McGregor, Texas, McGinley Memorial Public Library Books and Friends: The Search for a New Definition of Brain Death

Does Brain Death
Need to be Redefined?

Image result for Brain Death Testing

Updated July 26, 2017

Evelyn Smith, MS in Library Science, University of North Texas (2012)

The Lazarus phenomenon, or the Return of Delayed Spontaneous Circulation (ROSC) within ten minutes after medical personnel successfully perform cardiopulmonary resuscitation, means that medical authorities now recommend delaying the pronouncement of death until ten minutes after the patient’s heart has stopped beating. Authorities, however, now recognize that death is not an event but a process in which organs sustaining life fail. Even so, traditionally the absence of a beating heart and respiration signal a patient’s death (Adhiyaman, 2007, December, para. 2, 7, &22-23). All the same, some critics of this traditional definition of death hold out hope for grieving families--in Jahi McMath's case after several years. Nevertheless, most families take into account the "quality of life"--or lack thereof-- that the dead (or dying) patient will have when deciding to pull the plug.

See:

Adhiyaman, Vedamurthy, Adhiyaman, & Sundaram, Radha. (2007, Dec) The Lazarus phenomenon. Journal of the Royal Society of Medicine. 199 (12), 552-557. doi: 10.1258/jrsm.100.12.552

Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2121643/

References

Ecker, Jeffrey, L. (2014, February 5). Death in pregnancy—an American tragedy. Perspective. The New England Journal of Medicine, p. 1,400,969. doi: 10.1056/NEJMp1400969. Retrieved from http://www.nejm.org/doi/full/10.1056/NEJMp1400969?query=featured_home

Magnus, David C., Wilfond, Benjamin, & Caplan, Arthur L. (2014, February 5). Accepting brain death. Perspective. The New England Journal of Medicine, p. 1,400,930. doi: 10.1056/NEJMp1400930. Retrieved from http://www.nejm.org/doi/full/10.1056/NEJMp1400930?query=featured_home

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Points of View:

New England Journal

of Medicine’s Perspective

Cook, Michael. (2014, February 8). We must stand firm on brain-death standard, says NEJM Bio Edge. Retrieved from http://www.bioedge.org/index.php/bioethics/bioethics_article/10844

Two recent controversies over brain-dead patients—the cases of Marlise Muñoz and Jahi McMath—“have obviously flustered some medical ethicists”. Writing in response to arguments made on behalf of these patients, a New England Journal of Medicine article, authored by David C. Magnus, Benjamin S. Wilfond, and Art Caplan contend that medicine must maintain the current definition that equates brain death with death (Cook, 2014, February 8, para 1-3).

“Too much is a stake” not to insist that law and medicine “must draw a line at brain death” as the divide between life and death since this demarcation is a “highly significant social boundary” that bequeaths the individual with constitutional rights and legal entitlements and benefits as well as determining when wills go into effect. Therefore, public policy necessitates agreed-on criteria, protocols, and tests to determine when death occurs instead of allowing families to determine this matter (Cook, 2014, February 8, para. 4-7).

Although physicians should allow the family “a few days for the truth to sink in”, a brain-dead person is a dead person” (Cook, 2014, February 8, para. 8). Interestingly enough, however, the authors frame their argument in terms of “good public policy” instead of proving that brain dead as dead. Thus, taking this argument to its logical conclusion, patients who exist in a permanent vegetative state can also be classified as dead (Cook, 2014, February 8, para. 9).

5 questions: David Magnus on understanding brain death. (2014, February 5). Stanford School of Medicine. Retrieved from http://med.stanford.edu/ism/2014/february/5q-magnus-0205.html

Giving family members the right to determine death would not only complicate organ donations from cadavers, but more importantly would “threaten to undermine decades of law, medicine and ethics,” according to the Director of the Stanford Center for Bioethics and the Thomas A. Raffin Professor in Medicine and Biomedical Ethics, David Magnus, who co-wrote an editorial on the topic for the online issue of the New England Journal of Medicine published February 5, 2014. Nevertheless, the case of Marlise Muñoz, whose body was kept connected to machines to keep her organs functioning in an attempt to rescue her fetus after she suffered a pulmonary embolism, and Jahi Mc Math, a 13-year-old girl, who was declared brain dead after a tonsillectomy, have prompted the public to question how much weight to place on the family’s wishes when deciding to withdraw life support. In the following article, Susan Ipaktchian asks Magnus to amplify his reasons as to why legislators shouldn’t amend the laws governing brain death to accommodate family members (Magnus, 2014, February 5, para. 1-4).

Q: What is "brain death," and how did the concept arise?

Magnus: “The complete and permanent loss of all . . . major integrative functions of the brain, including the cerebral cortex and the brain stem” defines brain death. After mechanical ventilation developed in 1968, an ad hoc committee at Harvard recommended that the loss of a working brain should determine death as opposed to an earlier understanding that death occurred with the loss of circulatory and respiratory functioning. Then in 1981, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research equated brain death with the loss of those organs whose tasks integrated the person and his or her body. Because neurologists adhere to very clear criteria to determine brain death, every state has recognized that brain death is death for decades (Magnus, 2014, February 5, para. 6).

Q: Why does it seem to be an open question as to when it's appropriate to declare brain death

Magnus defines “three challenging aspects to brain death”:

With mechanical ventilation, the bodies of brain dead patients have beating hearts and are warm to the touch, so some families have difficulty accepting that a loved one is really dead.

Because these families have trouble excepting this reality, physicians question how much wait time to give a family before neurologists conduct the tests that determine brain death or upon determining this has happened, how long to maintain life support after declaring death.

Some religions, most particularly Orthodox Jews, believe that only the stopping of a beating heart counts as death.

(Magnus, 2014, February 5, para. 7)

Q: You write that the definition of brain death has been formally adopted in 45 states and recognized in the rest through judicial orders, yet others say that New York and New Jersey take a family's religious beliefs into account. Can you clarify this confusion? Is brain death recognized in all 50 states?

Magnus: “Yes, brain death is death in all 50 states. Because of political lobbying by a vocal religious minority in these two states, brain death is occasionally handled differently in New York and New Jersey . . . ” When neurologists determine that these patients brain dead, officials wait three days before declaring a death (2014, February 5, para. 8).

Q: In the case of Jahi McMath, the argument is being made that families — not physicians — should be able to determine when their loved one should be considered dead. However, you write that the current "bright line" is needed in defining brain death. Why isn't it feasible to give families a greater say?

