Lewis A, Pope TM. Physician Power to Declare Death by Neurologic Criteria Threatened. Neurocrit Care. 2017 Jan 11. doi: 10.1007/s12028-017-0375-x. [Epub ahead of print]
Three recent lawsuits that address declaration of brain death (BD) garnered significant media attention and threaten to limit physician power to declare BD.
We discuss these cases and their consequences including: the right to refuse an apnea test, accepted medical standards for declaration of BD, and the irreversibility of BD.
These cases warrant discussion because they threaten to: limit physicians' power to determine death; incite families to seek injunctions to continue organ support after BD; and force hospitals to dispense valuable resources to dead patients in lieu of patients with reparable illnesses or injuries.
Physicians, philosophers, religious officials, ethicists, and lawyers must work together to address these issues and educate both the public and medical community about BD.
From the article:
Nonetheless, there are still people, including physicians, who conceptually, religiously, or morally perceive that death can only be declared when the heart stops beating. BD is defined as loss of function of the brain, but declaring BD does not require death of every neuron. As a result, some people conceptually view BD as a legal fiction. Although major Catholic, Jewish, and Muslim societies support the concept of BD, some devout communities continue to believe that these religions only endorse cessation of respiration, heartbeat, and circulation as true death. Orthodox Jewish, Japanese Shinto, Buddhist, Muslim, and Native American populations are commonly cited as groups that have religious objections to BD.
According to the AAN guidelines, organ support should be discontinued after declaration of BD unless organ donation is planned, but four states offer accommodation exceptions and allow organ support to be continued after BD. California, Illinois, and New York offer brief accommodation to families who object to BD. In New Jersey, if a patient has moral or religious objections to BD, they are considered alive until cardiopulmonary arrest. But in other states, there are no guidelines about how to manage situations in which families object to BD on religious or other grounds…
Mirranda Grace Lawson, a two-year-old, was brought to the Virginia Commonwealth Health System (VCUHS) in May 2016 after choking led to cardiopulmonary arrest. Because she was unresponsive and had no brainstem reflexes, physicians planned to perform an apnea test to determine whether she was BD. Her parents objected, citing that: (1) according to their Christian beliefs, Mirranda Grace was still alive because her heart was beating; (2) as her parents, only they could make healthcare decisions on her behalf; and (3) the apnea test could be harmful and was therefore not in her best interests. Although the Circuit Court ruled that VCUHS could perform the test, the Lawsons filed an appeal, but this was withdrawn in December 2016 after Mirranda’s cardiopulmonary arrest. However, in a similar case in Montana in September 2016, the court prohibited clinicians from performing an apnea test, stating that parents of sound mind have the right to choose or refuse medical treatment for their children based upon their rights to autonomy and privacy...
Aden Hailu, a 20-year-old, suffered an anoxic event during an appendectomy in April 2015 at St. Mary’s Regional Medical Center in Nevada. She was unresponsive with no brainstem reflexes and no evidence of spontaneous respirations, so BD was declared. Her father objected and sought a court injunction mandating continued organ support. It is unclear what motivated him to desire provision of ventilator support, nutrition, medications, and interventions in the setting of BD. Family members sometimes insist on treatment in the setting of futility due to religious or cultural beliefs, guilt, grief, faith in future medical advances to change prognosis, or concern that a physician’s prognosis is jaded by patient race or socioeconomic status . Although a district court ruled that Hailu met the AAN criteria for BD and that organ support should be discontinued, Hailu’s father appealed.
In November 2015, the Supreme Court of Nevada reversed, reversed the ruling, questioning whether the AAN criteria represented “accepted medical standards,” and “established irreversible cessation of all functions of the entire brain, including the brainstem,” as required for BD under the UDDA. The Court specifically cited that an electroencephalogram was not performed to evaluate for electrocerebral silence. The Supreme Court directed the district court to answer these questions, but the case ended in January 2016 after Hailu’s cardiopulmonary arrest…
Jahi McMath, a 13-year-old, had a cardiopulmonary arrest at Children’s Hospital Oakland in December 2013 after she developed hemoptysis following a tonsillectomy, and BD was declared. McMath’s mother objected to discontinuation of organ support and brought several lawsuits, citing that from her Christian faith perspective, death does not occur until the heart stops beating. She was ultimately given permission to relocate Jahi to New Jersey, where religious exemption to declaration of BD is offered, despite the fact that a California death certificate had already been issued and signed. McMath has remained on organ support in New Jersey, and her mother is currently suing Alameda County and the State of California in an effort to have her death certificate revoked.
A key tenet of BD is that although technology may allow an individual’s heart and lungs to function, there can be no possibility of restoration of brain function either spontaneously or through intervention. Were McMath’s family to be successful at having her declared alive again, this would be a profound development. No evidence proving Jahi is alive has been formally presented thus far, but the mere suggestion that she could be alive (again) reinforces skepticism about the concept of BD among families who wish to continue organ support despite declaration of BD…
Declaration of BD can often be complicated due to the emotionally charged nature of situations involving life and death. This is already exacerbated by poor understanding of BD, but the significant publicity about the Lawson, Hailu, and McMath cases (and many similar others) threatens to further escalate the complexities by: (1) limiting physicians’ power to determine death; (2) inciting families to seek injunctions to continue organ support after BD and request second opinions by physicians who are well-known opponents of BD; and (3) forcing hospitals to dispense valuable resources such as ventilators, beds, medications, and clinician time, to dead patients in lieu of patients with reparable illnesses or injuries.
A survey of neurologists who were asked to continue organ support after BD found that the most common reasons to continue treatment were the desire to avoid litigation, media coverage, and upsetting the family. As a result, support was continued until the time of cardiopulmonary arrest a third of the time