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Judge denies request to extend order to keep 9-year-old girl on life support

Updated 5:29 PM ET, Sat October 20, 2018

(CNN) - The parents of a 9-year-old girl who was declared brain dead by a Fort Worth, TX, hospital, have been denied a temporary restraining order extension that would keep their daughter on life support, a judge ruled Wednesday.

Judge Melody Wilkinson of the 17th District Court of Texas said the parents of Payton Summons did not meet the burden of proof for injunctive relief, according to Justin Moore, a lawyer for Payton's family.

The family's current restraining order against Cook Children's Medical Center, which has kept Payton on life support since late September, is set to expire on Monday unless a new order is filed, Moore told CNN on Wednesday.

The family is going to process Wednesday's ruling before deciding whether to apply for a new restraining order or not, he said.

Cameras were not allowed inside the court room during the hearing, but Moore spoke to reporters after the judge made her decision.

"There are no winners today obviously," Moore said following the ruling.

"This presents a great issue for parents in the state of Texas. They don't know how to proceed when they have a child put in this condition as Payton Summons has been put in. So I believe our fight is going to continue on in order to carve out some real narrow language in the law to provide courts, lawyers and parents guidance because that's what they need in times like this," he said.

"This is probably one of the most trying days in my career as a young lawyer," he added.

Payton has been on life support at Cook Children's Medical Center since late September, after she went into cardiac arrest.

Last month, she was staying overnight with her grandmother when she suddenly woke up, "screamed for her grandmother to help her and said that she couldn't breathe ... then she collapsed," Payton's mother, Tiffany Hofstetter, told CNN affiliate KTVT in September.

Payton was transported to the hospital, and doctors established a heartbeat but put her on a ventilator because she was no longer breathing. She was confirmed brain dead after a test determined that she did not have brain activity.

"Brain death, by definition, is irreversible," CNN Chief Medical Correspondent Dr. Sanjay Gupta said in 2014.

"In the United States and most places, it is legally synonymous with death -- the same as if your heart stops," he said. "But brain death means a total loss of brain activity."

Under Texas law, a person is considered dead when they have suffered an irreversible loss of all brain function, the hospital said in a statement in September, according to KTVT.

"Per our protocol and national pediatric medical standards, a second brain death exam was scheduled to take place by a different physician within 12 hours of the first to complete the legal process of declaring Payton deceased," the hospital said in a statement.

"In addition to dealing with the sudden blow of her cardiac arrest and devastating brain injury, Payton's family is also coping with the news that the arrest was caused by the growth of a very large tumor in her chest that is shutting off her circulatory system."

In the days following, the hospital held off on performing the second brain death examination, as Payton's family filed a temporary restraining order against the hospital in order to keep her on life support there until they found another medical facility that could take their daughter. The family contacted 25 of them but there were no takers, according to co-counsel Paul Stafford who argued the case in court Wednesday for Payton's family.

"Unfortunately after 25 out of 28 facilities that were contacted, we had no takers, we have two maybes and those were preconditioned on certain things which may be life threatening to Payton if performed," he said.

Kim Brown, a spokeswoman for the hospital, said in a statement last week, "Cook Children's has been informed that we no longer have the ability to speak to media about Payton Summons. Although the family previously signed a consent form authorizing the release of information protected by the Health Insurance Portability and Accountability Act (HIPAA), we have been notified by the family's lawyer that the family has revoked their consent for us to speak about Payton's condition.

"Unfortunately, this means that we are no longer able to provide detailed, factual information regarding this case. We're disappointed that the family has revoked their authorization because we believe that accurate information facilitates fair, balanced and informed reporting."


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