Robert A. Solomon, P.C.
Two Offices Serving New York & New Jersey

Decision on brain death can defeat a personal injury claim

Brain injuries, particularly when caused by the negligence of another person in New Jersey or elsewhere, can be extremely complicated. This is especially true if the tragic result of a possible brain death has occurred.

The effect of differing medical malpractice and other laws among the various states, including New Jersey, can affect a wrongful death or personal injury case profoundly.

Teenager’s brain injury may amount to brain death

Recently, the issue of whether a teenaged girl is actually brain dead has been the subject of a legal dispute involving the states of New Jersey and California. In 2013, the young girl suffered cardiac arrest and a resulting serious brain injury in a California hospital during a routine tonsillectomy. Due to apparent brain death, a California death certificate was issued in January, 2014.

States differ on right to life support

However, the girl was on life support, which her mother refused to take her off of despite the death certificate. Citing a fearing that California would not allow her to remain on life support because it would recognize the death certificate as valid, the teen’s mother moved her to New Jersey in 2014 for continued care. New Jersey respects a religious exemption to removing life support while California does not.

California places monetary cap on family’s pain and suffering

The mother also initiated a lawsuit, with the daughter as living plaintiff, against the hospital in California. Notably, in California, if a family is suing for wrongful death of a child, there is a $250,000 limit on pain and suffering of the family. However, if the child is alive and is therefore the plaintiff, that same limit does not apply.

The mother will have a far more valuable lawsuit if the daughter is not deceased. The hospital is arguing that the daughter is deceased and, as such, cannot sue. Rather, only the family can sue, and it must be subject to the cap.

Interestingly, if the hospital was negligent and caused the girl’s death, it may not have to pay as much in damages as it would if the child survived.

Daughter may be showing signs of brain life

In asserting that her daughter is not brain dead, the mother claims that the daughter is able to move her finger on her mother’s command. Additionally, signs of puberty also became evident, which would mean that the hypothalamus part of the brain is alive.

Factual question of brain death is for a jury to decide

The judge, on the issue of whether the child is alive, found that it was a question of fact for the jury, not a legal conclusion at this time. As such, the child’s lawsuit, as pursued by the mother, can go forward, and the jury will determine if the child is brain dead.

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