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  • CHN INFO SERIES: Brain Death
    references to basic science reports The Minnesota Criteria evolved from a study of 25 patients An EEG was done on only 9 of these patients 2 of the 9 had biologic activity at the time of brain death Their conclusion No longer is it necessary for the neurosurgeon to use the EEG in making a determination of death hardly scientifically valid The British Criteria also do not include the EEG It was reported in the British Medical Journal on February 14 1981 that the doctors in Great Britain were considerably influenced by the doctors in Minnesota who do not require the EEG The NIH Criteria were derived from a study known as the Collaborative Study The NIH Criteria were recommended for a larger clinical trial which still has not been done There are more than 30 sets of criteria A physician is free to use any one of these 30 sets Thus a patient could be determined to be dead by one set but not another BENDING THE CRITERIA No matter how seemingly rigid the criteria are the ease with which they can be bent is manifested in the report by the President s Commission on page 162 where it is written B An individual with irreversible cessation of all functions of the entire brain including the brain stem is dead The functions of the entire brain that are relevant to the diagnosis are those that are clinically ascertainable In one sentence whatever stringency there was has been reduced to no more than what can be clinically ascertainable In one sentence whatever stringency there was has been reduced to no more than what can be clinically ascertainable Thank God there is more physiology taking place in all of us than what is clinically ascertainable If one uses the Minnesota Criteria the British Criteria and now the published Guidelines of the President s Commission it is not necessary to include EEG evaluation in determining death In which case if the cortex is still functioning but is wholly cut off from manifesting its activity clinically by damage elsewhere in the brain something that does occur and which an EEG can clearly show then this functioning which could involve memory feelings emotion etc is suddenly irrelevant to the person s life or death According to the Collaborative Study 8 of those declared dead on the basis of those criteria omitting the EEG still have cortical activity when evaluated by non clinical means EEG Thus action such as excision of a beating heart results in killing at least one in twelve under such circumstances As Dr A E Walker Clinical Neurosciences 1975 has written this represents an anomalous and undesirable situation Will not the general public have stronger words Dr Frost wrote in the Journal of Pediatrics in January 1981 there is deep disagreement whether brain death is synonymous with death Death of the brain is not the same as death in a traditional sense While there is such disagreement already more than 30

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  • Brain Death
    determine empirically whether this body that shows no overt signs of intellectual activity is human or not For as pointed out supra note 58 and II 3 b neither intellection nor volition has any least empirically observable concomitant that must of necessity be present A fortiori is this true if one is speaking of a continuing potentiality for thought or volition But as was seen in 11 2 a brain dead patient on life support is empirically speaking a mortally injured but still living human body It is therefore still a living person capable by its substantial nature of thought and choice even if not by present action b Not only is lack of consciousness in those whose brains have been destroyed undemonstrable in principle but the mystics speak of the ligature of the powers of the soul in ecstasy and some higher forms of mystical union When the ligature is intense the senses cease to function the body becomes immobile breathing and even heartbeat become undiscernable and body temperature drops so that the person may be thought dead The natural operations of even mind and will are suspended by God s action so that these remain operative only in the strictly supernatural modes of faith hope and charity at the fine point of the soul 142 Might not such purifying prayer be possible and even frequent among devout believers as they approach death and judgment even when brain dead Not only Catholics speak thus Lutherans for example recently denounced any effort forcibly to interrupt the movement of man s spirit as it may be communicating through God s Spirit with His Creator and Redeemer by way of responding in trust and inner yearning 143 during the mysterious time just prior to death They explain elsewhere In some instances it is impossible to determine by ordinary means whether the patient has the capability of reacting to what goes on around him Intentionally to bring about the death of an individual so engaged through the Spirit in sighs too deep for words in communion with the heavenly Father would constitute a blasphemous intrusion into a sacred relationship prevailing quite beyond the farthest reaches of human knowledge and personal awareness 144 c The common teaching of the Catholic Church concerning the sacraments offers examples of the practical difference that can exist between permanent unconsciousness and death For example consider the situation of an unbaptized person who has sinned often and mortally during his life Suppose he had intended eventually to be baptized but always deferred action He has now suffered massive brain damage which renders him totally and irreversibly unconscious If he is in fact dead then apart from some wholly extraordinary intervention of God he is already suffering eternal punishment If on the other hand he is still alive no matter how hopelessly damaged he is still capable of receiving baptism If he is then baptized when he comes to die he will enter heaven at once through this purely gratuitous gift of God Such a difference between heaven and hell is presumably the most practical of all questions for the person involved 145 Similar arguments can be constructed with regards to the sacrament of the sick through which God remits grave sin in the unconscious according to common practice and teaching There seems nothing directly analogous to such Catholic doctrine elsewhere Yet the Lutheran text just quoted shows that the idea that what happens between the last signs of brain life and a person s death may prove of enormous practical value to him is not alien to other religious traditions as well IV Brain death legislation has been urged upon us as the solution to a number of difficult medical and legal problems But those who favor such legislation have to show two things if they are to make their point that this legislation responds effectively to the problems for whose sake it was introduced and that it will not beget other problems of at least comparable gravity It would seem however that this legislation does not solve the problems it was intended to meet Section 1 and that in fact it generates even more difficult problems Section 3 In Section 2 consideration will be given to what legislation in this domain might be appropriate 1 a The point most frequently even insistently urged is that due to medical progress it is impossible in many cases of brain damage to apply the older heart lung criteria one can no longer tell using these alone whether one is treating a corpse or a living person 146 Since it is essential in a great many areas of law to know what death means concretely the neurologists new brain related criteria of death must be made legally acceptable in a controlled and uniform manner throughout the country To do this the argument continues brain death statutes are necessary for otherwise society is restricted to the commonlaw criteria of death which are both outdated recognizing as dead only those who have suffered irreversible cessation of cardiac and respiratory function and far from uniform In brief the law must be made flexible enough to take proper account of medical advances in determining death and in particular to make brain death indisputably legal as a basis for the determination of death But the supposition that artificially produced ventilation coupled with other life support mechanisms precludes observation of the presence or absence of cardiopulmonary vital signs is incorrect Even a nonphysician can usually note the pertinent difference 147 In consequence despite repeated protestations of the President s Commission to the contrary 148 any statute or judicial decision that has chosen to call death the condition of those whose respiration and other vital signs are continuing though only with the aid of life support systems has altered the very meaning of the word death On purely philosophical if not ideological grounds this meaning is extended to include that status of a person which on medical and biological grounds can at most be qualified as dying hence still living May we be pardoned if we do not regard this playing with words as a solution to any problems The President s Commission does begin well its treatment of the view of death that is also ours death is that moment at which the body s physiological system ceases to constitute an integrated whole 149 However it goes on to assert This view holds that continued breathing and circulation are not in themselves tantamount to life 150 which if not a truism serves only to confound ventilation with respiration even as in conjunction with the Commission s preceding sentence heartbeat is confounded with circulation On the basis of this confusion it is relatively easy to slide from the notion of integrated functioning of all the various organ systems to their neurologic integration emphasis added 151 The Commissioners seek to avoid the charge that they are changing the very concept of death by arguing that both the brain s irreversible loss of function and irreversible cardiopulmonary loss of function are merely diverse criteria for the same condition death They claim merely to apply new diagnostic measures Not only is this not factually the case but it would if true render futile and void of purpose the Commission s recommended statute For what other purpose does this statute have than to permit some to be declared dead by brain death criteria who would not be by the traditional approach whether for theoretical or merely practical reasons Hence this principal argument of the President s Commission is simply a begging of the question The commonlaw approach is outdated or inadequate with respect to brain related approaches if and only if a person really is dead in the ordinary language sense simply and solely because all of