Jahi's mother Nailah Winkfield is suing the state of California for pushing a death certificate on a breathing human being.
Nailah filed a malpractice lawsuit against Children's Hospital Oakland and against the surgeon who performed Jahi's surgery indicating they were prepared to argue as part of the lawsuit that the young girl is not dead.
Jahi was full of life. She had a raspy throat and her family believed that a tonsil pull would be simple surgery. It turns out that the surgery went wrong. She was bleeding from the mouth which lead to a blood clot, in turn gave her a heart attack and a stroke.
The internal injuries left her paralyzed and brain dead.
Naliah doesn't give up on her daughter. She says as long as she's breathing, she's alive and no piece of paper determines her daughter's life.
"I want her to have the same rights as any other disabled kid," Naliah said.
Jahi's mother says her daughter show some signs of life, including the twitching of fingers and toes.
Medical experts said those movements could be spasms and reflexes commonly seen in corpses. They say Jahi McMath shows hardly any brain activity and is clinically dead.
But her mother isn't ready to give up. Winfield said she recently sold her Oakland home and is living off those rapidly dwindling proceeds.
"I won't give up on Jahi, because I'm her mother," Winkfield said.
Medical malpractice is a legal offense that occurs when a medical professional fails to perform his or her medical duties due to negligence, thereby causing injury to a patient.
Republican candidate Dr. Ben Carson had some medical malpractice as a pediatric neurosurgeon.