Brain Death: Legal Obligations and the Courts
Brain Death: Legal Obligations and the Courts
As described in the last section, most legal developments concerning brain death have been legislative and regulatory to date. But there has also been significant judicial activity. Court cases have taken five basic forms: (1) families seeking physiological support after brain death, (2) families seeking damages for intentionally premature brain death, (3) families seeking damages for negligently premature brain death, (4) families seeking damages for emotional distress, and (5) pregnancy limitations on brain death.
Families regularly bring lawsuits seeking injunctions mandating continued physiological support. But courts almost never grant permanent injunctions. Instead, more commonly, courts grant only temporary restraining orders that preserve the status quo until more evidence can be gathered. In some of these cases, the family has religious objections, or just distrusts the diagnosis. Two recent cases, both involving children, serve as examples.
Jahi McMath (Oakland Children's Hospital, California). In December 2013, a 13-year-old Oakland, California child (Jahi McMath) suffered from respiratory complications following a tonsillectomy and adenoidectomy. The hospital claimed that Jahi McMath was legally dead after two neurologic assessments by its medical staff. As the child was no longer living, the hospital maintained that it was no longer obligated to continue providing medical care at the family's request. The family claimed that their child was not dead because she had a continually beating heart and was moving in response to touch. They demanded that the hospital continue to provide medical care, including ventilatory support, in hopes that she might still recover.
Some 22 days after the original diagnosis of brain death, the Alameda County Superior Court announced that the family and hospital had come to a partial agreement. The agreement specified that an outside medical team could remove Jahi McMath from the hospital and that her mother would take full responsibility for her body during its relocation to another facility. In early January 2014, the McMath family removed Jahi's body from the hospital to a facility in New Jersey. The family is reported to be seeking to revoke Jahi's California death certificate, so that Jahi will qualify for medical benefits.
Issac Lopez (Kosair Children's Hospital, Kentucky). On June 29, 2014, 2-month old Issac Lopez presented to the emergency department at a Louisville, Kentucky hospital with a skull fracture, rib fractures, respiratory failure, cardiac arrest, and blood and fluid pooling around his brain. Issac's father was arrested for child abuse after admitting to having hit Issac's head against the bathtub. Issac was admitted to the pediatric intensive care unit where the attending physician diagnosed Issac with total brain failure.
At the family's request, a second exam to confirm brain death was deferred for 48 hours to allow extended family members to arrive at the hospital. Two repeat examinations confirmed total brain failure. But the family did not accept the diagnosis. Issac's mother then obtained a temporary restraining order. (In light of the pending criminal charges, Issac's father suffered a material conflict of interest in making medical decisions for Issac. His objection to stopping physiological support was impacted by his desire to avoid homicide charges.) The hospital then filed its own separate action asking the court to allow the removal of physiological support given that Issac was dead. Two additional examinations (one by the family's independent medical expert) also confirmed total brain failure. At this point, there was no longer a factual dispute that Issac's condition met the criteria for brain death.
Still, Issac's mother and a court-appointed guardian argued that the hospital could not stop Issac's physiological support because parents have a constitutional right to make medical decisions for their children. They argued that because Issac's parents had not had those rights terminated, they possessed sole decision making authority with respect to Issac's medical care.
The court rejected this position stating that "with death, no parental decision making survives (save decisions regarding burial)." Instead, the court found that because the criteria for brain death were met, Issac was "legally dead" and therefore, the hospital had "no legal obligation to artificially maintain respiration, circulation or to render any other medical intervention or treatment."
One alarming allegation brought before the courts is that clinicians intentionally and deliberately confirm death by neurologic criteria before those criteria are actually met. The case below serves as an illustration.
Gregory Jacobs v. CORE (Erie, Pennsylvania). In 2007, a high school student sustained head injuries while on a school ski trip. In a federal lawsuit filed against the hospital and the area organ procurement organization, the boy's parents alleged that they were asked to consent to organ donation even though death had not been determined and was not even imminent. Their claim included that had he been properly treated rather than "killed for his organs," he would have had a significant chance of recovery. Claims for battery, fraudulent misrepresentation, negligent misrepresentation, and medical malpractice were asserted. In late 2012, the parties settled these claims for over $1 million.
