ORIGIN OF THE “BRAIN DEATH” PHENOMENON: DEFINING DEATH IN THE ERA OF SCHIAVO AND McMATH


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ADEYEMI OSHUNRINADE

January 13, 2014

With the recent case of Jahi McMath a 13-year-old, declared brain-dead by the Children Hospital & Research Center Oakland, defining death has become a more difficult phenomenon. The battle on whether life support be removed, is reminiscent of Terri Schiavo’ case, a brain-damaged woman who died in 2005 after living in a persistent vegetative state for more than a decade. Both cases are representative of a deep problem within the U.S. healthcare system especially, on determining when a person can be declared dead.

Until the last few decades, determining when a person died was not a difficult issue. Death occurred when certain physical changes transpired. The cessation of all cardiopulmonary function, cessation of all cognitive activity, the end of all responsive activity and the onset of rigor-mortis, livor-mortis, and lastly putrefaction, are all attributes of death.

Since the cessation of cardiopulmonary functions was easier to see than the end of other attributes of death such as cognitive ability and responsive activity, the end of cardiopulmonary functions became, informally and practically recognized as  death. The advancement in Medicine and development of artificial hearts and lungs changed the definition of death. Recent technology has made it possible for one to be without brain function and yet, maintain cardiopulmonary functions with the help of artificial devices.

The main issue now is how to define death. If asked, there are those who want death  defined as the cessation of all cardiopulmonary functions, while some define it as the end of all brain functions. The disagreement between both beliefs, forms the basis for why it is difficult to reach a compromise on whether one who is brain-dead be declared legally dead. Many in the medical profession, see the loss of all brain activities as the end of life. Physicians view the end of life as a time when their obligation to act in the interest of the patient ceases.

Development of the “Brain Death” phenomenon leading to the first well-accepted definition of death as “brain death,” was published by Harvard Medical School, in the Journal of the American Medical Association. The Ad Hoc Committee of Harvard Medical School, used the term “irreversible coma” to define what is now called brain death and said that “no statutory change in the law is necessary since the law treats this question essentially as one of fact to be determined by physician.” (Report of the Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death, 205 J.A.M.A. 85 (Aug. 1968).

In defining irreversible coma as the new criterion for death, the Committee gave two reasons: (1) improvements in resuscitative and supportive measures have led to increased efforts to save those who are desperately injured. Sometimes these efforts have only partial success so that the result is an individual whose heart continues to beat but whose brain is irreversibly damaged. The burden is great on patients who suffer permanent loss of intellect, on their families, on the hospitals, and on those in need of hospital beds already occupied by those comatose patients. (2) Obsolete criteria for the definition of death can lead to controversy in obtaining organs for transplantation. (Report of the Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death, 205 J.A.M.A. 85 (Aug. 1968)

The Committee listed as characteristics of irreversible coma-unreceptivity, unresponsivity, lack of movement or breathing, no reflexes and flat electro-encephalogram. It recommended that death be declared before the respirator is turned off, (“in our judgment it will provide a greater degree of protection to those involved”), that the physician in charge consult with others before  declaration of death is made, that the physician (and not the family) make the decision and that the decision to declare death be made by physicians not involved in later efforts to transplant organs or tissues from the deceased.

The Committee’ determination that brain death ought to constitute death, has met little opposition from medical professionals. However, there is a controversy over the exact nature of the characteristics of “irreversible coma,” that can lead to brain death. Another discussion is whether the issue be left to physicians or subject to public debate and then, converted into a formal legal standard. So far, the idea that physicians, can agree among themselves to change the rules by which life is determined, is harshly criticized by those who think the measure is an attempt by the medical community to salvage the maximum number of transplantable organs available.

