(CBS SF) — The attorney for an Oakland teenager who was declared brain-dead after suffering complications during tonsil surgery said he may go back to court to compel the state of California to rescind her death certificate.

Then 13-year-old Jahi McMath went into cardiac arrest during the minor surgery at UCSF Benioff Children’s Hospital Oakland in December 2013.

Her mother Nailah Winkfield has filed a wrongful death and malpractice suit against Children’s Hospital. This week, an Alameda County Superior Court judge said he was inclined to dismiss part of the lawsuit and uphold previous determinations that McMath is dead.

The decision is significant because if McMath is ruled to be still alive, her family can sue for millions. If the death declaration is upheld, the damages in a malpractice case would cap at $250,000.

Doctors ruled her dead just before Christmas in 2013, but her family does not agree, saying there is evidence of brain activity.

“You couldn’t tell if there was anything there because of how much swelling there was,” said uncle Omari Sealy. “Since then the swelling has gone down tremendously and we’ve had other physicians come in – privately, multiple physicians – and they’ve all declared that she’s not brain dead.”

Attorney Christopher Dolan has requested the state and the coroner vacate the death certificate.

“If they reject that request, then I’ll be returning to the courts, maybe the federal court, based upon what we call the deprivation of one’s rights without due process,” said Dolan. “Because, in essence, under the color of law they are continuing to declare Jahi dead in face of the evidence to the contrary.”

McMath is currently hooked up to life-support machines in New Jersey, a state which allows families to reject brain-dead diagnoses on religious grounds. Her family claims she occasionally responds to verbal commands, although doctors have called such movements spontaneous.

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