Although cases of intentionally and deliberately premature brain death are the most alarming, also concerning are those cases alleging negligently premature brain death. The case below serves as an example of this concern.
St. Joseph's Hospital (Syracuse, New York). In 2009, clinicians at a Syracuse hospital declared Colleen Burns dead following a drug overdose. Despite several signs of responsiveness to stimuli, the hospital continued to prepare her for organ procurement. Then, just as surgery was about to commence, Burns opened her eyes in the operating room. The surgery was immediately canceled and Burns was released 2 weeks later. In 2013, the New York Department of Health fined the hospital $6,000 for improperly implementing brain death protocols. In addition, the Centers for Medicare and Medicaid Services (CMS) sanctioned the hospital for failing to undertake an "intensive and critical review of the event."
In addition to court cases that seek continued physiological support and those requesting damages for premature brain death, there are still others seeking emotional distress damages. In these cases, families allege that clinicians were insensitive or outrageous in how they treated or communicated with the family of the patient after brain death. The case below serves to illustrate this concern.
Morgan Westhoff (Oakland Children's Hospital, California). In January 2013, 21-month-old Morgan Westhoff died at Oakland Children's Hospital after alleged malpractice in repairing a blood vessel birth defect. Morgan's parents did not dispute the brain death diagnosis. But they did state concern for the hospital's management following their daughter's diagnosis. First, the hospital had apparently lied about an autopsy, leaving the Westhoffs in "hours of cruel and unjust agony" as they waited with their daughter's body for the coroner to arrive. Second, the family felt "betrayed, violated, and lost" when they learned no autopsy was ever conducted. Third, the hospital pressured the family with "multiple aggressive requests" to donate Morgan's organs. Fourth, the hospital sent repeated fundraising solicitations and surveys. A lawsuit was then filed for negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation. A hearing before the court is still pending as of the date of this writing.
Despite a general trend in the law allowing for maternal autonomy surrounding decisions about their health along with precedence providing step-by-step guidance as to how to decide on termination of medical treatment, many states continue to maintain pregnancy exclusions within their advance directive statutes. Currently, states are categorized into five classifications depending on their approach to the impact of pregnancy on life-sustaining treatment:
One recent case illustrates the application of an AD statute pregnancy clause to a woman after brain death.
Muñoz v. John Peter Smith Hospital (Fort Worth, Texas). On November 26, 2013 at 2:00 am, Marlise Muñoz, a 33-year-old woman pregnant with her 14-week-old fetus, was found unconscious on her kitchen floor, where she had apparently collapsed almost 1 hour prior. She was rushed to John Peter Smith Hospital in Fort Worth, Texas, where she was intubated and ventilated and managed in the intensive care unit. She was soon pronounced brain dead. Accordingly, her family (including her husband and her parents) requested that life support measures be discontinued. Although Marlise had not left any written directives regarding end-of-life care, according to her husband, she had previously verbalized that "she did not want to have machines keep her body alive." Officials at the hospital, however, refused to withdraw life support, citing a Texas state law requiring them to maintain life-sustaining treatment for a pregnant patient.
On January 24, 2014, almost 2 months after suffering her fatal event, State District Judge R.H. Wallace held that the statute concerning "life-sustaining treatment" did not apply to a patient who was dead. The judge ordered the hospital to terminate Muñoz's cardiopulmonary support. In the end, the hospital acknowledged that Muñoz had been brain dead since November 28, 2013 and that her fetus was not viable.
Court Activity
As described in the last section, most legal developments concerning brain death have been legislative and regulatory to date. But there has also been significant judicial activity. Court cases have taken five basic forms: (1) families seeking physiological support after brain death, (2) families seeking damages for intentionally premature brain death, (3) families seeking damages for negligently premature brain death, (4) families seeking damages for emotional distress, and (5) pregnancy limitations on brain death.