Magnus: The line between life and death determines exactly when an individual has full constitutional protection under the law, when heirs inherit, whether a husband or wife is still married, and if physicians are legally and ethically obligated to provide life-sustaining treatments. Defining brain death as death also allows for the legal procuring of organs, for if brain death no longer meant death, few organ transplants would be possible (Magnus, 2014, February 5, para. 9).

Just like the law arbitrarily states that children reach the legal status of adulthood in the United States at age 18, professional who can accurately determine the difference between life and death need to do so. The McMath’s family deserves sympathy, but “Jahi McMath will never recover — that is a medical certainty” (Magnus, 2014, February 5, para. 10).

Q: Is there something that hospitals and physicians should be doing that would help them better explain brain death to patients' families and deal with the ramifications?

Magnus: A family is more likely to accept that a loved one has died if health-care providers continue to successfully communicate with the family and win their trust (2014, February 5, para. 11). Likewise, medical personnel need to be more careful when using certain euphemisms, such as “life support” as opposed to “mechanical ventilation” since these terms imply that the patient is alive. Moreover, using the term “brain death” may sound as if he or she is not “truly” dead, so referring to the neurologically dead patient as “dead” clarifies the matter. The media should also understand that this controversy didn’t take place while McMath was dying but afterwards (Magnus, 2014, February 5, para. 12).

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An Annotated Bibliography

on Brain death

Austen, Ian. (2014, February 6; revised February 7). Brain-dead, a Canadian woman remains a silent partner awaiting birth. Americas. New York Times. Retrieved from

http://www.nytimes.com/2014/02/07/world/americas/brain-dead-a-canadian-woman-lives-on-as-a-silent-partner-awaiting-birth.html?ref=health

A series of blog posts by Dylan Benson*, the husband of a pregnant, brain-dead Canadian woman, is calling attention to her family’s decision to keep her on life support in Victoria, British Columbia, until her unborn child can be delivered (Austen, 2014, February 6, para. 1).

Robyn Benson’s situation, however, is different from that of Marlise Muñoz, a Texas woman whose husband and parents succeeded in obtaining a court order to end life support before her fetus was viable outside the womb. Mr. Benson supports efforts to keep his wife on life support since her fetus “remains healthy and growing” He began blogging to raise the money to care for extend his work leave beyond the 35 weeks of partial pay that Canada provides fathers as well as money to pay for the baby (Austen, 2014, February 6, para. 2-3).

Mr. Benson’s posts indicate that his wife suffered a fatal brain hemorrhage, and while the Vancouver Island Health Authority confirmed that there is an Intensive Care patient named Robyn Benson, but privacy laws prohibited her offering any details about Ms. Benson (Austen, 2014, February 6, para. 5).

Mr. Benson blogs that his wife’s family and friends would want her to be kept on life support until her child can live outside the womb, for “all think that my wife would want me to try” (Austen, 2014, February 6, para. 6). Accordingly, Mr. Benson plans to keep her on life support for 12 weeks after she was declared brain-dead, which would be when she reaches her 34th week of pregnancy—five weeks short of a full-term delivery (Austen 2014, February 6, para. 7; Whedon, October 28, para. 3).

While the father-to-be can’t wait for the birth of his son, he also knows that this birth will be bittersweet since the day after the baby is born, he will “have to say goodbye to Robyn”. Meanwhile because any rapid deterioration of her body could require an immediate delivery, Mr. Benson has taken a leave from his job (Austen, 2014, February 6, para. 8-9).

Mr. Benson had originally set a fund-raising target of $36,000 to match a year of his wife’s salary, but as of Thursday, his blog has raised $132,157 (Austen, 2014, February 6, para. 10).

About 30 babies have been delivered from posthumous mothers after physicians have declared these women neurologically dead, according to Jeffrey P. Spike, a professor at the McGovern Center for Humanities and Ethics at the University of Texas Health Science Center in Houston (Austen, 2014, February 6, para. 11).

Dr. Spike nevertheless cautioned that life support should physically sustain the mother “at least until the 34th week or\f pregnancy, although 38 weeks is preferable, to minimize delivery dangers and development problems for the child (Austen, 2014, February 6, para. 12).

Although a relatively young mother with a late-term pregnancy increases the chances that a brain-dead mother will successfully deliver a live infant, Professor Spike also believes that hospitals should comply with the family’s wishes as to whether or not they would wish the child to be born (Austen, 2014, February 6, para. 14).

Even so, keeping a brain-dead patient on a ventilator isn’t easy, for a complex mix of drugs and hormones must maintain blood pressure and keep the heart beating, explains the Director of the Neuroscience Intensive Care Unit at the Henry Ford Hospital in Detroit, Dr. Panayiotis N. Varelas, who also questioned the ethics (and economics) of “tying up often scarce intensive-care resources to sustain the bodies of brain-dead patients” (Austen, 2014, February 6, para. 16-17).

Note: Robyn Benson, the pregnant Victoria, British Columbia, brain dead woman kept on life-support for six weeks until she gave birth to her son by Caesarian section on Saturday, February 8, 2014, and died the following day, February 9, 2014. During the time she spent in Intensive Care, her husband, Dylan, kept a blog to raise enough money to ensure that he could stay home with his son for his first year of life while the fetus continued to grow instead his mother’s womb (Brain Dead B.C., 2014, February 10, para. 1-2 & 6).

References:

*Benson, Dylan. (2014, February 4). The story of Dylan and Iver. Iver. Retrieved from

http://www.misterbenson.com/

Dylan Benson blogs about keeping his brain dead wife on life support until his son can be born.

Brain dead B.C. woman dies after giving birth to son. (2014, February 10). News Canada Reuters. Toronto Sun. Retrieved from http://www.torontosun.com/2014/02/10/brain-dead-bc-woman-gives-birth-to-son-then-dies

Whedon, Sarah. (2013, October 28). New definitions of full-term pregnancy: Why they matter. RH Reality Check. Retrieved from http://rhrealitycheck.org/article/2013/10/28/new-definitions-of-full-term-pregnancy-why-they-matters/

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Baker, Max B. (2014, January 26). Life support removed from pregnant, brain-dead woman. Home > News > Local News > Fort Worth. Fort Worth Star Telegram. Retrieved from http://www.star-telegram.com/2014/01/25/5513457/hospital-discussing-future-of.html?rh=1

FORT WORTH —John Peter Smith personnel removed life support from Marlise Muñoz’s body and released her body to her husband Erick Muñoz at approximately 11:30 a.m. At this time, the Hospital also disclosed that it wouldn’t appeal a state district judge’s ruling to remove life support (Baker, 2014, January 26, para. 1-2).

