Attorneys for Israel Stinson, the brain-dead toddler on life support at Kaiser Roseville hospital, got a weekend reprieve in their legal fight now before the 9th U.S. Circuit Court of Appeals.
Facing a federal court order that would have allowed Kaiser Permanente to take 2-year-old Israel off a ventilator Friday, the appeals court granted an extension until Monday. The court said it wanted to allow Israel’s mother, Jonee Fonseca, more time in her effort to substantiate her claim that Kaiser’s declaration of brain death is invalid on constitutional grounds.
Fonseca and her attorneys want Israel to remain on a ventilator until the family can find another facility to take him.
“We continue to appreciate the seriousness with which the courts are approaching these life-and-death decisions, and we will be working through the weekend to address the latest questions posed by the 9th Circuit,” said Matthew McReynolds, senior staff attorney with Pacific Justice Institute, in an email.
“Every day is a gift, and both we and Israel’s family are going to make the most of it by presenting the strongest possible legal arguments and at the same time seeking a better placement where he can have the opportunity to improve and thrive. As long as Israel continues to fight for life, we will be fighting for him.”
The institute is one of two nonprofit legal teams representing Fonseca on a pro bono basis. Their lawsuit contends that California’s brain death standards violate Fonseca’s due process rights to determine her son’s health care. The state standards, based on a national model in common use across the country, require a series of specific tests in order to determine brain death.
The legal team’s efforts to get a permanent injunction against Kaiser were denied last week by U.S. District Judge Kimberly J. Mueller, who, while sympathizing with Fonseca’s “maternal instincts,” said the lawsuit didn’t meet legal standards for an injunction. Mueller had given the family until Friday to file an appeal. The federal appeals court ruling grants the family additional time to bolster its case.
“I’m so grateful and so thankful that the court has given us more time,” said Fonseca, 23. “I won’t feel complete until we can get him to another hospital willing to give him the procedures (feeding and breathing tubes) and nutrition he needs.”
Asked about Israel’s condition, she said, “As a mother, I can see he is not holding up as well as he was. He’s still responding (to her touch and voice), but it’s taking more out of him.”
She said the family is in discussion with an East Coast hospital about accepting Israel as a patient, but declined to specify where. Previously, the family has contacted facilities in New Jersey, the only state that allows a religious exemption in cases of brain death.
Earlier in the day, Israel’s father, Nate Stinson, said the family would be willing to locate out of the country, if necessary. The Vacaville couple, who also have a 1-year-old daughter, are getting their passports ready just in case, he said. “I’d go to the end of the world for my son. Who wouldn’t?”
Kaiser officials, who continue monitoring Israel’s condition, have expressed sympathy for the family while holding firm on the diagnosis of brain death.
“Our primary goal is to continue to support the family as they try to cope with this situation,” Dr. Chris Palkowski, chief of staff for Kaiser Permanente Roseville Medical Center, said in an emailed statement. “We will follow the direction of the court, as we have been, while our physicians and care teams continue to demonstrate extraordinary skill and professionalism during this sad time.”
And, he added: “We continue to be ready to work to facilitate the family’s request to transfer Israel to another facility, if another placement is identified.”
The toddler’s medical and legal trials started April 1 when he was taken to a Mercy Hospital emergency room with an apparent asthma attack. 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. After efforts at cardiopulmonary resuscitation failed, UC Davis doctors declared that Israel was brain-dead.
His parents had him transferred to Kaiser Permanente Roseville Medical Center for a second opinion. There, two more physicians determined the toddler had suffered irreversible brain death.
Israel has remained on a ventilator since arriving at Kaiser and is being given intravenous medications, glucose, hormones, water and electrolytes to keep his heart, lungs and other systems functioning mechanically. Because his brain is not capable of sending signals, his condition requires “moment-to-moment and hour-to-hour” monitoring to maintain critical levels, according to a court declaration by Dr. Michael Myette, medical director of Kaiser Roseville’s pediatric intensive care unit.
“Without these drugs and a ventilator, his heart would cease to function within minutes,” the declaration states.
Given the toddler’s condition, Myette said it would be “very risky” to put in a feeding or breathing tube, as the parents have requested. In his court declaration, Dr. Myette said Israel “continues to slowly deteriorate from a cardiovascular standpoint and we are reaching the effective limits on medications used to keep his heart beating.”
Israel’s parents have stated that he responds to his mother’s voice and touch, and that he has taken a breath off the ventilator. As long as his heart keeps beating, they said, they believe he is alive and hold out hope of recovery.
An out-of-state pediatrician, Dr. Paul Byrne, testifying for the family, said he has visited Israel at Kaiser several times and believes there remains a chance at recovery. Byrne represents the Life Guardian Foundation, a religious-based organization that believes life does not end until a person stops breathing.
“He’s a beautiful little boy. He has movements, not reflexive movements, but what I would call purposeful movements,” Byrne said. “There’s a good chance he can get some recovery, but you can’t tell how much.”
But Kaiser physicians and others say that’s highly unlikely. “The argument (that) Israel, with proper medical treatment, is likely to continue to live, and may find limited to full recovery of brain function … is medically unsound,” Myette said in a court filing. He attributes Israel’s movements to involuntary spinal reflex.
Dr. Wade Smith, director of the UCSF Neurological Intensive Care Unit, concurred. Smith said it’s understandably difficult for doctors “to convey a diagnosis of brain death because the body is still warm, the heart’s still beating and it’s hard to understand that the child or adult has died.”
But, he said, brain death is different than someone in a coma who might reawaken or someone in a vegetative state. “No person who has achieved a state of brain death has ever gone on to later open their eyes,” he said. “Brain death is a total loss of brain function.”