his brain functions have irreversibly ceased the very point at issue On the other hand it can be admitted that the earlier commonlaw approach to death is inadequate or obsolete nowadays but for a very different reason in the context of vital organ harvesting it is too much like the brain death approach It permits those who might still live for a few minutes more to be killed for their organs even though the chance of such killing is vastly less than in the case of those with nonfunctioning or even destroyed brains since one is less likely to want vital organs from someone who has already suffered apparently irreversible cessation of all circulatory and respiratory functions b A second difficulty has a somewhat better grounding in reality doctors and hospitals are confronted with potential liability problems e g concerning the use of life support systems If so then legislation should be designed which addresses itself to those specific situations If for example what is in question is the legality of discontinuing resuscitative or artificial support procedures it is not evident how any definition of death can avoid legal problems here but only displace or shift them The decision to use not to use or to cease to use either of these classes of procedure is not equivalent in fact and should not be seen as equivalent in law to stating criteria by which to decide whether someone has died or to applying these criteria so as to declare someone dead Further a declaration of death is not or at least should not be required generally at law before ceasing treatment turning off a respirator 153 Though killing the innocent is always a grave wrong ceasing one s efforts to avert a threat to his life arising from some source other than one s own action may be anything from a grave wrong to an act of great virtue depending on one s personal and professional obligations to this individual on the possible alternatives and on a host of other circumstances 154 It is true that there is considerable difficulty connected with the formulating of a statute which would properly exempt hospitals or physicians from liability in certain carefully delimited cases But it would scarcely be more difficult than formulating a suitable determination of death statute The moral and religious exigencies involved in the former are if anything less stringent there seems less room for strictly medical disagreement there is a broader range of legal precedent and a smaller chance of extensive damage to fundamental state interests and to basic legal structures Narrower in scope and more explicit in intent it would be far more likely to attain its purpose 155 As Veith et al pointed out 156 and as was later confirmed by the President s Commission 157 there appears to be negligible present risk of courts declaring against physicians or hospitals if they are acting in any reasonable manner The real concern appears to be the cost in time and money exacted by the necessity of defending oneself should some court action arise But if this is the problem let it be addressed squarely by requiring the lawyer or perhaps the client who brings a suit which the court decides is irresponsible malicious or harassing to bear the full costs of both sides of the litigation 158 As will be shown in Section 3 brain death statutes are not only inept for solving the problems arising from liability and unjust litigation but actually augment the chances for court action c Another genuine problem arises from the obvious need to make optimal use of scarce and costly facilities the maintenance of those with destroyed brains whose situations cannot improve can block the use of these facilities for those who could profit from them or at least burdens society with needless costs As just seen in b it is not a change in the mode of defining death that is needed if prolonged treatment of dying patients is to be avoided As pointed out in 111 1 refusal to initiate or continue extraordinary treatment of the mortally wounded especially those whose brains have been destroyed is under most circumstances morally acceptable to all major religious groups except possibly to Orthodox Judaism 159 In the paste except in small children total collapse of the organism ordinarily occurred in spite of one s best efforts within forty eight hours at longest within one week 160 More recently patients diagnosed as brain dead have lived much longer e g pregnant women who have later given birth to a healthy baby Not only does brain death legislation do nothing helpful for making good use of our monies and facilities it aggravates the problem Most of those who oppose brain death legislation would not tolerate continuing treatment of those truly dead But as seen above 161 the President s Commission and those medical teams and hospitals that use brain death criteria to declare patients dead have proved willing to continue the treatment of corpses in intensive care units as long as their organs can be useful d It is also argued that it is ethically wrong to continue medical treatment of a corpse which ought instead to be removed and decently buried the law should reflect this ethical consideration Who could disagree But talk about the ethical importance of not dishonoring the dead by continuing to pump blood and air through their cadavers is quite beside the point The only ethical issue is Is this a corpse Both sides of the debate over brain death are agreed that no further medical treatment is required if the answer is clearly affirmative The question seems difficult only because two different meanings are being given to the word death as seen in a above Once this needless ambiguity is removed the putative difficulty also disappears This is not to say that abuses never occur e g because of family induced pressures but only that such abuses have no greater standing in the older approach than in the brain related ones Once again brain death statutes have nothing positive to offer e Finally it is argued that without brain death legislation there is a perpetual risk that the extraction of vital organs whether for transplants or research may be seriously impeded because of the lack of clarity on all sides as to when the organs may be taken Physicians may back away for fear of prosecution Families may refuse to let organs be taken from loved ones who still appear to be alive unless the law holds them for dead And already an outcry is being raised against the hardheartedness of those who would insist upon waiting for certitude as to the death of the donor before taking his organs for transplantation In reply it must be pointed out that if one goal of a statute is a sufficiency of properly obtained organs the psychological effect of the legislation must also be considered A legal provision guaranteeing that no organ will ever be taken while there is any least chance that the donor might yet be alive by any reasonable criterion if coupled with an appropriate advertising of the needs is far more likely to produce an abundance of organs voluntarily offered than a bill which has already begun to cast suspicion on the entire process and upon the whole medical profession 162 The least effective way to persuade people to donate their bodies or their organs is to pass a law which puts them in legitimate fear of being killed by their physician or hospital for those organs Not only is brain death legislation counterproductive with respect to this problem but the need for transplants is probably transient The far from negligible failure rate of vital organ transplants and the high cost in terms of further illness even in cases of successful transplantation 163 would indicate that transplantation is not the solution of choice to the problems presently motivating its use Better means are still to be sought whatever abundance of transplantable organs might be available And to judge from progress already made there seems every reason to think that the lack of passable artificial hearts and other vital organs is but temporary Nor should one forget that medical technology has improved generally in direct proportion to the pressure for its improvement In all likelihood the knowledge sought by research based on excised but still living vital organs can be acquired by less dubious means even if more slowly or less directly It does not seem then to be in the interest of the state to make for the sake of these very limited and highly specific needs such basic changes in its legal structures as are implied by the establishing at law of a new and different definition of death 2 From the viewpoint being developed in this article there is however one problem which does call for legislation concerned with the relation between the death of the person and the condition of his brain the courts also have begun to change the meaning of the word death in much the same manner as have the legislatures that adopted brain death statutes This new caselaw is unacceptable for all the reasons urged here against the similar legislation Thus we do concede that some legislation is needed in this domain precisely to prevent the courts from continuing to impose brain death upon the states by judicial fiat The following statute is recommended No one shall be declared dead unless respiratory and circulatory systems and the entire brain have been destroyed Such destruction shall be determined in accord with universally accepted medical standards a Destroyed and destruction are used here as explained in detail in note 68 It is important to note that destruction represents the only religiously and morally acceptable interpretation of the highly equivocal phrase irreversible cessation of function For destruction indicates the loss of structural potentiality for functioning the cessation of the organic capacity to function in accord with the comments in note 68 The President s Commission seems not to have noticed the enormous difference in reality pointed to by the small difference in words between loss of function its usual phraseology and loss of the ability to function 165 The ease with which so basic a change of meaning can be overlooked because of the similarity of wording serves admirably of course to make their arguments plausible Somewhat disingenuously they remark apropos the brain T heoretically even destruction of an organ does not prevent its functions from being restored Any decision to recognize the end is inevitably restricted by the limits of available medical knowledge and techniques Since irreversibility adjusts to the times the proposed statute can incorporate new clinical capabilities Many patients declared dead fifty years ago because of heart failure would have not experienced an irreversible cessation of circulatory and respiratory functions in the hands