Ms. Muñoz was 14-weeks pregnant when she at the hospital after suffering an embolism about ten weeks ago. On Friday, Judge R. H. Wallace ruled that the county-owned hospital must take the brain-dead woman off life support, which it had previously refused to do (Baker, 2014, January 26, para. 4).

Friday, Judge Wallace agreed with the argument set forth by the Muñoz family attorneys’ that a 1999 state law requiring that pregnant women by kept on life support didn’t apply to Ms. Muñoz because she is brain dead. Wallace then gave the county-owned hospital until 5 p.m. Monday to appeal his ruling. Defending the JPS Health Network’s refusal to remove life support, this morning a spokesman reminded the public that hospital administrators had followed the demands of a state statute since their role was “not to make nor contest law but to follow it” (Baker, 2014, January 26, para. 6 & 9).

Also on Friday, the Tarrant County District Attorney’s Office had argued that “it must balance the interests of the state to protect an unborn child against the wishes of the Muñoz family to end life support” (Baker, 2014, January 26, para. 10). Shortly before this, the Muñoz family had released a statement disclosing proof [most probably derived from a fetal ultrasound] that the fetus was “distinctly abnormal” since it suffered from deformed extremities, congenital hydrocephalus*, or water on the brain, and heart problems (Baker, 2014, January 26 para. 11).

After Erick Muñoz found his wife lying on the kitchen floor just before Thanksgiving, she was transported to John Peter Smith Hospital where physicians told him she was brain dead. H subsequently requested that doctors remove her life support since the couple had discussed what to do if she was unable to speak for herself. At this point, the hospital refused to comply with his wishes, citing a Texas law that forbids the removal of life support from a pregnant woman until her pregnancy is from 24 to 26 weeks along (Baker, 2014, January 26, para. 12-13).

At the time physicians disconnected Ms. Muñoz from life support, her pregnancy was about to enter its 23rd week (Baker, 2014, January 26, para. 14). When Mr. Muñoz sued JPS, however, his attorneys argued that the hospital didn’t recognize that his wife was a clinically-dead person rather than a pregnant patient, although the hospital acknowledged that Ms. Muñoz was brain dead in court documents (Baker, 2014, January 26, para. 15-16).

In defending the hospital’s actions, Tarrant County Assistant District Attorney Larry Thompson argued that “Texas legislators have demonstrated a commitment to protecting the unborn by including in laws that a human being is alive at every stage of gestation” (Baker, 2014, January 26, para. 17). The Legislature has also passed the Woman’s Right to Know Act, noting that medical evidence shows that an unborn child can feel pain by 20 weeks after fertilization (Baker, 2014, January 26, para. 18).

Bernat J. L. (2009). Contemporary controversies in the definition of death. Progress in Brain Research,177: 21-31. [Abstract]. doi: 10.1016/S0079-6123(09)17703-8. PMC. U.S. National Library of Medicine. National Institutes of Health. Retrieved from http://www.ncbi.nlm.nih.gov/pubmed/19818892\

Physicians determine death in two ways: (1) as the irreversible ending or all brain functions or (2) showing that breathing and heartbeat have permanently stopped. However, over the last 40 years, brain death, or the loss of all critical functions of the brain, has universally become the accepted as a sign of death among physicians. Ordinarily, the greatest area of controversy has been the acceptance of circulatory-respiratory tests to determine death to clear the organs for possible transplant. This declaration of death, in turn, is valid because it results in the destruction of the brain and therefore doesn’t violate dead donor protocols.

Carey, Benedict and Grady, Denise. (2014, January 9). At issue in 2 wrenching cases: What to do after the brain dies. Health. New York Times. Retrieved from http://www.nytimes.com/2014/01/10/health/the-science-behind-brain-death.html?hpw&rref=health&_r=0

Although the parents of Marlise Muñoz of Fort Worth, Texas, are fighting to take their brain-dead pregnant daughter off a ventilator and the parents of Jahi McMath of Oakland, California, insist that the brain-dead teenager should continue to be connected to a ventilator, both families struggled to cope with a diagnosis that doesn't match their wishes as to what they want done. A loved one has been declared brain-dead, and subsequently hospital officials' actions have run counter to the family’s wishes for treatment (Carey, 2014, January 9, para. 1-3).

Past cases, like those of Karen Ann Quinlan, Nancy Cruzan, or Terri Schiavo, involved patients in a vegetative state who could breathe without a ventilator, according to Dr. Joseph J. Fins, Director of Medical Ethics at New York-Presbyterian/Weill Cornell Hospital. By way of contrast, the brain dead patient can't breath on his or her own, and so he or she is legally dead in all 50 states, even though in New York and New Jersey, hospitals must comply with the family’s religious and moral views when it comes to keeping the ventilator running. In California and Texas, however, hospitals do not legally need to consult with the family before deciding how and when to discontinue any heroic measures (Carey, 2014, January 9, para. 4-5).

Neurologists at Children’s Hospital in Oakland pronounced McMath brain dead on December 12th after complications resulted from surgery for sleep apnea resulted in a sudden and uncontrollable loss of blood on December 9th. John Peter Smith Hospital officials in Fort Worth similarly declared Muñoz, 33, brain dead after the 14-week pregnant woman collapsed from a blood clot. Citing Texas law, they refused to remove her from a ventilator since it would harm her now 20th-week old fetus (Carey, 2014, January 9, para. 6) [Editor's Note: An unborn child is referred to as a fetus from the second month after conception until birth; however, babies don't have much chance of survival outside the womb before the pregnancy is 25 weeks along.]

Both patients’ hearts will continue beating for hours or days with the help of a ventilator; furthermore, with the most aggressive treatment, they might possibly beat for months after brain death as the body deteriorates, depending upon the patient’s health and the measures used to preserve the body (Carey, 2014, January 9, para. 7). Thus, a ventilator saved Muñoz’s fetus, who received a diminished flow of blood during the hour after she collapsed before being put on a ventilator while “a prolonged heartbeat has created a [false] perception of life” with McMath (Carey, 2014, January 9, para. 8-9).

