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Wrongful death or wrongful injury? It could make a big difference

A tragic case is gaining attention in California. A young girl hangs in the void between being alive and dead. If she is dead, her family will pursue a wrongful death claim against the hospital that they claim caused her injury. However, if she is alive, the claim would change to a wrongful injury. Now, a court must decide.

According to a report, the girl suffered injury during a throat surgery procedure in a California hospital. The surgery went awry and the child suffered severe brain injury. This resulted in her being declared dead in Dec. 2013. However, her family did not accept that declaration and have been fighting to change it in the years since.

The girl is now in another state receiving care. The California hospital where she was a patient previously maintains that she is, in fact, deceased under the guidelines for brain death. It is also to be noted that there has never been a case of a person being declared deceased as a result of brain death who then recovers brain function. 

Regardless of the eventual declaration of death, it is still claimed that the California hospital was responsible for the current state of the child. If she is deceased, the hospital will face a wrongful death claim that could result in an award to the surviving family for as much as $250,000. If she is alive, the damages recoverable in a wrongful injury claim are not capped, meaning that a much larger award could be made after a successfully presented claim. While the underlying tragedy remains, the ongoing legal skirmish could have substantial consequences.

Source: San Francisco Chronicle, "Jahi McMath's family wins backing for argument that she's alive", Lizzie Johnson, July 24, 2017

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