of a modern hospital 166 There are several things to note about this paragraph If the Commission is serious about their first statement they are admitting our case brain destruction itself is not equivalent to death since not even theoretically can life be restored to a corpse Further those patients fifty years ago would not have been dead when so declared as the reversal of heart failure in the identically situated patient nowadays shows even though fifty years ago no one on earth could have reversed or even conjectured how to reverse that cessation of function Thus to have taken the vital organs of those people fifty years ago or of their likes now would have been to kill them then at least through ignorance of the facts Our insistence on destruction is not primarily a concern with the impossibility of a restoration to function as the President s Commission misreads an earlier discussion 167 Not only does death imply no further functioning in the future but no radical capacity to function at the present moment In other words the situation hitherto known as death once it has occurred is totally incapable of being in any way affected by medical progress The Commission s comments about impossibility of regeneration of brain cells 168 is not only medically muddled again confusing loss of function here cessation of metabolism with loss of being here the destruction which that regeneration conceivably might remedy but clearly indicates as do their remarks on 3 and 82 83 unconcern for what is at the moment the patient s situation Once again prognosis whether of recovery or of total destruction is utterly irrelevant to any determination of death nor is the impossibility of even minimal recovery the same thing as death For example one may not shoot through the heart someone who is just beginning to show the first symptoms of amanita poisoning though in the present state of pharmacology if he has ingested a lethal quantity he is as surely doomed as if his brain had been destroyed b The recommended statute speaks of systems since its authors are no more interested than is the Commission in individual cells tissues or isolated organs Death implies the breakdown of the unity of the organism which unity is served by the intercooperation of at least three organ systems 169 Thus the fact of a destroyed heart need not imply concomitant destruction of the circulatory system if for example an artificial heart can for a while take its place Since respiratory here refers not merely or principally to ventilatory motion but to the effective interchanges of blood gases with those of the environment 170 cessation of breathing is not sufficient evidence for declaring death no matter how protracted evidence that the biological basis for respiration at the least the pulmonary system has disintegrated is needed The third system is not named by or for its function since there is too little knowledge of the variety and localization of the functions of the brain as system But death cannot be declared until each part of the entire group or cluster of brain parts cerebrum cerebellum pons etc that together constitute the entire brain has become incapable through its loss of structural integration of any further unitary activity c Obviously proof of destruction will rarely be ocular Whatever indices of such destruction are universally accepted among physicians at the given time are sufficient 171 Universal acceptance is required because the statute must be applicable when such potentially lethal action as vital organ removal is contemplated Universal acceptance does not mean that every single possessor of a medical degree should concur but that there be no strong reasoned opposition by professional physicians especially neurologists such as can now be found or as was offered for exampIe by Claude Beck when pressing his point about hearts too good to die For if the medical profession is deeply divided even though not evenly as to the validity of particular ways to ascertain destruction of the vital systems then even apart from the moral question of adequate certitude the door seems wide open for litigation based on the conflicting medical standards The destruction itself is determined in accord with universally accepted medical standards a phrase which leaves physicians as a group free from having to follow any particular formulation of procedure as long as they do not act in violation of standards so widely accepted The determination of death can follow upon the determination of destruction of the systems mentioned but is not itself directly envisaged by the proposed statute For reasons already given 172 death is only negatively defined i e as a state or condition that can only be present along with or following upon such destruction and even this definition is only implicit 3 Though a number of problems that brain death statutes are likely to generate have been mentioned in passing several remain to be considered graver and more profound a As discussed in 1 a above brain death statutes with the possible exception of that proposed by Capron and Kass all radically alter the concept of death A fairly obvious consequence of this change in the meaning of the word is that more than one concept of death is thereby established at law a consequence that is most evident in the case of those statutes that like the UDDA offer alternative criteria for death 173 Such a statute establishes at least three different kinds of death A person is dead in the case of irreversible cessation of all functions of the entire brain even if his circulation and respiration and other vital functions continue He is also though differently dead in the case of irreversible cessation of circulatory and respiratory functions even if his brain can continue somehow to function for a time something the Commission regards as theoretically possible 174 And finally he is dead if he suffers the collapse and disintegration of all these systems 175 If these three situations were medically physiologically or biologically identical there would be no need to mention more than the last one 176 which could stand for either of the others So though the Commission argues that there should not be different kinds of death or some people who are more dead than others 177 this is exactly what the Commission s recommendation would establish The principle stricture of Capron and Kass against Kansas brain death statute was that it appears to be based on or at least gives voice to the misconception that there are two separate phenomena of death 178 The President s Commission interestingly enough summarizes and accepts the Capron and Kass argument as follows The dual nature of the Kansas statute is its most troublesome feature The alternative standards are set forth without a description of how they were to be related to the single phenomenon death The two pronged statute seems to create one definition of death for most people and another apparently more lenient standard for harvesting organs from potential donors 179 Yet except for a few scattered assertions that death is a single phenomenon the Commission nowhere shows why the dual nature of their proposed statute is less troublesome or how their alternative standards 180 are any better than those of Kansas except for simplicity of wording 181 Another aspect of this difficulty is that if either general criterion in the UDDA is sufficient of itself for a determination of death then neither by itself is necessary 182 Hence while the patient may be declared dead on the basis of irreversible nonfunction of the brain in spite of continued circulation and respiration a much desired result of this statute the patient may also be declared dead on the basis of circulatory and respiratory arrest even though some functioning of the brain continues The general unconcern about residual cortical functioning shown by the use of the Minnesota and related criteria 183 suggests that the question need not be one of mere logic chopping Thus one might legitimately ask if circulatory and respiratory functions stop permanently throughout the body would one then be free to keep alive by suitable perfusion the surgically separated head of the cadaver for experimental purposes as has already been done with infants heads by American doctors working in Finland 184 These conclusions might be avoided by interpreting the UDDA as some sort of incomplete disjunction But in a matter of such import the precise relation of the two criteria then needs to be spelled out clearly in the statute It does not help to argue that a single state death is being described by means of three different sets of criteria If so all three should become applicable at the same moment when that one state begins the only difference being in the ease of application or in the expertise required to use one or another set under the concrete circumstances 185 But their applicability at exactly the same moment is precisely what the President s Commission denies to be the case 186 Further for the purposes of organ removal which though eschewed by the Commission as its principal concern is surely still a major factor the irreversible cessation of circulatory and respiratory functions cannot be allowed to take place no matter how nonfunctioning the brain may be until all is ready for the transplantation or experiment envisaged even at the cost of placing the dead patient in the intensive care unit The same sort of problem arises in less obvious fashion for those statutes that define death solely in terms of the brain and break with linguistic and legal tradition making death refer to a condition not of the body but of the brain alone 157 Now the persuasiveness of these statutes comes from their claim to be simply a more accurate way of stating what was always the way of determining death identical with this except in the tiny handful of cases where the brain dead are maintained on ventilators For the older criteria are said to be in principle merely particularizations of the new ones 188 Therefore any person declared dead on the basis of a valid application of the older criteria would also be declared dead on the basis of a valid application of the new ones If then there is any difference in the ranges of application this difference can only be that some people who could not rightly be declared dead on the basis of the older criteria now will be considered dead Putting the best construction on things assume that these are cases where the new criteria are right and the old ones wrong So far however as is now known someone would wrongly be considered alive by the older criteria and rightly considered dead by the new ones only in situations where artificial means of life support are in use which would simply serve to