While the heart with the help of technology is still beating, what makes these patients human “is gone", however, according to Dr. James L. Bernat, the Louis and Ruth Frank Professor of Neuroscience at Dartmouth’s Medical School, since life requires a functioning brain stem--the neural tissue at the base of the spinal cord that sustains muscle tone, metabolic equilibrium, and breathing (Carey, 2014, January 9, para. 10-11).

Differentiating between brain death, coma, and a vegetative state also requires expertise since some severely injured brains appear brain dead when they aren’t. For example, a coma may coincides with a time of recovery for the brain stem. Usually patients emerge from a coma after two or three weeks. But if they don’t, they may enter a vegetative state where the brain stem still functions, but the higher areas of the brain enter “a minimally conscious state” where the patient isn't predictably responsive (Carey, 2014, January 9, para. 12).

Four elements determine brain death:

Neurologists must rule out other possible diagnoses, including an unresponsive state, like anesthesia, a diabetic coma, or hypothermia (the lowering of body temperature);
They additionally determine that a brain injury has occurred;
They must test the cranial nerves—one that activates blinking in the eye, one that causes gagging in the throat, and one in the inner ear that allows the eyes to focus when the patient’s head moves. Each of these cranial nerves works the brain stem, so if touching the cornea with a Q-tip doesn’t cause the patient to blink, or if touching the back of the throat doesn’t result in the patient gagging, the brain stem probably isn’t working.
If these tests don’t elicit any response, neurologists will conduct an apnea test, allowing the carbon dioxide level to increase for about twenty minutes, and when it reaches a certain level, a patient with a functioning brain stem will start to wheeze; at which point, the physicians will immediately stop the test.

(Carey, 2014, January 9, para. 13-16)

A flat line on an Electroencephalography (EEG) indicates
brain death. (http://www.biogetic.com/research.html)

Although New York and New Jersey laws allow the continued use of oxygen administered through a ventilator to keep the heart beating for religious or moral reasons, “‘life support’ at this time is superfluous, if there is no life to support” (Carey, 2014, January 9, para. 17).” Consequently, Jahi McMath's family is hoping to reverse a decision medical science can't control while the Muñoz family is asking to reverse a legal decision that medical treatment can control (Carey, 2014, January 9, para. 18).

Cole, Diane. (2014, January 10). Brain Death Raises Tough Questions. News. National Geographic. Retrieved from http://news.nationalgeographic.com/news/2014/01/140110-brain-dead-jahi-mcmath-marlise-munoz/

Two tragic medical cases with the same outcome: Patients brain dead and on life support:

After complications from surgery, California physicians declared that 13-year-old Jahi McMath was brain dead whereupon her parents fought to keep her alive, arguing that her functioning [with the help of a ventilator] heart and lungs indicated she was still living.

In Texas, doctors declared Marlise Munoz, a 33 year-old pregnant woman, brain death, but she still remains on life support that her family wishes to end. However, the hospital refuses to do so, pointing to a Texas statue that prohibits the removal of life support from a pregnant mother of a still living fetus.

Since both these cases ask what does “brain death” mean, National Geographic has asked experts in neurology and biomedical ethics to define the term (Cole, 2014, January 10, para. 1-3).

What does it mean to be brain dead?

The neurological criteria of brain death is “the irreversible cessation of all activity in the cerebral hemispheres and the brain stem,” according to Robert Stevens, Associate Professor of Neuroscience Critical Care at Johns Hopkins University School of Medicine, while Richard R. Sharp, the Director of Biomedical Ethics at the Mayo Clinic, declares, “Brain dead is dead. . . from a medical and legal point of view” (Cole, 2014, January 10, para. 4-5).

Why is the term so confusing to so many people?

Brain death results when machines like ventilators continue to deliver oxygen to the lungs and keep the heart artificially pumping even after “devastating neurological injury” whereas before this modern technology developed, when the brain dead, the heart and lungs would stop as well. Therefore, because the heart is still beating, and the patient may still exhibit reflex movements in the hands or arms, family members may argue that the individual isn’t dead (Cole, 2014, January 10, para. 5-7).

What do you do to confirm brain death?

Physicians perform very specific neurological tests twice with six hours in between these two exams for adults and 24 hours between the exams for children to confirm brain death and to ensure that no reversible conditions exist (Cole, 2014, January 10, para. 8-9).

Can people recover from brain death? There are stories that claim such reverses.

Stevens explains, “Brain death recovery suggests a misdiagnosis. If you recovered, it was something else"-possibly a coma or vegetative state” (Cole, 2014, January 10, para. 10).

How do they differ?

In a coma, neurologists can elicit brain responses and detect a response to pain. The term vegetative state refers to a condition where the patient shows elements of arousal, but he or she doesn’t show any awareness of stimuli (Cole, 2014, January 10, para. 11).

Do you anticipate any developments dealing with brain death cases as a result of these two patients?

Physicians need to better explain what brain death means, explaining the situation and what needs to be done to the patient’s family “in clear and unambiguous terms”, according to Stevens. Cynda Rushton, Bunting Professor of Clinic Ethics at the Johns Hopkins Berman Institute of Bioethics, adds that “the medical community needs to pause and reflect on what we can learn-how to provide care that is both compassionate and respectful but also that clearly communicates the limits of what medicine can and cannot do” (Cole, 2014, January 10, para. 12-13).

Moreover, the McMath case indicates that hospitals need official policies in place, so they can address a family’s request for continued care after physicians have declared brain death, stating how much time the family might have to grieve or else find a long-term care facility (Cole, 2014, January 10, para. 14).

What can you say to grieving family members to explain what brain death means and to help them decide whether to continue or cease medical care?

Rushton notes that medical personnel should explain that in spite of the medical technology that exists, they weren't able to save the patient (Cole, 2014, January 10, para. 15).

Coulter, James. (2014, January 14). Jahi McMath is alive. American Thinker. Retrieved from http://www.americanthinker.com/2014/01/jahi_mcmath_is_alive.html

In an era of health-care rationing and fewer options in medical care, Jahi McMath’s case brings up numerous critical bioethical issues as evidenced by the timeline that preceded a declaration of brain death:

On December 9, 2013, the young teen experienced life-threatening bleeding following a tonsillectomy for sleep apnea that brought about cardiac arrest and severe brain damage.

