500 per day. (The later amount comes from Dr. Art Caplan, head of the Division of Medical Ethics at NYU Langone Medical Center, as quoted in a recent NBC News story.)

California’s Judicial Council publishes a life expectancy chart in its jury instruction books that give Jahi another 69.2 years to live. If she reaches that normal life expectancy – not likely given her incapacity, but not impossible either – then at $7,500 per day, her medical expenses can be projected to total $2,737,500 per year, or $189,435,000 over 69.2 years, using simple arithmetic.

So, alive, Children’s Hospital and Jahi’s doctors could be looking at a verdict of around $190 million, give or take.

Not that the doctors and hospital have that much insurance.

In other words Jahi McMath’s doctors and Children’s Hospital have a significant financial interest in persuading the world that Jahi is dead and cannot ever recover regardless of any advance in medical technology or the hand of God.

This is not to cast aspersions on anyone’s integrity or assign bad motives. It is simply a fact.

Old western wanted posters made no distinction between bringing in outlaws “dead or alive.”

California’s modern legal system prefers patients who are dead.

Click here for an article from January 2017 for an update on the case

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.