ventilate air and circulate blood through what is in reality only a cadaver Now why in these cases is it considered essential to have a criterion for death s having occurred given that in these and most other cases brain destruction is a sufficient criterion for permitting cessation of direct efforts to delay death that is for stopping the artificial supportive measures The only objectively grounded answer would seem to be that the cessation of supportive measures would damage the cadaver and render it useless for some purpose 189 in brief it would interfere with successful utilization for research or transplant of organs Thus the single criterion statutes are not independent of the purposes for which they are to be used 190 Though pushed into the background the basic question still remains Are all persons declared dead in accord with a single brain death criterion in fact dead in the ordinary language sense of dead Logical clarity is gained by an attempt to suppress altogether the traditional notion of death and to replace it with one that lacks any legitimacy on the biological level 191 where definitions and criteria of death properly belong This suppressed concept however will not simply disappear the empirical concept of death is more deeply rooted in human cultures including our own than any legal action can tear out 192 We will instead have two concepts of death But not only two as Dr Molinari has recently pointed out 193 there are at the very least three practically different ways of diagnosing a dead brain which imply three different definitions of death even when based on brain related criteria only Such multiplicity of meaning within the framework of a single criterion formulation introduces an ambiguity and confusion that is certainly not good medicine and can hardly be regarded as good law This effort to force death to mean at law something it has never meant before in either law or common language and all the while saying that nothing is being changed is an especially sinister mode of punning when as has already occurred in the language used by the news media and the courts apropos of abortion and infanticide it is introduced so as to permit the snuffing out of what are probably or certainly human lives Trusting that the President s Commission was speaking more in accord with its own principles when it stated the Commission believes that the statute recommended must accurately reflect the social meaning of death and not constitute a mere legal fiction 194 we would urge rejection of the statute recommended by the Commission and this precisely on the grounds the Commission itself offers On a matter so fundamental to a society s sense of itself and so final for tile individuals involved one would desire much greater consensus than now exists before taking the major step of radically revising the concept of death 195 If ideological presuppositions seem to warrant the practical action the President s Commission is urging then let them follow their own principle If a special need is identified for acting on a different basis a separate status other than that of being dead could be defined for that purpose 196 the status say of being in extremis or almost dead or even as good as dead Then at least the issue would be presented to the American people without confusion of language and the requirement of informed consent to this change of our law and medical practice mentioned in the Introduction stands some chance of being met We might also point out not only that the legal existence of three easily distinguishable time separated biologically different kinds of death constitutes a major deviation from all the traditions of American law or any legal system hitherto but that such a multiplicity does not augur well for the avoidance of suits and other court actions For most people once aware of the concrete implications of the law will not accept it The law Sir is a ass b All the brain death statutes actual or proposed rely heavily upon a requirement for usual and customary 197 ordinary 198 accepted 199 or reasonable 200 standards of medical practice in order to allow for the context of each concrete case and its particular circumstances This represents an effort to deal with the serious problem discussed in I 2 that there is no way positively to specify a general criterion of death which is not contingent upon the current state of medical art and science and upon the endless details of an individual situation Having chosen to make such a positive specification rather than a purely negative one such as that proposed in Section 2 above the framers of brain death statutes must perforce find some way to take into account the infinitely varied physiological contexts in which death occurs Some provision is also needed to allow for an honest development of necessary operational criteria and tests and to learn the proper application of all these so as fully to protect the rights both of the patient and of others Unfortunately none of the brain death statutes handles the matter well i The phrase reasonable medical standards emphasizes the important point that abusive standards would not be tolerated Yet this wording would introduce considerable uncertainty into tile operation of the courts thus working directly against one of the chief reasons for having a brain death statute Given the traditional role of the courts to resolve controversies over the development of reasonable standards in any field it is difficult to see how this sort of statute will reduce the threat of litigation The President s Commission sets aside reasonable standards for the related reason that lay jurors would be placed in the position of judging the reasonableness of professional behavior 201 ii The Commission while opting for accepted medical standards offers no criticisms of usual and customary or ordinary medical standards In fact by its recounting with no suggestion of disapproval Idaho s equating of accepted standards with usual and customary ones the Commission would seem to see all three wordings as at least roughly equivalent 202 presumably because all three of these wordings intend the same result 203 A major problem with usual and customary or ordinary standards lies in the underlying

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  • Definition Of Death Debated
    clear say the authors that only the brain was immune to resuscitation or replacement leading to a focus on the brain as the vital structure separating life and death In 1965 the term brain dead was coined when a renal transplant took place using organs donated from a patient with no recorded brain function But even the lack of brain waves as a marker of death has problems say the authors There appeared patient cases or technological limitations that cast doubt upon its accuracy as the absolute test of absent brain function they write A 1981 President s Commission found that cessation of blood flow lack of respiration and loss of full brain function defines death But because the body can be kept alive by only one primitive part of the brain the brainstem confusion remains The irreversible loss of higher brain functions might allow death to be declared even if brainstem neurological function persists explain the authors Cases like anencephalic babies born without the more evolved parts of the brain but with beating hearts and functioning organs beg the question as to what constitutes life as well as what defines death The study says that one line of thought holds that all other bodily functions become secondary to vital personhood When higher brain function is lost say the authors so is personality memory and consciousness itself Therefore anencephalic infants say the researchers could be regarded as possible heart beating organ donors and nothing more Study authors say the same could hold true for adults If higher functions that were previously present are irreversibly lost the authors explain proponents of the higher function brain dead definition argue that such patients are dead and may become organ donors If loss of personhood or cognition constitutes loss of life study authors say

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  • PVS RECOVERY
    to be waking up cells in their brains that were thought to have been dead In the next two months trials on patients are expected to begin in South Africa aimed at finding out exactly what is going on inside their heads Because at the moment the results are baffling doctors The remarkable story of this pill and its active ingredient zolpidem begins in 1994 when Louis Viljoen a sporty 24 year old switchboard operator was hit by a truck while riding his bike in Springs a small town 30 minutes drive east of Johannesburg He suffered severe brain injuries that left him in a deep coma He was treated in various hospitals before being settled in the Ikaya Tinivorster rehabilitation centre nearby Doctors expected him to die and told his mother Sienie Engelbrecht that he would never regain consciousness His eyes were open but there was nothing there says Sienie a sales rep I visited him every day for five years and we would speak to him but there was no recognition no communication nothing The hospital ward sister Lucy Hughes was periodically concerned that involuntary spasms in Louis s left arm that resulted in him tearing at his mattress might be a sign that deep inside he might be uncomfortable In 1999 five years after Louis s accident she suggested to Sienie that the family s GP Dr Wally Nel be asked to prescribe a sedative Nel prescribed Stilnox the brand name in South Africa for zolpidem I crushed it up and gave it to him in a bottle with a soft drink Sienie recalls He couldn t swallow properly then but I helped him and sat at his bedside After about 25 minutes I heard him making a sound like mmm He hadn t made a sound for five years Then he turned his head in my direction I said Louis can you hear me And he said Yes I said Say hello Louis and he said Hello mummy I couldn t believe it I just cried and cried Hughes was called over and other staff members gathered in disbelief Sienie told me he was talking and I said he couldn t be it wasn t possible she recalls Then I heard him His mother was speechless and so were we It was a very emotional moment Louis has now been given Stilnox every day for seven years Although the effects of the drug are supposed to wear off after about two and a quarter hours and zolpidem s power as a sedative means it cannot simply be taken every time a patient slips out of consciousness his improvement continues as if long dormant pathways in his brain are coming back to life I see Louis before his daily medication yet he is conscious where once he would have been comatose Almost blind because