On December 11, neurologists diagnosed her condition as consistent with brain death, and she was put on a ventilator whereupon Children’s Hospital and Medical Center of Oakland, California, sought the family’s permission to disconnect life support—a procedure that many Intensive Care Units follow if the patient won’t be an organ donor . If the patient’s family has agreed to donate a brain dead patient’s organs, the time when a physician completes the neurological exam is the patient’s declared time of death.

December 12, 2013, however, in McMath’s case was her official death, even though a ventilator continued to keep her heart beating.

Because McMath’s mother didn’t believe she was dead, however, she fought to continue life support, obtaining with the help of attorney Chris Dolan an injunction to continue it.

Then 25 days later, an ambulance transported McMath to a long-term care facility.

(Coulter, 2014, January 14, para. 1-5)

Thirty different criteria approved in the 1970s designate brain death, although the particulars differ from state to state and hospital to hospital. All of which, however, allow the cessation of brain activity rather than the cessation of cardiac activity to be the final criteria that determines death. By adopting this stance, surgeons can remove hearts from donors without being charged with homicide. Even so, even after a neurologist declares that a brain dead patient is dead, a brain dead person attached to a ventilator will excrete urine, bleed when cut, and have wounds that will heal. Moreover, pathologists don’t perform autopsies on the brain dead, and funeral directors won’t embalm them (Coulter, 2014, January 14, para. 6).

Some states [New York and New Jersey] also allow Orthodox Jewish, Eastern Orthodox Christians, or Japanese who follow Shintoism funeral and burial practices to only accept the cessation of a heart beat as the only criteria death, thus bringing up the possibility that if Jahi’s state of residence was New Jersey or New York, that she might still be legally alive since these states allow “personal religious beliefs” based only on cardio-respiratory criteria (Coulter, 2014, January 14, para. 7-8).

The case is also complicated by a California law that limits financial damages for the death of a minor to $250,000 while the state places no cap on the damages a family can collect for the care of a brain-damaged child, such as Rebecca Jimenez, whose family collected a multi-million dollar settlement from CHMC following a similar surgery to McMath’s in 2011 (Coulter, 2014, January 14, para. 9).

An already issued death certificate also hampered transfer to another facility, even though various California facilities accept pediatric ventilator patients. Furthermore, when the family sought to have a tracheostomy and stomach tube inserted, the CHMC declared that any further evaluation was unethical since hospital officials had already pronounced her death (Coulter, 2014, January 14, para. 10). The Terri Schiavo Foundation’s help in finding medical treatment as well as Attorney Chris Dolan’s persistence and the Oakland African-American community protests nevertheless ensured that she would continue to receive care (Coulter, 2014, January 14, para. 11).

In contrast to Jahi's situation another “brain dead” patient, Marlisa Muñoz, in Fort Worth Texas, currently being kept alive on life support. However, she is kept alive because Texas law requires hospital to provide medical care to a pregnant patient until her baby reaches viability (Coulter, 2014, January 14, para. 12). Not only does life support research on critically injured pregnant women distinguish between brain death and somatic death, even if brain death is diagnosed, the woman can’t be declared dead until the baby is delivered, the ventilator is turned off, and cardiac activity stops. In addition to being provided with a ventilator and an IV, equipment monitors and stabilizes her fluid, electrolyte, and blood gas status, and delivers nutrition support either by IV or stomach tube. Additionally, if necessary, hospital personnel administer antibiotics (Coulter, 2014, January 14, para.13).

All of which “brings into the question the quality of ‘life support’ Jahi received at Children’s Hospital after she had been ‘pronounced’ brain dead” since if a brain dead patient isn’t to be an organ donor, all therapeutic measures stop, and only the ventilator and IV keep going until the family gathers at the time hospital personnel turn off life support. But for those who believe in the finality of brain death, the actual death occurs when neurological exams confirm it (Coulter, 2014, January 14, para. 14).

Coulter thus questions what patients with traumatic head injury or cardiac arrest should receive until the diagnosis of brain death exists with absolute certainty or if the possibility exists that the patient will be transported to another facility to undergo additional treatment. For instance, McMath’s ICU physician opposed a tracheostomy and the insertion of a feeding tube just before her transfer to another institution (Coulter, 2014, January 14, para. 15).

When the McMath family brings a civil suit, Coulter argues that the CHRC violate Jahi’s civil rights when they denied her the right to be examined by physicians of her family’s choice or transfer to another facility. However, their most serious violation of her civil rights was to pronounce her dead shortly after she was diagnosed brain dead. When Dolan sought the necessary paper work from California’s Department of Vital Statistics, they responded that they had never issued a death certificate to a patient on a ventilator with a still beating heart (Coulter, 2014, January 14, para. 16).

Jahi McMath’s case thus raises all kinds of philosophical, theological, and medical questions:

When does true death occur?

When does the soul depart from the body?

When is a person not just "merely" dead, but "undeniably, reliably and most sincerely dead?"

(Coulter, 2014, January 14, para. 17)

It also influences the ethics of vital organ donation and the current practices of ICU care. Catholic theologians, for example, argue that the living receive the gift of life from the Creator, so it’s not up to a patient, or his or her medical power of attorney, to give it away, if this ends the individual’s life. John Paul II also held that society should support life from conception until natural death, which until the late 1960s meant when the heart stopped beating. Thus, physicians like Paul Byrne argue that brain death isn’t true death (Coulter, 2014, January 14, para. 18).

Coulter also applauds the Terri Schiavo Foundation’s ability to help patients with critical injury or serious brain trauma that medical procedures prematurely terminate. She believes that “persistent vegetative state” and “brain death” are terms invented to dehumanize patients to allow organ transplant and prevent the patient from receiving appropriate medical care and instead argues that accurate medical terms she describe the patient’s actual condition, and ICU physicians should understand that the premature removal of life support constitutes homicide (2014, January 14, para. 19-20).

Daum, Meghan. (2014, January 17). Jahi McMath situation highlights confusion over brain deaths, comas and vegetative states. News. Chicago Tribune. Retrieved from http://articles.chicagotribune.com/2014-01-17/news/ct-oped-daum-0117-20140117_1_brain-death-brain-dead-disservice

Daum suggests that “Jahi's saga gives rise to several conflicting strains of accusation” whereupon she casts blame on the McMath family and its supporters for vilifying the hospital, and their attorney, Christopher Dolan as “a shameless opportunist who'd stirred up a media circus” (2014, January 17, para. 2). Indeed, Daum emphasizes that this desire to blame is “an effort to cope with the terrifying randomness of a child dying under such circumstances. But the truth is that Jahi has been dead for more than a month now, and the time for subtlety is over. The situation, to put it bluntly, is a disgrace” (2014, January 17, para. 3-4).

