A federal judge on Friday rejected a lawsuit by a Vacaville couple to keep their brain-dead toddler on indefinite life support at Kaiser Permanente’s Roseville hospital while they seek a long-term care facility.
After two days of deliberation, U.S. District Judge Kimberly J. Mueller denied the family’s request for a preliminary injunction that would bar the hospital from removing a ventilator that is mechanically keeping 2-year-old Israel Stinson breathing. But, in a bid to give the family time to appeal, Mueller upheld a temporary restraining order that will keep the ventilator in place until May 20.
Reached by phone, Israel’s father, Nathaniel Stinson, 27, said he was “shocked” by the judge’s rejection of a preliminary injunction “but happy that she gave us a little bit of an extension” until Friday. “We’re hoping and praying that everything goes right. It gives us more time to find a place” for Israel’s long-term care.
Stinson, who was speaking from Israel’s bedside, said his son is “still moving, he’s still living.” Stinson and Israel’s mother, Jonee Fonseca, are engaged and also have a 1-year-old daughter.
The lawsuit was filed by Fonseca. She is being represented by attorneys from the Pacific Justice Institute and the Life Legal Defense Foundation, which support parental rights and religious freedoms. They argued for the injunction on numerous grounds, including constitutional rights to privacy, freedom of religion and due process for Fonseca as her son’s health care provider. The attorneys also questioned whether brain death is equivalent to the cessation of life.
In a 31-page ruling, Mueller said the legal claims did not meet the standards for a preliminary injunction as requested.
“While Ms. Fonseca’s maternal instincts and moral position are completely understandable,” Mueller wrote, “the concerns reviewed here suggest she is unlikely to obtain the relief she seeks, and weigh against a preliminary injunction based on the law this court is sworn to apply and uphold.”
Israel has been declared brain-dead by three physicians in recent weeks following a respiratory attack and cardiac arrest on April 1. He has been hooked to a ventilator in Kaiser’s pediatric intensive-care unit since April 14, while his parents and attorneys battled in court. He has been given electrolytes and other fluids to keep his organs functioning, but is not getting nutritional supplements.
In her lawsuit, Fonseca asks that feeding and breathing tubes be inserted so that Israel could be transferred to a long-term care facility willing to accept patients declared brain-dead. In a similar case in 2013, the parents of Jahi McMath, then 13 and declared brain-dead after surgery at UCSF Benioff Children’s Hospital in Oakland, successfully fought to have her transferred to New Jersey, where she has been kept on indefinite life support.
“While we are certainly disappointed in today’s ruling, we will be making the most out of the one week remaining on the restraining order that will keep the ventilator going during that time,” said Matthew McReynolds, one of three attorneys representing Israel’s mother.
McReynolds said they would appeal the decision to the 9th U.S. Circuit Court of Appeals and “will continue seeking a better placement for Israel where he can receive treatment and have a chance to improve.”
In an emailed statement, Dr. Chris Palkowski, chief of staff at Kaiser Roseville, said: “Our hearts go out to this family as they cope with the irreversible brain death of their son. We continue to offer our support and compassion to the family during this sad time. We will follow the court’s directions.”
According to court documents filed by Kaiser Permanente attorneys, Israel has been treated by three hospitals since April 1, when he was taken to a Mercy Hospital emergency room with asthma symptoms.
Given his severe condition, he was transferred to the University of California, Davis’ pediatric intensive care unit, where he suffered a respiratory attack that led to cardiac arrest. UC Davis physicians declared him brain-dead, but his parents chose to have him transferred to Kaiser Hospital in Roseville for a second opinion.
A California Superior Court ruling last month upheld Kaiser’s determination of brain death, saying it followed California’s Uniform Determination of Death Act, part of national standards that require separate examinations by two physicians, at least 12 hours apart in the case of children.
In court documents, Dr. Michael Myette, head of Kaiser Roseville’s pediatric ICU, said numerous tests show Israel has irreversible loss of brain function that renders him unable to breathe or maintain a heartbeat on his own. Inserting a feeding tube, Myette said, could result in infection and sepsis.
“I’m a parent and I can’t imagine how this family must feel,” said Dr. Wade Smith, director of neurologic intensive care at the University of California, San Francisco.
“But this is a situation in medicine where we have very clear absolutes. This child will never wake up. … It is really hard for a physician to bring the news to a parent that their child has died. But that’s the reality. I’m sad for the parents and sorry for the situation. But at some point, they have to accept it and move on.”