of a separate and deteriorating condition there is a droop to one side of his mouth and brow because of brain damage His right arm is twisted awkwardly into his side Louis is given a pill and I watch It is 8 30am After nine minutes the grey pallor disappears and his face flushes He starts smiling and laughing After 10 minutes he begins asking questions His speech is impaired because of the brain damage and the need several years ago to remove all his teeth but I can understand him A couple of minutes later his right arm becomes less contorted and the facial drooping lessens After 15 minutes he reaches out to hug Sienie He pulls off her wedding ring and asks what it is It s a suffer ring she jokes And he says Well if you re suffering you should make a plan The banter continues and he remembers conversations from the previous day and adds to them Louis I ask do you feel any change in awareness before and after the pill No he says None whatsoever Whatever is happening he feels the same How do you know this is your mother I ask referring to Sienie Remember Louis cannot see He says Because I recognise her voice and I know she loves me Nel was as amazed at Louis awakening as everyone else A GP in Springs for 40 years when he isn t seeing up to 100 patients a day he spends his time restoring vintage cars Married with three grown up children he has lived in the same house all his life Something strange and wonderful is happening here and we have to get to the bottom of it he says Since Louis I have treated more than 150 brain damaged patients with zolpidem and have seen improvements in about 60 of them It s remarkable After Louis awakening was publicised in the South African media Dr Ralf Clauss a physician of nuclear medicine the use of radioactive isotopes in diagnostic scans at the Medical University of Southern Africa contacted Nel to suggest carrying out a scan on Louis The results were so unbelievable that I got other colleagues to check my findings says Clauss who now works at the Royal Surrey County Hospital in Guildford We did scans before and after we gave Louis zolpidem Areas that appeared black and dead beforehand began to light up with activity afterwards I was dumbfounded and I still am Clauss says immediate improvements in the left parietal lobe and the left lentiform nucleus were visible In lay terms these are important for motor function sight speech and hearing I remember saying to Dr Nel that we were witnessing medical history says Clauss No one yet knows exactly how a sleeping pill could wake up the seemingly dead brain cells but Nel and Clauss have a hypothesis After the brain has suffered severe trauma a chemical known as Gaba gamma amino butyric acid closes down brain functions in order to conserve energy and help cells survive However in such a long term dormant state the receptors in the brain cells that respond to Gaba become hypersensitive and as Gaba is a depressant it causes a persistent vegetative state It is thought that during this process the receptors are in some way changed or deformed so that they respond to zolpidem differently from normal receptors thus breaking the hold of Gaba This could mean that instead of sending patients to sleep as usual it makes dormant areas of the brain function again and some comatose patients wake up In Kimberley the once booming home of the De Beers diamond empire Riaan Bolton s family heard of Nel s work after he and Clauss had papers published in the medical journal NeuroRehabilitation and the New England Journal of Medicine several months ago Riaan suffered severe brain trauma when he was thrown from a car in a traffic accident in July 2003 A keen cricketer and rugby player the 23 year old was studying to become an industrial engineer but still found time to play guitar in a band One specialist said he had a 5 chance of recovering another said he had no chance whatsoever of regaining consciousness says his mother Johanna She and her husband Tinus spend about 1 000 a month on round the clock care for their son in a converted garage at their home but until June they had seen no sign of awareness in him Then they asked their doctor Clive Holroyd to contact Nel for advice There was no movement no recognition just nothing says Tinus Then we gave him the pill and we noticed him moving the fingers in his left hand and touching them against each other His eyes went big and he began looking from left to right The doctor started asking Riaan questions He said Look at me Riaan and Riaan looked straight at him and focused on his face Then the doctor asked him to move his hand and he moved it And then he lifted his head from the pillow and began looking around I couldn t believe it I watch as Riaan is given his medication As with Louis his face flushes and his eyes begin to sparkle and focus within minutes Gone is the 1 000 yard stare He hugs his mother and looks at her face but even though I am amazed the family reckon this isn t his best day so far They show me a number of DVDs they shot in July In them Riaan responds to questioning nods and shakes his head drinks through a straw often laughs and says Hello He remains severely brain damaged but there is clear evidence of understanding and communication It has given us hope says Johanna To have communication with him again to know he becomes aware of us and to tell him we love him knowing he can hear us is simply beyond belief It has been a very moving experience Holroyd remains perplexed There is a measurement of the depths of coma called the Glasgow scale with three being the worst and 15 being normal he says Riaan was six but within 10 minutes of taking the pill he is up to nine It s simply unbelievable And the mind boggling thing about this is that it s done with a sleeping pill Some time ago Riaan had a cardiac arrest and it was a difficult call as to whether or not to resuscitate him His mother insisted he should be and look at him now From now on this will cause serious ethical issues over whether to let such coma victims die Those issues became even more complicated last week when a British woman believed to be in a persistent vegetative state astonished doctors by responding to their voices Although these awakenings are the most dramatic aspect of the zolpidem phenomenon Percy Lomax the chief executive of ReGen Therapeutics the British company funding the South African trials believes Nel s work with less brain damaged patients could be the most significant Many stroke victims patients with head injuries and those whose brains have been deprived of oxygen such as near drowning cases have reported significant improvement in speech motor functions and concentration after taking the drug The potential for this drug is enormous says Lomax ReGen has applied for a patent to use the drug now out of patent and generically available for the treatment of secondary brain injury after brain trauma The object of the clinical trial is to scientifically establish that the compound works in the way it has been shown to work in individual cases It will be carried out on patients known to react well to zolpidem and by lowering the dosage it is hoped that the sedative side effects will be reduced but the brain stimulation will still continue It may be that further research will allow us to better understand the way the drug works and to develop a new generation of better targeted pharmaceuticals He says market research estimates the potential market for zolpidem in brain damaged patents could top 4 3bn 2 3bn The company that first developed zolpidem Sanofi Aventis was contacted by Nel and Clauss but appears to have chosen not to become involved in the trials or the use of the drug on brain damaged patients Instead the brain scans on up to 30 patients will be carried out at the Pretoria Academic Hospital by Professor Mike Sathekge head of nuclear medicine and Professor Ben Meyer one of South Africa s most renowned physicians The results so far could be potentially very important says Meyer We have never before spoken of damaged cells in the brain going into hibernation we have thought of them as necrotic or dead cells But we know cells can go into hibernation in the heart and thyroid so why not the brain If there are hibernating cells in damaged brains it may be that this drug helps to wake them in some people In South Africa I meet a procession of brain damaged patients who feel the drug has changed their lives for the better There is 32 year old Miss X who can t be named for legal reasons She suffered four cardiac arrests and hypoxia a lack of oxygen to the brain when a hospital s apparent failure to diagnose a gall bladder problem resulted in her contracting septicaemia four years ago She can barely stand her arms are in spasm she cannot speak although her intelligence has not been affected and the left side of her face droops She was given zolpidem for the first time just a week before I see her and her parents say the improvement was such that she has come back for more Miss X is given a pill by Nel at 4 37pm By 4 50 the left side of her face is no longer drooping her eyes sparkle and she smiles broadly At 5 02 her arms have relaxed enough for her to fold them and she is laughing with her parents Ten minutes later she stands up stretches to her full height and claps her hands Using a card keyboard she spells out answers to questions I have for her Can you use the keyboard more quickly with the medication She answers Yes Does she feel an improvement Yes I am not falling over I am not coughing so much I can swallow easier I feel my limbs are much more relaxed But does she feel more tired No What is she hoping for To talk again I d love to be able to call my cats to come to me At 5 22pm Miss X issues a long drawn out Wall eeee and hugs Nel Then there is Wynand Claasens 22 who suffered severe brain damage five years ago when he was assaulted outside his school A series of subsequent strokes left him wheelchair bound depressed and aggressive He used to be a long distance runner Nel gave him Stilnox for the first time in early July this year I was struggling to walk my left eye was hanging lower and was smaller than my right eye I was feeling very angry I had pains in my knees and I was having trouble going to the toilet Wynand says Now I m walking with one stick my face has evened up I can go to the toilet when I m ready and the pain in my knees has gone I take one 10mg tablet each night and I feel about 60 better The list goes on Heidi Greven who is now 21 was starved of oxygen to her brain at birth Her mother Babs says she used to sit in silence locked inside her own head never communicating and looking terribly unhappy When I meet Heidi she is walking around curious about everything She examines the shorthand in my