Daum then parcels out criticism for the attorney, for enabling a distraught family’s delusions, the McMath family for maligning a hospital with “as-yet-unsubstantiated implications of poor treatment” and the media for not enlightening the public about the differences between brain death, comas, and vegetative states (2014, January 17, para. 5-6). She thus argues, “It's hard to say what's worse, the countless and continued uses of the misnomer ‘life support’ or the remarkable amount of exposure granted to ‘experts,’ many affiliated with radical religious groups, determined to cite a handful of ‘recovery from brain death’ cases that are really misdiagnoses of brain death” (Daum, 2014, January 17, para. 7).

Admittedly, the media’s coverage resulted from trying to provide a balanced story, but even so Daum argues, “This is no longer a story that requires balance” in a country where roughly 7,000 people die daily, many of them being declared dead after being taken off ventilators (2014, January 17, para. 8). Jahi’s family nevertheless believed they were different, Daum maintains, even though the hospital, even before the court order gave them more days to say goodbye than most family have, and a judge awarded the family the power and the burden it shouldn’t have to bear (Daum, 2014, January 17, para. 9-10). Daum thus concludes, that paradoxically it is this the McMath family who was ultimately mistreated by treating it as special, for death “is about as unspecial as it gets”, and “believing otherwise only prolongs the suffering” (2014, January 17, para. 11).

Dolan, Christopher. (2014, January 21). McMath attorney: Jahi's family aren't fools; they deserve better than ignorant attacks. Opinion. Los Angeles Times. Retrieved from http://www.latimes.com/opinion/commentary/la-oe-0121-dolan-jahi-mcmath-brain-death-20140121,0,5121800.story#axzz2r4vjD5D6

Christopher Dolan, Jahi McMath’s attorney, who has represented her pro bono starting from ten hours before the first order to turn off the ventilator, praises the courage of her mother, Nailah Winkfield, and wonders why self-righteous commentators who have no firsthand knowledge of the case take it upon themselves to pronounce what is best (Dolan, 2014, January 21, para. 1-3).

Dolan believes that most commentary has attacked the family’s beliefs as simplistic and uninformed because they haven’t accepted the physicians’ diagnosis. However, even though he acknowledges that a civil suit might be brought against the Oakland Children’s Hospital in the future, Dolan has a point when he asks, “If you were Jahi’s mother, would you want the doctors and hospital authorities you believed had contributed to—or even caused—your child to be declared ‘brain dead’ making final decisions about her?” (2014, January 21, para. 4).

Dolan points out that over his legal objections tactless hospital officials required Winkfield to go in person to the Alameda County Registrar of Births and Death to obtain a death certificate, so the family could have McMath transported to a long-term care facility. Moreover, the Alameda County coroner had to intervene for Winkfield to do this since McMath was still connected to the ventilator, and her heart was [and is] still beating (Dolan, 2014, January 21, para. 5).

The attorney also argues that those who criticize the McMath family’s decision to keep her connected to life support don’t understand that “brain death” is not a sufficient declaration of death in all fifty states. New Jersey and New York law, for example, specify that physicians should not make a declaration of death solely on the basis of a no longer functioning brain or brain stem if this would violate the religious or moral beliefs of the individual (Dolan, 2014, January 21, para. 5-6).

Therefore, Dolan explains that hospital officials have violated McMath’s constitutional rights, included the 1st amendment’s freedom of religion and the 4th and 14 amendments rights to privacy and personal liberty (Dolan, 2014, January 21, para 7). Additionally, he reasons that pro-choice abortion advocates should understand that when it comes to life or death decisions, state laws permit physicians to override a patient or his or her family’s personal beliefs whether-- or not [as in the Muñoz case]--heroic measures should be taken if the patient is in a vegetative or brain dead state or if the authorities disagree with what she wants when it comes to contraceptive and abortion rights (2014, January 21, para. 8).

Accordingly, Dolan notes that McMath’s mother has eloquently argued for continuing to keep McMath on life support, stating, “I've seen what medicine has done, now I want to see what God can do”(2014, January 21, para. 9-10). Finally, Dolan argues that those who share Winkfield’s faith shouldn’t ridicule her decision, “Jahi McMath’s family are brave, loving, honorable hardworking people. They are not fools. They know the odds. They want time, free from the threats of the hospital to pull the plug. They want Jahi to be somewhere where people care for her and do not call her ‘the body’” (2014, January 21, para. 11).

Fagel, Mari. (2014, January 24). How an outdated California law is impacting the Jahi McMath case. Politics. Huffington Post. Retrieved from http://www.huffingtonpost.com/mari-fagel/how-an-outdated-californi_b_4645768.html

After Jahi McMath was declared brain dead, the courts and the media argued over the definition of life and death. In the midst of this media circus, however, was an often unmentioned California law that shaped how the tragedy unfolded. Although privacy laws keep the public from knowing all the facts, Jahi apparently choked on her own blood whereupon her brain was deprived of oxygen for at least ten minutes, and a delay in the reopening of an airway left hospital administrators wondering if they would be sued for medical negligence (Fagel, 2014, January 24, para. 1-2).

In California the Medical Injury Compensation Reform Act (1975) places a medical cap of $250,000 on non-economic damages when a child dies because of medical negligence; however, if a minor, like McMath remains on a ventilator a jury could reward a multimillion-dollar verdict for economic damages. By way of contrast, if a reckless driver causes an accident or a pilot’s error crashes a plane, the jury can decide what believe is a fair amount to compensate a family for their pain and suffering (Fagel, 2014, January 24, para. 3-4).

Fagel cites an example of the unfairness of a law that sets an artificial cap on damages when the death of a child is a result of medical negligence. In 2003, a driver taking a large amount of prescription medications jumped a curb, killing 7-year-old Alana and 10-year-old Troy Pack. While the father, Bob Pack, wanted to hold the doctors for over prescribing medication to prevent similar instances in the future, California law placed a limit on the damages awarded, so attorneys decided that bringing a malpractice suit to trial wasn’t economically feasible (Fagel, 2014, January 24, para. 5-6).

