By Nick Cahill

Magnified by a 2016 case in which doctors removed an infant from life support over the parents’ objections, a fight over California’s longstanding standard on brain death sharpened Monday at the Ninth Circuit.

The attorney for Jonee Fonseca, whose child Israel Stinson was deemed brain dead by doctors at several hospitals before being taken off a ventilator, argued the state cleared the way for doctors to end Israel’s life support based on a faulty 1982 law.

Matthew McReynolds says the California Uniform Determination of Death Act – called “CUDDA” in Monday’s proceedings – gives doctors the ability to act as “both judge and executioner” and needs to be scrapped by the courts.

“If not now, then when? I don’t know how much more concrete we have to get than the death of this child,” McReynolds asked the three-judge Ninth Circuit panel.

The matter dates back to 2016, when doctors in Northern California determined Israel had suffered a heart attack that left him brain dead. Fonseca filed emergency motions hoping to ban Kaiser Permanente hospital from removing Israel from life support, but both were denied. Fonseca then moved Israel to a hospital in Guatemala on May 22, days before a deadline that would have allowed Kaiser to take the toddler off life support.

After nearly three months in Central America, Israel was moved to the Children’s Hospital of Los Angeles, where doctors once again declared him brain dead. Fonseca then filed and received a temporary restraining order from a Los Angeles County Superior Court judge, stopping the hospital from taking Israel off his ventilator.

A week later, the court dissolved the restraining order and doctors shut off Israel’s life support. According to Fonseca’s Ninth Circuit brief, the children’s hospital “forcibly removed life support” while attorneys were simultaneously attempting to file another appeal with California’s Second Appellate District.

The Ninth Circuit hearing is the latest in a legal challenge that has drawn comparisons to Jahi McMath, a 13-year-old girl who was declared brain dead in California in 2013.

McMath’s family refuted the doctors’ determination, citing religious beliefs, and moved the teenager to New Jersey.

After over four years of being on life support, McMath died in June 2018.

During a 40-minute hearing Monday in San Francisco, the Ninth Circuit panel pressed whether the family has any pending insurance claims or other financial obligations that could be affected by an eventual ruling.

Fonseca wants the state to amend the date on Israel’s death certificate and have the lawsuit remanded to federal court in Sacramento for consideration on the merits.

McReynolds said he wasn’t aware of any pending insurance claims and that the family is simply seeking “dignity.”

In 2017, U.S. District Court Judge Kimberly Mueller noted California’s brain death standard is widely accepted by the medical profession and found Fonseca lacked standing to sue the state or California Department of Public Health director Karen Smith.

In her ruling, Mueller rejected the notion the California Uniform Determination of Death Act influenced Israel’s doctors’ determinations or prevented doctors from performing additional testing.

U.S. Circuit Judge Richard Clifton said it’s certainly possible that the law played a role in the doctors’ assessments.

“The notion that there’s not a connection between the statute and the actual decisions from the doctors is a hard one for me to appreciate,” Clifton, President George W. Bush’s first appointment to the Ninth Circuit, said.

Smith’s attorney Samuel Siegel told the panel that even if California had no brain death law for physicians to consult, doctors would still have come to the conclusion that Israel should be taken off life support.

“I continue to be puzzled how as a factual matter we can be so confident that the statute was just irrelevant and had no role in the causation,” Clifton interrupted.

U.S. Circuit Judge Michelle Friedland seemed more skeptical as to whether CUDDA impacts a doctor’s conclusion that a patient is brain dead or not.

“We’re trying to figure out does the statue cause anyone to be dead, and I don’t see how it does,” Friedland, a Barack Obama appointee, said.

Siegel told the panel the Legislature based the law on reliable medical studies and that it has been adopted by many other states.

“The underlying facts in this case are undoubtedly tragic, but the district court correctly held that after three attempts, that the plaintiffs here could not plausibly allege that CUDDA’s brain death provision caused doctors to remove Israel’s life support,” Siegel said during his 15-minute allowance.

The panel took the matter under submission and did not indicate when it would rule.