notebook Although too shy to speak she will always be brain damaged she jokes with Nel At home she now chats with her parents I ll never forget the first time she was given the medication says Babs It was in July 2002 After 10 to 15 minutes it was like a curtain being lifted from her eyes I couldn t believe it She suddenly started looking around and fiddling with magazines Then she went outside the door and looked into the other rooms in the surgery She found a portable radio and put it up to her shoulder and began listening to it Beforehand she would just sit there doing nothing That was a Saturday When she went to a special school on the Monday her teacher sent a note home asking what we had done to make Heidi come alive There are others too Paul Ras a 69 year old runner who suffered brain damage after a traffic accident Now he is convinced zolpidem is responsible for a recovery that allows him to run races up to 50km with only one hip And Theo van Rensburg a 43 year old lawyer who suffered severe brain injuries in a car crash in 1991 He also suffered a stroke while in a coma for three months He took Stilnox in 1999 and reported an improvement in balance co ordination speech and hearing I go horse riding now he says He still has difficulty speaking but I can understand him It s really good for my balance Finally I meet 22 year old Janli de Koch whose eyesight was damaged in a car accident in Switzerland in December 2004 The injury resulted in a restriction of her visual field to two corners of her eyes she cannot see below a certain point so that she bumps into things and falls over Last month she was prescribed zolpidem and now says she can already see more than she used to She hopes the improvements will continue In 1969 the neurologist Dr Oliver Sacks used the then new drug L Dopa to awaken a group of catatonic patients who had survived the 1917 1928 epidemic of the mysterious sleeping disease known as encephalitis lethargica The 1990 film Awakenings chronicles Sacks delight at his patients progress and his despair when the medication stops working and they slip back into a catatonic state The hope with zolpidem is that the improvements will continue and there will be no regression In the patients who have used the medication longest such as Louis Viljoen and Theo van Rensburg the signs are that progress continues But time will tell Perhaps the last word should go to Pat Flores the mother of George Melendez the 31 year old coma patient who reassured his parents that he wasn t in pain after taking Ambien as zolpidem is known in the US He was starved of oxygen when his car overturned and he landed face down in a garden pond near his home in Houston Texas in 1998 The doctors said he was clinically dead one said

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  • RON STEWART could hear but not s
    in primary care all of these were promised by the Liberals Stewart s quixotic crusade also included an attack on doctors he wanted to change the way they were paid and in some instances to replace them on the front lines of medicine Criticizing this agenda at the time former Conservative health minister George Moody depicted Stewart as a man whose policies were out of touch with reality Looking back today Stewart s colleague Mike Murphy sees a man who was something of a prophet In our world he s so far ahead of us that there are people who call him a visionary said Murphy the head of anesthesia at the Queen Elizabeth II Health Sciences Centre Stewart was on the leading edge of health reform in advocating preventive medicine and reforms to emergency medicine Murphy said He also said that bringing in a modern emergency medical system EMS may have been the high water mark of Stewart s political career Murphy should know Stewart appointed him to head up the EMS effort What impressed Murphy more about Stewart s tenure as health minister were his pioneering attempts to introduce a modern home care system in Nova Scotia well before the idea became fashionable He was two or three decades ahead of his time in terms of home care said Murphy the same man who called Stewart a legend I don t think he consciously foresaw the demographic changes and nursing shortages that would drive home care It s as if he just knew somehow So what went wrong Even Stewart agrees that he could not implement all the reforms he promised many are still in embryo today Let s face it Murphy said Some people think Ron s an asshole He just assumes people will follow him but he sometimes can have difficulty enlisting people in his cause in getting people to march in line with him Stewart had the vision in short but he couldn t always get the troops in the trenches to march in lockstep I m a very impatient person he says I believe that my political life brought that out more than anything When he was minister of health Stewart says he was passionate about reforming Nova Scotia s health system But passion is blinding It can be destructive when you have responsibilities as deep and all encompassing as those of a minister I recognize that now Looking back Stewart now says he was bruised but not traumatized by his career in politics But I put it behind me Once I left I was gone IF POLITICS wasn t a formative experience for Stewart his boyhood in Cape Breton was His father Donald who died in 1993 at the age of 86 provided the future doc with his first experience in emergency medicine His mother Edith 91 is alive and well and living in North Sydney Stewart says he was about seven when his dad came home early from the mines right after

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  • Interview Brain Death Alan Shewm
    Harvard Medical School but also from the Divinity School I think and from Ethics and from Law It was a bunch of people who got together to try to nut out a problem or to think about a problem and I think to say what they came up with is a contrivance merely to serve the interests of organ donation is unfair I can understand people having problems with accepting that those who ve lost all brain function are in fact dead But I think it really does come back to how we see ourselves And I think for a lot of people when all brain function has irreversibly ceased they do see that as the death of the person The idea that death has to be something that we can recognize that because there s such a contrast between life and death those two states are clearly different we think we ought to be able to recognize very easily the point of transition between life and death But that s not historically the case and we ve used different ways of thinking about death and dying Some of my favourites are John Donne As virtuous men pass mildly away And whisper to their souls to go Whilst some of their sad friends do say The breath goes now and some say no That s an elegant way of talking about this ambiguity of the transition between life and death So for practical reasons we as a society have had to define life and death and we do it in all sorts of different ways I believe in New Zealand law you re dead when a doctor certifies you re dead And that s the criterion In New South Wales law you re certified dead when all brain function is irreversibly ceased and that s the notion that we ve been talking about or when their circulation has irreversibly ceased But that doesn t mean that that s the end of a process It s a point in a process Some tissues remain viable for many hours after the heart has ceased Corneas can be retrieved for transplantation as viable tissues and so can skin for even up to twenty four hours after death in a conventional sense And skin and hair continue to grow after death in a conventional sense for many hours So that there is some function in the body even when we define death in the conventional sense of no breathing and no circulation So I don t think we should get too caught up in the fact that this brain death notion or certifying death based on a brain function criterion is a contrivance Of course it is in the sense that we have to arbitrarily define this in some way because if we waited until every cell in the body had died until every single function in the body had died it would be very difficult for us to certify that anyone was dead that hadn t actually structurally decomposed Wendy Carlisle There are some people out there who think that in the not too distant future the line between life and death will become more blurry than it is now One of those people is Jim Hughes who I should also mention is Secretary of the Trans Human Society in the United States Well Jim believes that medical science will keep pushing the limits Jim Hughes Well the second thing that s going to happen and is already happening is that brains which have had a cascade of destruction throughout them such that in the past they would have gone completely necrotic and the entire brain would have been unusable after a certain point we are now increasingly able to take those brains stop the cascade of death in the brain and potentially now bring back neurological activity bring back neural cell growth re introduce stem cells which will apparently magically find their way to the parts of the brain that are damaged and attach themselves and begin to function in the way they re supposed to function and begin to pick up a role in the brain We are also beginning to be able to introduce silicon computer interfaces with the brain that could in say five ten years allow the brain to interface with an advanced computer and the computer could begin to take on various aspects of neurological function and of course do many other things as well So those technologies the organic technologies the pharmaceutical technologies the cybernetic technologies of neural remediation will mean that if you got brought in and you had a severe head injury you re no longer going to be considered automatically dead There s going to be a period in which you have to be subjected to a series of tests and potentially a rather protracted series of tests to see whether there s enough of you left in your brain after we try to bring it back Just as we do now with concussions when a brain comes in with concussion and they re unconscious we wait a couple of weeks to see whether they wake up and see what s left of their memories to see how neurologically damaged they are It s going to become even more complicated in the future because in addition to during that waiting period we re going to be introducing all these technologies to see if we can bring anything back and so even someone that we would consider brain dead today may in the future simply be nominally dead until we can really figure out if they re dead or not Death is going to be increasingly like someone who s missing in war and you just have to wait until the war s over and see if they wander out of the battlefield or wander out of the concentration camp someplace It s going to be a matter of there ll still be grieving