Since attorneys for most medical malpractice cases take a percentage of the recovery they can win, this allows families who ordinarily can’t afford to hire a lawyer to do so. At the same time, however, this means that if a California family sues for damages for medical malpractice that results in the death of a child, unless the attorney and expert witnesses work pro bono, the family will only receive a very small percent of this amount--if any compensation at all--because attorney fees will cost $200,000, and even a single expert witness can cost up to $50,000 to review and testify for the claimants (Fagel, 2014, January 24, para. 7).

Consequently, Pack is sponsoring the Troy and Alana Patient Safety Act that will allow California voters to decide if they wish to raise the cap to one million dollars, thus adjusting it for inflation. Physicians would also need to submit to random drug and alcohol tests, and a statewide database would be created to track how may prescription medications had been prescribed for a patient (Fagel, 2014, January 24, para. 8).

Fagel argues that “adjusting or removing the cap would also get rid of potential conflict of interests hospitals face” when caring for minor patients. She further contends that the appearance of a possible financial motive is enough to break any trust that the parents of a minor might have in medical personnel. Although the public will never know the role that financial motivation played in the decision to take McMath off her ventilator, Fagel believes that its time to updated an outdated law (2014, January 24, para. 9-11).

Fermamdezjan, Manny. (2014, January 24). Judge orders hospital to remove pregnant woman from life support. New York Times. Retrieved from http://www.nytimes.com/2014/01/25/us/judge-orders-hospital-to-remove-life-support-from-pregnant-woman.html?_r=0

FORT WORTH — This afternoon, Judge R. H. Wallace, Jr. of the 96^th District Court of Tarrant County ruled that a Fort Worth hospital may not keep Marlise Muñoz, a 33 year-old, brain-dead pregnant woman on life support against her family’s wishes. Ruling that the Texas law that prohibits removing pregnant women from life support didn’t apply to Muñoz since she is dead, Judge Wallace, ordered doctors to remove her from a ventilator by 5 p.m. on Monday. This deadline not only grants the Muñoz family their first legal victory in three-month long struggle, but it also gives John Peter Smith Hospital time to file an appeal (Fermamdezjan, 2014, January 24, para. 1-4).

Hospital administrators are consulting with lawyers and appear to be considering an appeal, according to a spokeswoman. Additionally, they acknowledge that the Muñoz fetus is not viable since the “distinctly abnormal” fetus suffers from hydrocephalus, an accumulation of fluid in the brain cavity along with a possible heart problem (Fermamdezjan, 2014, January 24, para. 5-7).

Larry M. Thompson, the attorney for John Peter Smith Hospital, admitted at the Friday hearing that Ms. Muñoz met the clinical criteria for brain death two days after she was admitted, although he also argued that the law still applied to her: The Texas Penal Code’s definition of an individual holds that an unborn child is alive at every stage of gestation from fertilization to birth. Furthermore, the Texas Legislature last year banned abortions after 20 weeks of pregnancy based on the theory that fetus that old can feel pain (Fermamdezjan, 2014, January 24, para.8-11).

In papers presented the court, Thompson reasoned, “Given the strong interest of the Texas Legislature in protecting the life of unborn children, it is unlikely the Legislature contemplated only the welfare of the mother” (Fermamdezjan, 2014, January 24, para. 12).

Heather L. King, Mr. Muñoz’s lawyer, however, responded that Thompson’s argument “amounted to a sweeping public policy declaration with broad implications.” Therefore, extending Thompson’s deductions to their ultimate conclusion would mean that paramedics at crash scenes would have to give dying women pregnancy tests to ensure they were following the law.

Apologizing for phrasing her argument so crudely, King then told the judge that pregnant women “die every day,” and “When they die, their fetus dies with them. That is the way it’s always been, and the way it should be be” (Fermamdezjan, 2014, January 24, para. 13-14). In a statement found only in court papers, Erick Muñoz testified to how painful it was to watch his wife’s corpse deteriorate:

Over these past two months, nothing about my wife indicates she is alive . . . When I bend down to kiss her forehead, her usual scent is gone, replaced instead with what I can only describe as the smell of death. As a paramedic, I am very familiar with this smell, and I now recognize it when I kiss my wife. In addition, Marlise’s hands no longer naturally grip mine for an embrace. Her limbs have become so stiff and rigid due to her deteriorating condition that now, when I move her hands, her bones crack, and her legs are nothing more than dead weight.

(Fermamdezjan, 2014, January 24, para. 17-19)

At the conclusion of the hearing, Mr. Muñoz, 26, who had been sitting in a bench behind his lawyers, slumped in his seat and began weeping whereupon his relatives embraced him moments after Judge Wallace ruled on his case. Outside the court room, King explained, “There’s nothing happy about today. This was a sad situation all the way around. We are relieved that Erick Muñoz can now move forward with the process of burying his wife” (Fermamdezjan, 2014, January 24, para. 15).

Although Judge Wallace only ordered the hospital to pronounce Ms. Muñoz dead, Mr. Muñoz’s attorneys had asked him to declare the Texas law unconstitutional since it violated Ms. Muñoz’s rights under the14th Amendment to make medical decisions about her own body. But the judge refused to make no ruling on the law’s constitutionality, holding it didn’t apply to her (Fermamdezjan, 2014, January 24, para. 20-22).

Trained as a paramedic, Ms. Muñoz lived with her husband and their 15month-old son, Mateo, in nearby Haltom City where in the middle of the night of November 26, 2013, she collapsed from an apparent blood clot in her lungs on the kitchen floor where having stopped breathing she lay for possibly an hour or more. Even so, she was still alive when she arrived at John Peter Smith Hospital. Nevertheless, her husband’s lawyers contend that this hour without oxygen also harmed the fetus (Fermamdezjan, 2014, January 24, para. 23-25).

Fernandezjan, Manny. (2014, January 26). Texas hospital takes pregnant woman off life support. U.S. New York Times. Retrieved from http://www.nytimes.com/2014/01/27/us/texas-hospital-to-end-life-support-for-pregnant-brain-dead-woman.html?hp&_r=0

HOUSTON — A two-month ethical and legal fight as to whether to remove a pregnant, brain-dead woman, Marlise Muñoz, from life support ended when she was disconnected from life support late this morning whereupon John Peter Smith Hospital in Fort Worth, Texas, released her body to her husband, Erick. Mr. Muñoz’s as well as Marlise’s parents, Lynne and Ernest Machado, had argued that after suffering an apparent blood clot in her lungs, she had died shortly after arriving at the hospital in late November. Yesterday, the hospital agreed to follow a judge’s order to remove Ms. Muñoz from mechanical ventilator and other machines, thus ending this particular skirmish in the fight over abortion, end-of-life care, and a Texas statue that prohibited removing life support from a pregnant woman (Fernandezjan, 2014, January 26, para. 1-3).

