Tuesday, November 23, 2004
That's the title of a talk I frequently give around town. It's intended to be a humorous reminder that "brain death" isn't some sort of watered-down version of death; it's the real thing. All 50 states are more or less clear on this, except for New York and New Jersey, where it is possible for families to opt out of the neurological criteria for death and wait for cardiorespiratory death to occur.
It's also apparently not a clear concept in Utah, where physicians last month pronounced death on a 6-year-old cancer patient, Jesse Koochin. Even though their son's body had begun to decompose, his parents disagreed and obtained a preliminary injunction that required "life support" (a misnomer in these circumstances) to be continued until a court hearing could be held a few weeks later. The parents and hospital (Primary Children's Medical Center in Salt Lake City) reached an agreement under which the parents were allowed to take him home on a ventilator, where home hospice care would be provided, and the hospital would refrain from filing a death certificate.
Jesse's heart stopped last Friday and resuscitative attempts were unsuccessful. News articles and broadcasts routinely stated that November 19th is the date Jesse "succumbed" to cancer or is the date he died (see the Salt Lake Tribune article and the KSL-TV news broadcast that evening).
The Tribune article repeats an assertion that appears in a number of news stories about Jesse: "The murky question of what should be done when parents disagree with a doctor's determination of death remains. There are no laws saying doctors have to keep patients they believe are dead on life support." The AP story by Debbie Hummel ends on a similar note:
In Utah, there is no case law regarding whether doctors have to keep patients they believe are dead on life support. The law says a person is dead if physicians have determined "irreversible cessation of all functions of the entire brain, including the brain stem."
Statutes provide guidance in cases where a patient has an advance medical directive or family members want to remove their loved one from life support. But they do not state what should happen when a family disagrees with a doctor's determination of death.
This doesn't strike me as an advance-directive problem, because there are simply no treatment options for a patient declared dead according to neurological criteria (unless a state legislatively abandons "brain death" or carves a hole in their statute to provide for conscientious objectors). In ordinary practice, if a family's disagreement with the diagnosis of death has to do with the competence of the neurologists, the accuracy of their exam, or the criteria they applied, a second opinion would be appropriate. Beyond that, however, the law is silent because once death occurs, the patient no longer presents a medical case. Correction: the law isn't entirely silent. Once death occurs, the state's laws on the handling and disposition of dead bodies, as well as the criminal laws against the abuse of a corpse, apply. Hospital policies, as well as the word choices and practices of health care providers, should reflect these realities. And local judges should be reluctant to sow confusion and prolong the suffering of families with decisions that are uninformed about the law.