On Brain Death and Civil Rights

Posted in: Civil Rights

The unfortunate situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead a few days after a tonsillectomy surgery at Children’s Hospital Oakland last month, has captured national attention after the girl’s family refused to accept the doctors’ diagnosis of death. Although the case raises many interesting issues around end-of-life decisions, the legal definition of life (and death), the ethics of providing care to a deceased person, and many others, I will discuss here only the complaint filed in federal court asking for declaratory and injunctive relief against the hospital.

The complaint makes the following allegations:

  1. Violation of the Free Exercise Clause of the First Amendment of the U.S. Constitution
  2. Violation of the Right to Privacy under the Fourth Amendment of the U.S. Constitution
  3. Violation of the Right to Privacy under the Fourteenth Amendment of the U.S. Constitution
  4. Violation of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794)
  5. Violation of the Americans with Disabilities Act (42 U.S.C. § 12101)

In this column, I will briefly describe the facts of the situation, and then I discuss why each of these allegations is not likely to succeed.

The Sad Death of Jahi McMath

Jahi McMath, a 13-year-old girl, underwent a complex tonsillectomy surgery on December 9, 2013. After observing significant blood loss, cardiac arrest, and then complete loss of blood flow to her brain, doctors declared McMath brain dead on December 12. The family reportedly asked that she remain on a ventilator for 48 hours after that declaration, which is not atypical in that type of situation. However, during that time the family sought an attorney and asked the hospital to keep McMath on a ventilator through Christmas.

They also asked both federal and state courts to intervene, and the hospital was ordered to continue the use of the ventilator until 5:00 PM on January 7. The federal court declined, however, to require the hospital to insert a gastric tube and tracheostomy tube. As of the time of writing, a facility in New York has reportedly stated that it will offer long-term care to McMath, and she has been transferred to an undisclosed location.

Commentators reference ostensibly similar cases such as that of Terry Schiavo, whose family and husband engaged in a protracted and highly publicized legal battle over the appropriate care given her persistent vegetative state. Unlike those other cases, however, McMath lacks any perceptible brain activity. Thus, this is the first instance where the family of a legally and medically deceased patient outright refuses to accept the declaration of death.

Constitutional Violations Require State Action

Although the complaint names only the mother, Latasha Winkfield, as the plaintiff in the case, the allegations contained within suggest that both the mother and the daughter suffered violations of their constitutional and other rights. The defendants are Children’s Hospital Oakland (CHO), Dr. David Durand, and ten unnamed “Does.”

The most significant problem with the complaint is that a private actor, such as a nonprofit hospital like CHO, cannot violate an individual’s constitutional rights. The Constitution guarantees certain rights against government intrusion; it does not directly impose restrictions on the actions of private individuals. Thus, neither CHO nor any of the medical personnel named can violate the constitutional rights of any individual. The complaint alleges merely that CHO “receives funding from the state and federal government which is used to directly and indirectly to provide healthcare services.” This is not sufficient to establish government action and thus cannot sustain the claims of constitutional violations.

Because there is no state action as required in a claim of constitutional violations, these allegations are likely to fail.

A Deceased Person Is Not Disabled

The final two allegations in the complaint arise under federal statutes intended to protect disabled persons from discrimination. The Rehabilitation Act of 1973 provides that “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under” any program or activity that receives federal funding or is conducted by any federal agency. A “qualified individual” includes “persons with a physical or mental impairment which substantially limits one or more major life activities.” Although CHO does allegedly receive federal funding, the claims based on McMath’s disability are unlikely to succeed.

Under California law, “an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” In this case, Jahi McMath has been declared brain dead by two hospital physicians and three outside doctors. Thus, under California law (as well as the laws of the 49 other states), she is legally deceased and not a person within the scope of the Act.

Likewise, the ADA applies to disabled persons, where disability is defined as “a physical or mental impairment that substantially limits a major life activity.” Although it is the most substantial impairment of life, death cannot constitute disability for the purposes of the statute. Thus, it is likely that neither McMath nor her mother may be entitled to recover under this theory.


While the story of Jahi McMath is undeniably sad, it represents an often-irreconcilable schism between religious convictions and scientific fact. McMath’s family believes that they see signs of life when they touch her, and they are reportedly hoping for divine intervention to bring her back. Physicians describe that perception as merely wishful thinking by a grieving family. Although McMath’s family absolutely deserves answers and justice, this lawsuit in federal court will likely provide neither. At this point, the family needs time to heal and grieve, away from the public eye.

Ultimately, we must all understand and accept that with all of medicine’s advances and breakthroughs, it cannot (and likely will never be able to) “cure” death. Let this tragic case of Jahi McMath be instructive to all of us that no matter how young or old we are, it is important to discuss with our loved ones (and ideally, to put into writing) our intentions should we be unable to make decisions about our end-of-life care. Simply having the discussions can help us to better understand our own mortality and grow to accept that of those we love.

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