Families Seeking Physiological Support after Brain Death
Families regularly bring lawsuits seeking injunctions mandating continued physiological support. But courts almost never grant permanent injunctions. Instead, more commonly, courts grant only temporary restraining orders that preserve the status quo until more evidence can be gathered. In some of these cases, the family has religious objections, or just distrusts the diagnosis. Two recent cases, both involving children, serve as examples.
Jahi McMath (Oakland Children's Hospital, California). In December 2013, a 13-year-old Oakland, California child (Jahi McMath) suffered from respiratory complications following a tonsillectomy and adenoidectomy. The hospital claimed that Jahi McMath was legally dead after two neurologic assessments by its medical staff. As the child was no longer living, the hospital maintained that it was no longer obligated to continue providing medical care at the family's request. The family claimed that their child was not dead because she had a continually beating heart and was moving in response to touch. They demanded that the hospital continue to provide medical care, including ventilatory support, in hopes that she might still recover.
Some 22 days after the original diagnosis of brain death, the Alameda County Superior Court announced that the family and hospital had come to a partial agreement. The agreement specified that an outside medical team could remove Jahi McMath from the hospital and that her mother would take full responsibility for her body during its relocation to another facility. In early January 2014, the McMath family removed Jahi's body from the hospital to a facility in New Jersey. The family is reported to be seeking to revoke Jahi's California death certificate, so that Jahi will qualify for medical benefits.
Issac Lopez (Kosair Children's Hospital, Kentucky). On June 29, 2014, 2-month old Issac Lopez presented to the emergency department at a Louisville, Kentucky hospital with a skull fracture, rib fractures, respiratory failure, cardiac arrest, and blood and fluid pooling around his brain. Issac's father was arrested for child abuse after admitting to having hit Issac's head against the bathtub. Issac was admitted to the pediatric intensive care unit where the attending physician diagnosed Issac with total brain failure.
At the family's request, a second exam to confirm brain death was deferred for 48 hours to allow extended family members to arrive at the hospital. Two repeat examinations confirmed total brain failure. But the family did not accept the diagnosis. Issac's mother then obtained a temporary restraining order. (In light of the pending criminal charges, Issac's father suffered a material conflict of interest in making medical decisions for Issac. His objection to stopping physiological support was impacted by his desire to avoid homicide charges.) The hospital then filed its own separate action asking the court to allow the removal of physiological support given that Issac was dead. Two additional examinations (one by the family's independent medical expert) also confirmed total brain failure. At this point, there was no longer a factual dispute that Issac's condition met the criteria for brain death.
Still, Issac's mother and a court-appointed guardian argued that the hospital could not stop Issac's physiological support because parents have a constitutional right to make medical decisions for their children. They argued that because Issac's parents had not had those rights terminated, they possessed sole decision making authority with respect to Issac's medical care.
The court rejected this position stating that "with death, no parental decision making survives (save decisions regarding burial)." Instead, the court found that because the criteria for brain death were met, Issac was "legally dead" and therefore, the hospital had "no legal obligation to artificially maintain respiration, circulation or to render any other medical intervention or treatment."
Cases Seeking Damages for Intentionally Premature Brain Death
One alarming allegation brought before the courts is that clinicians intentionally and deliberately confirm death by neurologic criteria before those criteria are actually met. The case below serves as an illustration.
Gregory Jacobs v. CORE (Erie, Pennsylvania). In 2007, a high school student sustained head injuries while on a school ski trip. In a federal lawsuit filed against the hospital and the area organ procurement organization, the boy's parents alleged that they were asked to consent to organ donation even though death had not been determined and was not even imminent. Their claim included that had he been properly treated rather than "killed for his organs," he would have had a significant chance of recovery. Claims for battery, fraudulent misrepresentation, negligent misrepresentation, and medical malpractice were asserted. In late 2012, the parties settled these claims for over $1 million.
Cases Seeking Damages for Negligently Premature Brain Death
Although cases of intentionally and deliberately premature brain death are the most alarming, also concerning are those cases alleging negligently premature brain death. The case below serves as an example of this concern.
