|Chris Dolan, McMath attorney in federal case|
This week, the Jahi McMath family filed a new brief in its federal lawsuit against the State of California. The purpose of this brief is to apprise the U.S. District Court of developments in the state medical malpractice lawsuit.
In a nutshell, the state courts have repeatedly ruled that the McMath family may present evidence that Jahi is now alive. They are not barred by 2013 court rulings that Jahi is dead. But despite winning at the trial and appellate levels in state court, in this week's federal brief, the family argues that "the issue of whether Jahi McMath is alive or not will not necessarily be resolved in the malpractice action."
This is true. After all, Jahi's life/death status is relevant only to the issue of money damages. And the issue of damages will be addressed only if the elements of duty, breach and causation are first proven. (On the other hand, the court has been asked to bifurcate the trial such that damages could be tried first.)
In short, the McMath family further argues that the federal lawsuit is still necessary, because the state lawsuit is unlikely to resolve the life/death issue. Why? Because plaintiffs lose most medical malpractice cases. And they take a very long time to litigate in any case (maybe 5 years).
"There is, at best, a possibility that Jahi’s status as live or dead will ever be decided in the state court action. Even if a jury or judge ever reach this issue, an appeal could drag on for years."
"Jahi and her mother should not have to pin their hopes of reunion with their family during Jahi’s lifetime on the statistically improbable likelihood that the state court malpractice action will resolve the issue of her life.