Kansas was the first state to promulgate a statute adopting brain death. The 1970 statute, provided alternatively for brain death and traditional cardiopulmonary death by stating thus: {1} A person will be considered medically and legally dead if, in the opinion of a physician, based on ordinary standard of medical practice, there is the absence of spontaneous respiratory and cardiac function and, because of the disease or condition which caused directly or indirectly these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation are considered hopeless; and in this event, death will have occurred at the time these functions ceased; or

{2} A person will be considered medically and legally dead if, in the opinion of a physician, based on ordinary standards of medical practice there is the absence of spontaneous brain function; and if based on ordinary standards of medical practice, during reasonable attempts to either maintain or restore spontaneous circulatory or respiratory function in the absence of aforesaid brain function, it appears that further attempts at resuscitation or supportive maintenance will not succeed, death will have occurred at the time when these conditions first coincide. Death is to be pronounced before artificial means of supporting respiratory and circulatory function are terminated and before any vital organ is removed for purposes of transplantation. (See A. Capron and L. Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U.Pa.L.Rev. 87, 91-92 (1972); Also, Kan.Stat.Ann. § 77-202)

The Uniform Determination of Death Act promulgated in 1980, treated death as a phenomenon that could be tested by two alternative criteria though, it did not conclude that there were two alternative definition of death. Under the Act, An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. (Uniform Determination of Death Act § 1 (1980))

Despite later efforts to change its language, The Uniform Determination of Death Act has now been adopted as proposed by the commission. In 1982, three Dartmouth Medical School Professors found the UDDA undesirable and ambiguous, for elevating the cessation of cardiopulmonary function to the level of a standard for determining death. They argued that cessation of cardiopulmonary function, only works as a test for death in the absence of artificial cardiopulmonary support.

A satisfactory statute would be one that include only irreversible cessation of whole brain functioning and allow physicians to select validated and agreed-upon tests (prolonged absence of spontaneous cardiopulmonary function would be one) to measure irreversible cessation of whole brain function. They proposed an alternative statute as follows: “An individual who has sustained irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” (J. Bernat, C. Culver and B. Gert, Defining Death in Theory and Practice, 12 Hasting Center Report 5 (Feb, 1982))

Though the three Dartmouth Professors could not have their modifications incorporated into UDDA, there is agreement among philosophers and those in the medical profession that, the irreversible cessation of all brain function is death. That those who meet the whole brain-dead definition be allowed to die or be candidates for euthanasia. (James Humber, Statutory Criteria for Determining Human Death, 42 Mercer L. Rev. 1069 (1991))

The controversy over Terri Schiavo and the recent case on whether Jahi McMath be considered dead as determined by her physicians, shows that, defining death will remain a matter of disagreement until a final resolution is reached. Proponents of the brain death doctrine and most in the medical fields, define death as the end of all brain function.

On the other hand, the opposition believe the brain death phenomenon, is an attempt to relief hospitals and their staffs of the burden of care, fueled by the desire to make organs available for transplantation. So, where do we go from here and how can one define death in the midst of unresolved controversy?

Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment,’ ‘Criminal Law-Homicide’ and ‘SAVING LOVE’ available at Amazon. Follow @san0670.

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Categories: Academic Journal, Brain Death, Current Affair, Hospitality

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2 replies

  1. Q: If the moral, ethical, and medically appropriate decision should be to harvest as many organs for transplant as possible from a person declared brain dead (now legally a corpse) as a “social good”, and if this process requires a physician to make a declaration of death before the respirator is turned off, does this then imply there is a proverbial moral slippery slope to state sponsored euthanasia also as a “social good”?
    Is not a fear of corruption of the end of life process a consideration here? I think so.

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    • Thanks for comments, I second your thoughts that there is a state interest in promoting social good through transplantation of organs from a legally brain dead to the needy however, as you mentioned the opposition’s view is that such a conclusion is corrupt and that the brain death doctrine is premised on the rush to end care and make organs available to the sick and the “living.” The brain death phenomenon seems valid based on research and proper medical standards and since there has been no record of a brain dead resuscitated, it is wise to conclude brain death signifies end of life. In fact, some courts have ruled in favor of brain death as the definition of death. Nonetheless, there needs to be a resolution probably by the highest court or else, it will remain a controversial matter.

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