St. Joseph's Hospital (Syracuse, New York). In 2009, clinicians at a Syracuse hospital declared Colleen Burns dead following a drug overdose. Despite several signs of responsiveness to stimuli, the hospital continued to prepare her for organ procurement. Then, just as surgery was about to commence, Burns opened her eyes in the operating room. The surgery was immediately canceled and Burns was released 2 weeks later. In 2013, the New York Department of Health fined the hospital $6,000 for improperly implementing brain death protocols. In addition, the Centers for Medicare and Medicaid Services (CMS) sanctioned the hospital for failing to undertake an "intensive and critical review of the event."
Cases Seeking Damages for Emotional Distress
In addition to court cases that seek continued physiological support and those requesting damages for premature brain death, there are still others seeking emotional distress damages. In these cases, families allege that clinicians were insensitive or outrageous in how they treated or communicated with the family of the patient after brain death. The case below serves to illustrate this concern.
Morgan Westhoff (Oakland Children's Hospital, California). In January 2013, 21-month-old Morgan Westhoff died at Oakland Children's Hospital after alleged malpractice in repairing a blood vessel birth defect. Morgan's parents did not dispute the brain death diagnosis. But they did state concern for the hospital's management following their daughter's diagnosis. First, the hospital had apparently lied about an autopsy, leaving the Westhoffs in "hours of cruel and unjust agony" as they waited with their daughter's body for the coroner to arrive. Second, the family felt "betrayed, violated, and lost" when they learned no autopsy was ever conducted. Third, the hospital pressured the family with "multiple aggressive requests" to donate Morgan's organs. Fourth, the hospital sent repeated fundraising solicitations and surveys. A lawsuit was then filed for negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation. A hearing before the court is still pending as of the date of this writing.
Pregnancy Limitations on Brain Death
Despite a general trend in the law allowing for maternal autonomy surrounding decisions about their health along with precedence providing step-by-step guidance as to how to decide on termination of medical treatment, many states continue to maintain pregnancy exclusions within their advance directive statutes. Currently, states are categorized into five classifications depending on their approach to the impact of pregnancy on life-sustaining treatment:
Law automatically invalidates the advance directive (AD) of a woman when she is pregnant.
Law contains restrictions similar to the Uniform Rights of the Terminally Ill Act (URTIA), which requires that a pregnant woman be provided with "life sustaining treatment" if it is "probable" that the fetus will reach the point of "live birth" regardless of a woman's express wishes to the contrary.
Law considers fetal viability in determining enforceability of the AD.
Law allows for writing of specific treatments in the AD that the pregnant woman would accept.
Law is silent on the impact of pregnancy on the AD.
One recent case illustrates the application of an AD statute pregnancy clause to a woman after brain death.
Muñoz v. John Peter Smith Hospital (Fort Worth, Texas). On November 26, 2013 at 2:00 am, Marlise Muñoz, a 33-year-old woman pregnant with her 14-week-old fetus, was found unconscious on her kitchen floor, where she had apparently collapsed almost 1 hour prior. She was rushed to John Peter Smith Hospital in Fort Worth, Texas, where she was intubated and ventilated and managed in the intensive care unit. She was soon pronounced brain dead. Accordingly, her family (including her husband and her parents) requested that life support measures be discontinued. Although Marlise had not left any written directives regarding end-of-life care, according to her husband, she had previously verbalized that "she did not want to have machines keep her body alive." Officials at the hospital, however, refused to withdraw life support, citing a Texas state law requiring them to maintain life-sustaining treatment for a pregnant patient.
On January 24, 2014, almost 2 months after suffering her fatal event, State District Judge R.H. Wallace held that the statute concerning "life-sustaining treatment" did not apply to a patient who was dead. The judge ordered the hospital to terminate Muñoz's cardiopulmonary support. In the end, the hospital acknowledged that Muñoz had been brain dead since November 28, 2013 and that her fetus was not viable.
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