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On bioethics: Ben Rich | Is brain death really death?

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Ben RichIn 1968, an ad hoc committee of the Harvard Medical School published a report in JAMA advocating recognition of "irreversible coma" as a basis for declaring a patient dead, and, when appropriate, recovering organs for transplantation. The report prompted a remarkably swift adoption of the "whole brain death" protocol (permanent cessation of all brain function, including the brain stem) throughout the United States. This new, alternative formulation to the longstanding cardiopulmonary criterion for determining death was affirmed by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981, and reaffirmed with a few conceptual reformulations with no critical clinical implications by the President’s Council on Bioethics in 2008. Despite this illusion of strong consensus, clinicians continue to encounter significant resistance from some families when told that their loved one is brain dead. This should not surprise us, since not only do such patients look to the non-clinician the same as they did before physicians pronounced them dead, but one study found that in those rare instances in which supportive measures have been continued, vital signs could be maintained anywhere from several months in adults to years in the case of a few young children. From a philosophical perspective the critical question remains: what is the ontological status of the irreversibly comatose patient whose vital signs are artificially maintained?

Brain scanTo further perpetuate the confusion, The New York Times and other respected publications have reported on cases in terms such as: [the patient] "was declared brain dead, the family had the respirator disconnected … and she died almost immediately," thereby suggesting that brain death is not really death. Even physicians as accomplished as neurosurgeon and CNN chief medical correspondent Sanja Gupta, accustomed to explaining complex medical issues to laypersons, fail to demystify brain death. A case that recently unfolded in Canada, in which a brain-dead pregnant woman at the family’s request continued to be sustained until she gave birth, was remarkably similar to one that Gupta discussed in 2005 during an appearance on Larry King Live. When King asked "Is a brain-dead person really dead?" on the program, Gupta responded: "[saying a person is dead] really means the heart is no longer beating ... so a brain-dead person is someone who has no chance of recovery ... but people do draw a distinction between ‘brain dead’ and ‘dead.’"

Jahi McMath, a 13-year-old female patient who underwent a tonsillectomy at Oakland Children’s Hospital on December 9, 2013, experienced significant post-procedure complications, and on December 11 was pronounced brain dead. Her family insisted on continuation of all supportive measures as they sought legal representation and secured a court order requiring the hospital to continue "life support" pending further proceedings.

Two questionsTwo questions warrant further reflection. First, do we discover as a matter of objective scientific fact when a human being has died, or do we decide this based on societal consensus informed by scientific knowledge? Second, when a patient meets the neurological criteria for death, does that create an obligation or merely an opportunity on the part of a physician to pronounce death?

A 2009 amendment to the California Health and Safety Code requires all general acute-care hospitals to adopt a policy providing the family or next of kin of a patient who has been declared brain dead with a "reasonably brief period of accommodation" before discontinuation of cardiopulmonary support. The hospital must also reasonably accommodate any special religious or cultural practices and concerns of the family relating to brain death. This provision was not intended to create a family veto to a declaration of brain death. Rather, the clear legislative intent was to allow grieving families a brief period in which they can gather around the now-deceased patient and begin the bereavement process.

Ultimately, the court orchestrated an agreement between the parties for the hospital to release the body of Jahi McMath to the coroner, who in turn allowed the family to transport the body to New Beginnings Community Center for Brain Injury Rehabilitation in Medford, N.Y. The website for this facility posts a statement concerning Jahi that includes the following: "This child has been defined as a deceased person, yet she has all of the functional attributes of a living person despite her brain injury."

As this case was unfolding, the family of 33-year-old Marlise Muñoz, neurologically devastated after being felled by a pulmonary embolism in her 14th week of pregnancy, filed suit seeking a court order requiring John Peter Smith Hospital in Fort Worth, Texas to discontinue life support. The hospital’s administrators insisted that the supportive measures were required by a Texas statute that prohibited withholding or withdrawing "life-sustaining treatment … from a pregnant patient." Although physicians told the family Marlise Muñoz was brain dead, it was unclear whether that pronouncement had been formalized. The judge concluded the statute was inapplicable to this situation and supportive measures should be discontinued.

Two questions warrant further reflection. First, do we discover as a matter of objective scientific fact when a human being has died, or do we decide this based on societal consensus informed by scientific knowledge? Second, when a patient meets the neurological criteria for death, does that create an obligation or merely an opportunity on the part of a physician to pronounce death?

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UC Davis Medicine

Spring 2014

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Spring 2014 Issue

New leadership, new opportunities, new perspectives

On bioethics: Ben Rich

Is brain death really death?

Bioethics expert Ben Rich, J.D., Ph.D., UC Davis School of Medicine Alumni Association Endowed Chair of Bioethics