Jahi McMath was only seeking help for her sleep apnea in 2013, but complications in her surgery has left her brain-dead since. McMath’s family is now suing the hospital where she went into cardiac arrest for negligence and wrongful death — if “it is determined” that the girl indeed succumbed to her injuries.

During a lengthy legal battle, McMath’s family was granted the right to remove her from the California hospital to a long-term care facility in New Jersey. According to her mother, she can now respond to basic commands and is able to move her hands and feet.

From ABC News:

With a day to go before the statute of limitations runs out, the family is now suing Benioff Children’s Hospital for malpractice and asking for unspecified damages, according to California malpractice attorney Bruce Brusavich. He told ABC News he plans to file the suit today, and that the family has “mixed emotions” about it.

“The mother never had any explanation as to how this happened,” Brusavich said. “But it doesn’t really change anything in terms of the profound brain damage to the child.”

The suit, an advance copy that Brusavich gave to ABC News, alleges that the doctor was negligent because he did not follow the standard of care for treating Jahi’s sleep apnea and instead opted for invasive surgery on Dec. 9, 2013, removing her tonsils, adenoids, soft pallet and uvula as well as doing work on the inside of her nose. The doctor allegedly noted that Jahi might have a malformed carotid artery at the surgical site, which would have put her at risk for life-threatening bleeding, but he didn’t inform the medical staff after he noticed it during surgery , according to the suit.

The family will seek damages, but a dollar figure was not listed on the suit. Brusavich told ABC News that non-economic damages in California cannot exceed $250,000.

The hospital released the following statement to ABC News: “Our hearts go out to the McMath family. It is our policy not to comment on pending litigation.”

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