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  • The New England Journal of Medicine
    surprising that many people seem to think that brain death is a separate type of death that occurs before real death This confusion is reinforced when hospital personnel state and journalists repeat that life support is being removed from such patients 13 The confusion even crops up in judicial decisions as illustrated by the Pennsylvania judge who opined that when the life supporting measures were suspended death ensued although the person was legally dead even before heroic life support procedures were discontinued 14 More than confusion is at work here however Since the word brain usually refers to cognition critics of the Uniform Determination of Death Act and of the existing medical consensus believe that the law should equate death with the loss of functions in the higher brain rather than the whole brain 15 16 Two philosophical positions are advanced that permanent unconsciousness negates personhood because to be a person as opposed to merely a human being one must possess at least the potential for thought and that it destroys personal identity which depends on self awareness and the continuity of one s personal history There are inherent difficulties in translating such higher brain concepts into policy to say nothing of their radical implications namely that patients in a persistent vegetative state as well perhaps as severely demented or retarded persons ought to be declared dead Those who promote these positions also confuse the question When is a person dead for which it seems important to have a uniform answer with the question When should a person be allowed to die for which the answer ought to depend on the wishes of the patient or those authorized to decide on his or her behalf many of whom would choose to forgo life support in cases of persistent vegetative state or other higher brain impairment Therefore it is not surprising that a determination of death based on loss of higher brain function has not replaced the prevailing consensus that requires loss of function in the brain stem as well as the neocortex and other regions of the brain Although no state has adopted a definition that refers exclusively to higher brain functions the possibility that brain death is different from ordinary death does continue to affect policy debates Only one model statute the Capron Kass proposal 17 the model that was the most widely adopted before the Uniform Determination of Death Act set forth the relation between the two standards for determining death irreversible cessation of circulatory and respiratory functions and irreversible cessation of all functions of the brain including the brain stem This statute makes clear that these two standards are different means of measuring a single phenomenon and defines the appropriate occasions for the use of one standard or the other The statements from major medical authorities are hardly more helpful The 1981 report to the President s Commission from the medical consultants on the diagnosis of death 5 is the only statement I am aware of that

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  • Should We Be Dying to Donate
    which legally assumes that everyone is automatically willing to be an organ donor unless they have documented an objection to it Some states already have laws to enforce organ donation if a person has signed an organ donation card regardless of family objections A US Health and Human Services HHS advisory committee has recommended that hospitals be required to notify organ procurement organizations prior to the withdrawal of life support so that such patients can be evaluated as potential organ donors 6 In 2002 the Association of Organ Procurement Organizations sent a letter to the head HHS proposing that a hospital s failure to identify a potential organ donor be reported as serious medical error 7 Financial incentives for organ donation are also being proposed to increase the pool of potential organ donors Educational programs for promoting organ donation are entering many school systems and especially aimed at new teen drivers 8 The most outrageous proposal of all is performing outright euthanasia to obtain organs When Jack Kevorkian removed the kidneys of one of his victims and offered them for transplantation in 1998 the world was stunned and horrified However by 2003 the prestigious journal Critical Care Medicine published an article by Drs Robert D Troug and Walter M Robinson in which they stated We propose that individuals who desire to donate their organs and who are either neurologically devastated or imminently dying should be allowed to donate their organs without first being declared dead 9 Make Informed Decisions Honesty is always the best policy especially when it comes to life and death issues However in the area of organ donation ethical problems and disputes tend to happen below the public s radar in favor of promoting organ donation and reassuring the public But despite the danger of undermining public confidence in the worthy goal of organ donation it is critical that the public be adequately informed about all the ethical issues and given an opportunity to have a voice in determining policies before just signing an organ donor card can be considered truly informed consent Notes 1 The Ohio Study in Light of National Data and Clinical Experience by Tracy C Schmidt Kennedy Institute of Ethics Journal September 2004 Vol 14 No 3 2 Denver Coroner Rules Homicide in Organ Donor Case LifeSiteNews com October 12 2004 Available online at www lifesite net ldn 2004 oct 04101208 html 3 AP HC rejects writ for organ harvesting the Deccan Herald 12 16 04 Available online at www deccanherald com deccanherald dec162004 n11 asp 4 Reconsidering the Dead Donor Rule Is it Important that Organ Donors be Dead by Norman Fost Kennedy Institute Journal of Ethics September 2004 5 Ibid 6 US Department of Health and Human Services Advisory Committee on Organ Transplantation Recommendations to the Secretary November 2002 Available online at www organdonor gov acotrecsbrief html 7 Organ donation proponents try controversial new tack by Andis Robeznieks American Medical News June 16 2003 Available online at www ama assn org amednews 2003 06 16 prsd0616 htm 8 Decision Donation A School Program That Gives the Gift of Life Available online at www organdonor gov student 9 Role of brain death and the dead donor rule in the ethics of organ transplantation by Robert D Truog MD FCCM Walter M Robinson MD MPH Critical Care Medicine 31 9 2391 2396 September 2003 Abstract available online at www ccmjournal com pt re ccm abstract 00003246 200309000 00019 htm Voices copyright 1999 2007 Women for Faith Family All rights reserved Link to Women for Faith Family web site Other web sites are welcome to establish links to www wf f org or to individual pages within our site SOURCE Should We Be Dying to Donate Voices Online Edition VOICES Vol XX No 1 Eastertide 2005 Women for Faith Family PO Box 300411 St Louis MO 63130 314 863 8385 Phone 314 863 5858 Fax Email Ethical Implications of Non Heart Beating Organ Donation by Nancy Valko RN Whether we are renewing our driver s licenses watching the TV news or just picking up a newspaper it s impossible to miss the campaign to persuade us to sign an organ donation card We see story after story about how grieving relatives have been comforted by donating a loved one s organs after a tragic death and how grateful the people are whose lives have been changed by the gift of life But in the understandable zeal to save or extend as many lives as possible through organ transplantation are some ethical boundaries being crossed A case in point is the newer issue of non heart beating organ donation NHBD which comprises about 2 of all organ donations now but is expected to increase with more widespread use While most public information about organ donation emphasizes that organs can be taken only after all efforts to save your life have been exhausted and brain death has been determined in the past decade a little known innovation has been changing these rules Now organ donation can occur in a person who is not brain dead but whose relatives have agreed to withdraw a ventilator a machine that supports or maintains breathing and have the person s kidneys liver or pancreas removed when the heartbeat stops A Brief History of Non Heart Beating Organ Donation When organ transplantation was first attempted organs were taken from people who had recently died These organs usually failed however because they had deteriorated too much during the dying process In 1968 an ad hoc committee at Harvard recommended a new way of determining death the loss of function of the entire brain This is commonly known now as brain death Before this only the irreversible loss of heart and breathing function cardiac death had been generally used to determine the point of death Brain death has been promoted as a method to determine death when a person is on a ventilator but still has a pulse blood pressure and other signs of life Brain death holds that the lack of functioning of the entire brain is the truest sign of death and that the rest of the body soon stops functioning even if the ventilator is continued The immediate clinical benefit of adopting this new method of determining death into law was that vital organs like the heart liver and kidneys could be removed harvested in transplant terminology while still functioning and would therefore be more likely to be transplanted successfully In brain death organ donation the ventilator is continued until the organs are removed In all states now death can be legally determined either by the traditional irreversible cardiac death or by brain death While questions about brain death are still being debated in ethical circles it is now apparent that the number of organs from people declared brain dead will never be enough to treat all patients who need new organs Thus in the past decade doctors and ethicists have turned to a new source of organs patients who are not brain dead but who are on ventilators and considered hopeless In these patients the ventilator is withdrawn and organs are quickly taken when cardiac death rather than brain death is pronounced This is known as non heart beating organ donation At the present time about half of all organ procurement organizations have been involved in at least one NHBD procedure even though most people are unaware of this new method of obtaining organs One of the first and few public discussions