Are there different levels of death? Are you alive if you’re brain dead but on life support?
Many journalists and members of the public are unclear about the nuances of brain death. According to this new tip sheet from author and researcher Alan Cassels, this confusion directly affects issues such as organ donation rates.
Cassels notes that while a patient’s organs can be “kept alive” while awaiting transplantation, brain death is legally the same as cardiopulmonary death – death is death. It matters because the organ donor transplant list keeps growing.
Only three of every 1,000 people die in a way that allows for organ donation, according to the Health Resources and Services Administration, the government agency that tracks transplant statistics. Meanwhile, nearly two-thirds (65.3 percent) of those waiting for organs are age 50 or older. The problem, Cassels writes, is that not clearly understanding and reporting brain death can have a “profound effect on the willingness of relatives to consider organ donations from their just-deceased loved ones.”
Cassels’ tip sheet highlights two high-profile cases in which journalists misinterpreted brain death and ended up reporting erroneous information. That muddies the issue for the public. The tip sheet includes some easy-to-understand definitions of brain death, life support, persistent vegetative state and coma — all different medical states. It also provides some excellent resources for journalists who may find themselves immersed stories, such as this one, about the particulars of someone who is declared brain dead but described as on life support.
This tip sheet misstates the law and ignores religious beliefs
I disagree. After the McMath panel at the Denver meeting, I did some research and posted my results to the list. http://healthjournalism.org/list/html/ahcj-l/2016-08/msg00104.html
The panel, who left without answering my questions, misstated the Uniform Determination of Death Act. But more important, they framed the question as one of the legal definition of death and the neurological predictions of recovery. They ignored or rejected the religious definition of death.
If you go to the same Findlaw page that Cassels cites, you will find http://healthcare.findlaw.com/patient-rights/what-is-the-uniform-declaration-of-death-act-or-udda.html :
The UDDA offers two definitions for when an individual may legally be declared dead:
1. Irreversible cessation of circulatory and respiratory functions; *or*
2. Irreversible cessation of all functions of the entire brain, including the brain stem.
That’s *”or”*. The UDDA offers both definitions. So why were they choosing one and not the other?
Under New Jersey law, for example, if brain death would violate the individual’s “personal religious beliefs,” then “death shall be declared solely upon the basis of cardio-respiratory criteria.”
New York has a similar law.
So in New Jersey, the hospital would have had to follow the McMath family’s religious beliefs in the cardiorespiratory criteria. In fact, McMath is now in New Jersey.
Lawyers know that damages are much less if you kill somebody than if they survive. If Children’s Hospital Oakland could get a final legal ruling that McMath was dead, they would have saved a lot of money. California has a $250,000 cap on damages when a patient dies from surgery. But if she is defined as alive, the hospital has to pay for her continued care.
Children’s Hospital has the right to decide that McMath’s case was futile, and tell the family to pull the plug or move her to another facility. But why would Children’s Hospital insist that they pull the plug, and stop her heart from beating, before they let the family move her?
I’m an atheist but I respect the rights of religious people under the First Amendment, and under medical ethics (and just because I often like religious people). People with sincere religious beliefs have certain rights under our law (for example conscientious objectors). There are balancing tests, but Cassels has defined “death” in a way that rejects any balancing test, and dismisses without discussion any respect or concern for the honest (and maybe stupid) beliefs of religious people, like Rabbi Bleich https://www.health.ny.gov/regulations/task_force/reports_publications/docs/determination_of_death.pdf
And finally, defining terms to favor your position is an old debater’s trick — like the anti-abortionists who tried to define a fetus as a “person” in Roe v. Wade.
Thanks for your comment. As you probably know, these tip sheets are crafted to provide a broad overview so reporters have a starting point about a topic or issue. This one only concentrated on medical definitions. If religious exceptions exist then clearly physicians and hospitals should take them into account. Much of what you describe goes beyond medicine and into the realm of ethicists, lawyers and clergy. And a reminder too that states have different laws, so what applies in New York or New Jersey may not apply elsewhere.
Do doctors always take 6 hours and 36 steps to certify brain death?
Cassels’ tip sheet raises more questions about brain death than it answers. He sends readers to a 2009 article from India, “For a full explanation of brain death, this resource lays out the criteria in simple point form.” I really appreciate seeing those detailed criteria. The article lists 29 technical tests, all of which apparently have to be failed to declare brain death. Seven of the tests must be repeated after 6 hours. Only then can brain death be pronounced.
Do US (or Indian) doctors actually use all these tests and time? If so, the public needs to be aware that declaration of brain death is a slow process. If not, we need an addendum on what is expected here.
If any test isn’t failed does that mean the person is in a coma? Neither the tip sheet nor the article draws a clear line between coma and death, though they recognize its importance. There’s a lot of ambiguity even if doctors try to do all these tests, since the two anesthesiologist authors mention many conditions which alter responses to the tests, and don’t say what alterations are still consistent with death. Furthermore they say, “When clinical circumstances prohibit completion of any steps in the clinical examination, these should be documented,” but they don’t say whether death can be declared after this incomplete examination. Doctors certifying death “should observe the patient, review the medical record, and note whether any additional information is required to make a definitive determination” but not necessarily do the tests themselves.
The article mentions NY and Florida law, but no court cases. There is no evidence the article represents standard US medical practice (or Canadian, where Cassells blogs). The article is cited by only 5 articles in PubMed Central.
Because of its medical terminology and ambiguity, the Indian article is of little help for reporters in explaining brain death. However it may provide a checklist when reporters interview a doctor certifying death, to see if, when and how each step was done.