By Alix Rogers, CLB and SPINS Fellow
Jahi McMath is legally dead in the state of California. Yet, she is legally alive in New Jersey, where her body is currently maintained on life support and cared for by her family. In the coming months a jury in Alameda will decide if Ms. McMath should be brought back from the legal dead in California. Ultimately, it may be up to the California Supreme Court to determine the finality of legal death following a diagnosis of brain death in California. Concerns have been raised that this case could undermine the legal authority of brain death as legal death. While the prospect of raising Ms. McMath from the legal dead presents some interesting practical concerns, the case should not understood as threatening the legal or medical status of brain death in California.
In 2013 then thirteen-year old Jahi McMath underwent throat surgery at the Children’s Hospital Oakland (CHO). Following the surgery Ms. McMath experienced cardiac arrest, and was placed on a ventilator. Unfortunately the damage to her brain was too severe, and three days after her surgery Ms. McMath was declared brain dead by CHO doctors. Ms. McMath’s family fought with the hospital over the diagnosis, and the hospital’s later recommendation to remove the ventilator in a very ugly and public legal battle. After filing numerous lawsuits, the hospital and the family agreed to transfer Ms. McMath with medical care to a facility in New Jersey. Ms. McMath’s body has been maintained in New Jersey for the last four years connected to a ventilator and a feeding tube.
Despite remaining connected to life support in New Jersey, Ms. McMath is legally dead in California. CHO doctors and consulting independent neurologists concluded that Ms. McMath was medically brain dead. California law conforms with the Uniform Anatomical Gift Act, whereby whole brain death satisfies the legal requirements for death. §§7180 and 7181 of California’s Health and Safety Code recognize that a person who has experienced “irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” Judge Grillo, of the Alameda County Superior Court, found by “clear and convincing evidence. . . on December 24, 2013 that [Ms. McMath] had suffered brain death and was deceased as defined by the Health and Safety Code sections 7180 and 7181.” In addition, a death certificate for Ms. McMath was issued on January 3, 2014 by the Alameda County coroner’s office. The certificate lists December 12, 2013 as the date of death.
Yet, Jahi McMath is legally alive in New Jersey because New Jersey has a religious exemption for brain death. If a declaration of brain death would violate the religious beliefs of the individual patient, then death can only be legally declared on the basis of more traditional cardio-respiratory criteria. This religious exemption is a quirky feature of New Jersey law, which allows individuals to escape death, albeit only legally.
More immediately, Ms. McMath’s family has filed federal and state lawsuits in California. Both lawsuits assert that Ms. McMath is legally alive because she no longer satisfies brain death criteria. The federal case centers on the refusal of California to amend or invalidate Ms. McMath’s death certificate. The case was stayed pending the decision of the state court. The state case includes a cause of action for personal injuries against CHO. In order to recover under this cause of action, Ms. McMath must be legally alive in California. Otherwise, the family is limited to California’s noneconomic damages cap of $250,000 for wrongful death. In the California state case, Judge Pulido recognized that Ms. McMath’s mortality is a question of fact, subject to determination by a jury. As this case winds it way through the state court system there is a possibility that Ms. McMath could be resurrected from the legal dead.
Zombie apocalypse? A challenge to brain death? Not quite. If (and it is a big if) Ms. McMath does indeed have functioning parts of her brain, then she does not, and did not, qualify for medical brain death. If she was misdiagnosed, then she should be found legally alive. The prospect of misdiagnosis of brain death in no way undermines the appropriateness of legal brain death. The limits of medicine and technology require that the law accept some degree of uncertainty. For many years death under cardiopulmonary criteria had more uncertainty, most vividly demonstrated by the premature safety burial coffin designs patented during the 18th and 19th centuries. In fact, our legal system has a long history of accepting uncertain death. Under the inherited English common law missing persons can be declared dead after certain periods of time. In California, persons not seen or heard from in five years are presumed to be dead for purposes of probate. The presumption occurs sooner if there is evidence of specific peril. Beneficially interested persons can file a petition with a superior court for a death certificate in such cases. If alive, Ms. McMath therefore is as legally troubling as sailor who was previously lost at sea.
Although California has never overturned a diagnosis of brain death under §§7180 and 7181, as a technical matter it is not difficult. California already has an established system in place for amending death certificates where the facts, such as the occurrence of a death, are incorrectly stated. This provision can be utilized in the event a missing person presumed dead is later found to be alive. California law is quite flexible on the point of amendment. It leaves open the possibility that a death certificate can be amended at any point in time after it has been issued. As a technical legal matter, bringing Ms. McMath back from the dead is a relatively mundane matter of filing with the state or local registrar. The far more pressing question is whether Ms. McMath’s family will allow her brain to be measured by appropriate experts, and whether those experts will agree that Ms. McMath should be brought back to the realm of the legal living.
 Cal Health & Safety Code §7180.
 Dkt. No. 36-2, Ex. D at 16:20-22 in McMath v. California, No. 15-CV-06042-HSG, 2016 WL 7188019, at *2 (N.D. Cal. Dec. 12, 2016).
 On January 3, 2014, as part of the hospital’s agreement with Ms. McMath’s family to transfer her to New Jersey for continued care, Ms. McMath was first transferred (with medical care) to the Alameda Country Coroner’s office.
 The death of an individual shall not be declared upon the basis of neurological criteria pursuant to sections 3 and 4 of this act when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria pursuant to section 2 of this act. NEW JERSEY DECLARATION OF DEATH ACT, 1991 N.J. Sess. Law Serv. Ch. 90 (SENATE 1208) (WEST).
 As an aside it should be noted that misdiagnosis does not, as any 1L can tell you, prove medical malpractice occurred with respect to the determination of brain death. It must also be shown that the doctors were negligent in their determination.
 In proceedings under this part, a person who has not been seen or heard from for a continuous period of five years by those who are likely to have seen or heard from that person, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is sufficient evidence to establish that death occurred earlier. Cal. Prob. Code § 12401 (West). The common law rule is seven years. Pollack v. Hamm, 3 Cal. 3d 264 (1970).
 Pollack, 3 Cal. 3d at 269.
 Cal. Health & Safety Code § 103450 (West).
 Cal. Health & Safety Code §103225 (West).