of NHBD in the media occurred in April 1997 when the CBS television program 60 Minutes aired a segment on NHBD which began with the case of a young woman who was shot in the head and although not brain dead was judged to be fatally injured and a perfect candidate for NHBD However the medical examiner that conducted a later autopsy said that he believed the gunshot wound was survivable This led narrator Mike Wallace to question the little known NHBD policies at some hospitals that would allow taking organs for transplants from persons who could be in Wallace s words not quite dead The 60 Minutes segment went on to examine the proposed NHBD policy at a Cleveland hospital that included potentially dangerous drugs such as Heparin a blood thinner and Regitine a drug that dilates blood vessels to help preserve the donor patient s organs before death This prompted a local prosecutor to raise the specter of such policies seeking to hasten the deaths of terminally ill patients to obtain their organs for transplant 2 At the program s end Wallace predicted that as a result of the broadcast NHBD was unlikely to continue But he was wrong Transplant organizations immediately condemned the 60 Minutes segment as inaccurate and unfair and defended NHBD as an ethical way to obtain organs after death By December the Institute of Medicine IOM the research arm of the National Academy of Sciences delivered a report on NHBD While the report admitted that some hospitals were using questionable methods to get organs for transplants it called NHBD ethically acceptable and called for more research and the setting of national standards for NHBD This 1997 IOM report3 did not address all issues such as standards for withdrawal of treatment decisions but instead made recommendations such as having transplant surgeons wait five minutes after the heart stops before harvesting organs After this report the brief flurry of media interest in the topic dissipated However in 2000 the IOM issued a follow up report4 that found that almost none of the recommendations made about NHBD were now being followed universally Even more shocking the 2000 report revealed that the participants in the report could not reach a consensus on even such basic issues as whether conscious people on ventilators should be allowed to donate organs using NHBD Despite this the report still encouraged all organ procurement organizations to use NHBD NHBD Procedures and the Ethical Implications Although as the IOM report showed there are great variations in NHBD procedures among various hospitals NHBD is generally divided into controlled and uncontrolled categories Controlled NHBD refers to situations where a decision is made to withdraw a ventilator wait for the heart to stop cardiac death and then rapidly remove the person s organs before he or she deteriorates Uncontrolled NHBD refers to situations where a person suddenly dies and cannot be resuscitated In uncontrolled NHBD tubes are then inserted into the donor and cold preservation fluid is instilled to preserve the organs until transplantation Since such cases occur in an emergency situation this method of preserving organs also gives time to notify family members and obtain consent for the donation While legal in a few states the uncontrolled NHBD procedure is not often done due to cost technical difficulties and public resistance to starting preservation of organs before family consent is obtained We will therefore only examine the more common controlled NHBD procedure Although controlled NHBD policies vary widely once the decision to withdraw treatment is reached medications such as blood thinners and blood vessel dilators are often started to preserve the potential transplant organs NHBD supporters deny that such medications harm a potential donor but even an accidental administration of such medications to an average patient would be considered a serious reportable mistake When the ventilator is removed doctors wait for the patient s heart and breathing to stop declare cardiac death either immediately or after a waiting period of two to five minutes and then begin to take the organs in an operating room The legal standard of irreversible cardiac death is considered met because the decision has already been made not to restart the heart by cardiopulmonary resuscitation CPR and the heart is not expected to resume beating on its own Even though brain death is not a requirement in NHBD some NHBD supporters maintain that the brain death soon follows when the heart and breathing stop despite animal studies and CPR experience itself which show that even complete recovery of consciousness is possible after several minutes if resuscitative efforts are successful If as sometimes happens the potential NHBD patient does not stop breathing as expected and continues to have a heartbeat doctors usually wait an hour before canceling the transplant Since the decision to withdraw treatment has already been made the patient is then returned to the hospital room to eventually die without treatment being resumed Reports and articles supporting NHBD dismiss the withdrawal of the ventilator as an ethical problem because the withdrawal decision is supposed to be made before and independently of the NHBD decision This crucial first step in NHBD may deserve the most scrutiny however As the 2000 Institute of Medicine report states controlled non heart beating organ donation cannot take place unless life sustaining treatment is stopped 5 Thus innovations such as the living will and other advance directives as well as right to die court cases allowing the withdrawal of even basic treatment from non dying people were crucial to the development of NHBD The 1997 IOM report describes the potential non heart beating donor as follows These patients are either competent with intolerable quality of life or incompetent but not brain dead because of severe generally neurological illness or injury with an extremely poor prognosis as to survival or any meaningful functional status Note that this description includes not only patients on a ventilator who are judged to have little potential for a meaningful life but also fully conscious people who find their lives intolerable Indeed one of the first patients considered for NHBD was a conscious 48 year old woman with multiple sclerosis who asked to have her ventilator stopped and her organs donated 6 This particular patient unexpectedly continued to breathe after the ventilator was removed and by the time she actually died her organs were felt to have deteriorated too much for transplantation Still the 2000 IOM report acknowledged that such requests still occur and found no agreement among their ethicists and doctors as to whether such conscious terminally ill or disabled people should be granted such requests This intersection of the right to die and organ donation is condemned by many people including disability advocate Diane Coleman who has predicted that there is going to be growing pressure on disabled people who are dependent on life support to pull the plug Allowing them to believe that they are being altruistic by doing so through organ donation will only increase the pressure on disabled people to choose to die in the belief that by giving their organs up their lives can have some meaning The danger is especially acute for people who are newly disabled many of whom believe falsely that their lives can never be worth living 7 In the case of the incompetent unconscious or otherwise unable to make medical decisions patient there are other serious ethical concerns about NHBD including what and who determines a meaningful functional status for such a vulnerable patient Although supporters of NHBD insist that withdrawal of ventilators is legally and ethically allowable because such patients are hopeless these decisions are routinely being made because of potential quality of life concerns rather than ability to survive NHBD policies also avoid the question of how quickly the determination of such hopelessness is being made This can have dire consequences for the NHBD patient For example in a January 2000 Nursing Library journal article8 nurse Myra Popernack describes the case of a 16 year old car accident victim who two days after his accident was evaluated as a potential organ donor The doctor told the family that their son was not brain dead but would remain in a vegetative state and probably could not survive without continued life support even though the so called permanent vegetative state is supposed to be determined only after at least three months The family agreed to withdraw the ventilator and have a non heart beating organ donation In this case the young man unexpectedly continued breathing after the ventilator was withdrawn and the transplantation procedure was canceled He was returned to his room where no treatment was resumed except for pain medication and of course he eventually died Ironically the family was so upset by all this that they refused to even donate tissues like corneas and bones after their son died Despite this outcome the nurse author was still enthusiastic about NHBD This case is not unusual and it should raise concerns about denying such patients even a chance for recovery For instance I have been involved in a similar case where a chaplain in a Catholic hospital asked the mother of a teenage accident victim about organ donation shortly after her daughter was injured The mother was horrified and refused Her daughter was able to get off the ventilator and breathe on her own a few days later Although this young girl is still disabled she has defied the doctor s early prognosis that she would be a vegetable Contrary to many people s perceptions a ventilator is most often a short term therapy used to support a patient s breathing during a crisis until he or she can resume breathing without assistance In the past traditional ethics have allowed for the withdrawal or withholding of any treatment if that treatment was futile in terms of survival or excessively burdensome to the patient However that principle has become so corrupted that even such basic care or treatment such as food water and crucial medications like insulin or heart medicine are now being withdrawn to make sure a person dies sooner rather than later or does not continue to live with a diminished quality of life In cases of severe head injuries strokes or other critical conditions that can qualify a patient for NHBD it is virtually impossible at the beginning to accurately predict whether the patient will die or what level of recovery he or she may

    Original URL path: http://www.chninternational.com/Should%20we%20be%20dying%20to%20donate.html (2016-02-17)
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