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Teen's 'deceased' status complicates personal injury claim

When, exactly, does death occur?

That's the most important question in a lawsuit that involves a young California teenager whose routine surgery turned tragic. Oxygen deprivation caused tremendous brain damage -- so much so that the coroner said she had "brain death" and issued a certificate of death.

Her body, however, keeps breathing with the help of life-sustaining medical equipment. The girl's parents fought a hard legal battle just to move her to New Jersey, where the laws are more supportive of their faith. If she had stayed in California, the teen would likely have faced forcible removal from life support.

Now, her parents are seeking a medical malpractice settlement against the California hospital where the girl had her surgery.

This has renewed the debate over whether or not the teen is actually dead or alive all over again.

On one side, the hospital, a coroner and the state of California say that the teen is deceased.

If true, the girl's parent should have filed a wrongful death suit and are now barred by the state's statute of limitations from doing so. In California, a personal injury suit due to medical malpractice can be worth far more than a wrongful death claim for the same reason, making the personal injury suit more valuable. A personal injury claim can go much higher than the $250,000 allowed in a medically-related wrongful death case. Given the lifetime of medical care the teen will likely need, it's easy to understand why the parents hope for a larger settlement.

On the other side, the family insists that their daughter is not deceased. They say she is going through puberty, which is controlled by the brain's hypothalamus. They also claim she can respond to her mother's voice, moving a finger when asked. Five different medical professionals have signed statements saying that the teen is not brain dead.

The judge in the case made perhaps the best call possible -- he's allowing the personal injury suit to go forward and the jury will have decide if the teen is living or dead.

Cases like this illustrate how complex some personal injury claims based on medical malpractice can become and why it is so important to keep track of the statute of limitations. If you or a loved one has suffered from medical negligence, please consult an attorney right away in order to preserve your rights.

Source: nj.com, "Girl thought to be brain dead may still be alive, judge says," Craig Turpin, Sep. 07, 2017

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