There were bittersweet tears in a Brampton courtroom on Friday as Judge Lucille Shaw read her decision: an adjournment until Nov. 6, which keeps 27-year-old Taquisha McKitty on life support for another few weeks. Her family says this keeps hope alive.
“That it gives us a little more time — I guess a little more hope — to continue fighting,” said McKitty’s father Stanley Stewart. “And hopefully we can get our doctors and assessments to come back to court and present our case a little better.”
Shaw granted the adjournment and, by extension, an injunction after ruling that a retired American doctor would not be allowed to serve as an expert witness in the case.
She told the court Dr. Paul Byrne “is more of an advocate than an expert” and “not an independent and impartial witness.”
The doctor repeatedly told the court he believed “brain death” was an invented concept used to facilitate organ donations and in his over 50 years of practice he had never declared anybody brain dead.
Hugh Scher, the lawyer for McKitty’s family, asked for a 30-day adjournment so that he could find another medical witness — something he says “won’t be quick or easy.”
Erica Baron — counsel for Dr. Omar Hayani the physician who signed McKItty’s death certificate — said granting an adjournment would “effectively be granting an injunction.”
Shaw acknowledged being faced with “extraordinary circumstances.”
Had she not granted the injunction, she would have allowed Brampton Civic Hospital to pull the plug on McKitty’s ventilator.
Pinta Maguire, a lawyer with Neinstein LLP who specializes in medical malpractice, said families and patients typically make those choices and hospitals only have the power to do so in specific circumstances.
“The power for the hospital is only given when the patient is declared brain dead,” she explained. “Once the patient has been determined to be legally dead, it has been determined that the life-sustaining measures are not providing benefit to that person and thus can be removed by the hospital.”
She added she couldn’t find a similar case in Canada.
McKitty’s case is exceptional in the medical community too. She continues to move her legs, toes, torso and head, weeks after most medical literature says she should’ve stopped.
Her family believes these are signs of consciousness; physicians from Brampton Civic Hospital and St. Michael’s Hospital say they are spinal cord reflexes.
Most medical literature suggests spinal cord reflexes should stop after 72 hours, but Dr. Andrew Baker, a neurologist with St. Mike’s argued there’s no research on patients at this stage.
Maguire said the case may not end when the family is back in court at the beginning of next month.
“These matters can go on for years because you can seek leave to appeal to various levels of court as you go higher and higher,” she said. “So you can go all the way to the Supreme Court of Canada if you so choose to, which can take a long time.”