On Sunday, J.P.S. Health Network defended its handling of the case, “J.P.S. Health Network has followed what we believed were the demands of a state statute . . . From the onset, J.P.S. has said its role was not to make nor contest law, but to follow it” (Fernandezjan, 2014, January 26, para. 5-7).

On Friday, Judge R. H. Wallace, Jr, of the 96^th District Court in Tarrant County, ordered the hospital to remove Ms. Muñoz, 33, from life-support by no later than 5 p.m. Monday. Judge Wallace ruled that a Texas statue requiring “A person may not withdraw or withhold life-sustaining treatment . . . from a pregnant patient” (didn’t apply to Ms. Muñoz because she was brain dead, thus siding with the Muñoz’s family, whose attorneys had argued that JPS was misinterpreting state law, so the court should immediately order her removal from life support (Fernandezjan, 2014, January 26, para. 8-10 & 20).

The hospital acknowledged that Ms. Muñoz met the criteria for brain death two days after she arrived in ICU. Nevertheless, it defended the decision to keep her on life support when it insisted that it was following a law that expressed a “commitment to the life and health of unborn children”, even though she was dead. Tarrant County District Attorney Larry M. Thompson noted that the state had a compelling interest in protecting a fetus, pointing to a section of the Texas Penal Code that stated that a person may commit criminal homicide by causing the death of a fetus. His statement also emphasized that the county hospital complied with a bill that banned abortions after 20 weeks of pregnancy since research had posited that a fetus is capable of feeling pain at this time (Fernandezjan, 2014, January 26, para. 11-13).

In contrast to the Tarrant County District Attorney’s line of reasoning, Mr. Muñoz’s attorneys took the state’s argument to a reductio ad absurdum *concluding, arguing that if this was true hospitals “would have to build intensive-care units specifically for pregnant patients on life support” (Fernandezjan, 2014, January 26, para. 14). Since the 14-week pregnant woman had arrived at JPS on November 26, 2013, she has been cared for in the hospital’s intensive care unit. When she was removed from life support, she was 22 weeks into her pregnancy. However, her fetus, whose gender couldn’t be determined, wasn’t viable since it suffered from hydrocephalus* and a possible heart problem (Fernandezjan, 2014, January 26, para. 15).

On Friday, two organizations opposed to abortion, the National Black Prolife Coalition and Operation Rescue issued a statement saying, “the fetus deserved not to be killed, and that numerous people had expressed an interest in adopting the child when it was born, even if it had disabilities” (Fernandezjan, 2014, January 26, para. 16).

Gholipour, Bahar. (2013, October 16). Life after death? New techniques halt dying process. Live Science. Retrieved from http://www.livescience.com/40481-resuscitation-long-after-death.html

Because technology can now revive patients hours after the heart has stopped beating, the border between life and death is not as clearly marked as it was when a beating heart and lungs drawing breath defined life (Gholipour, 2013, October 16, para. 1-2). Death does not occur in a single moment, but instead it is a process, for each cell must start its own course of dying. Accordingly, some scientists theorize that the death process in some instances can be potentially reversed (Gholipour, 2013, October 16, para. 3-4).

The Death Process

The idea that only a few minutes exist between the time the heart stops beating and the brain suffers permanent brain damage because of lack of oxygen is now outdated, for at that point, the process is only beginning. Brain damage comes in stages, so it isn’t until several minutes have passed that the brain cells begin going through the steps of cell death. Hence, physicians now have the opportunity “to put the brakes on” the dying process (Gholipour, 2013, October 16, para. 5-8). Hypothermia, when the body’s core temperature is lowered below the body’s normal body temperature of 98.6 degrees Fahrenheit, or 36 degrees Celsius, is one way to do this (Gholipour, 2013, para. 9).

Hypothermia supposedly protects the brain by decreasing its need for oxygen and halting cell death that has already been put into motion. Still, limits to this technique exist, and whether the patient recovers also depends on what happens after the heart is restarted and how the body is warmed after hypothermia. For example, a sudden rush of blood and oxygen to the brain can worsen neurological damage (Gholipour, 2013, para. 10-11 & 14).

A State-of-the-art Resuscitation

Although the idea of cooling the body after cardiac arrest is not entirely new, recent studies have shown that it improves the patient’s chances of survival and recovery. However, not all hospitals have made this a part of their critical care protocol perhaps because less than 10 percent of all patients would benefit from this therapy (Gholipour, 2013, para. 15-18). Ideally, machines would compress the chest as long as needed, and cooling and reducing the amount of oxygen needed after the heart is restarted would increase the chances of recovery without brain damage (Gholipour, 2013, para. 19).

New Ethical Questions with a New Concept of Death

Traditional wisdom holds that it’s best not to revive a patient who has suffered brain damage, for reviving him or her would result in a high risk of brain injury. However, a revised version of resuscitation protocol argues that it’s not always clear how much the brain has been damaged and if it is irreversible (Gholipour, 2013, para. 20-21). Accordingly, making snap judgments about whether the brain is irreversibly damaged is actually “writing people off”. Then again, extending life artificially isn’t always appropriate either (Gholipour, 2013, para. 22-23).

Gillette, Hope. (2014, January 16). Pregnant, 'brain dead' Marlise Munoz on life support sparks controversy and lawsuit. Reprinted from VOXXI. Hufffington Post. Retrieved from http://www.huffingtonpost.com/2014/01/16/marlise-munoz-controversy_n_4609452.html

In a petition filed in Tarrant County Civil Court Tuesday, January 14, 2014, Marlise Muñoz’s family asserted that doctors informed her husband Erick that she had lost all activity in her brain stem and thus was brain dead after he found her lying unconscious on the kitchen floor in November 2013. Since this time the 33-year pregnant woman has been kept on life support against her family’s wishes since she is carrying an unborn child, even though she stated to family members that she never wished to be kept alive on a machine, and they had clearly made these sentiments known to the medical staff at John Peter Smith Hospital in Fort Worth, Texas, Gillette, 2014, January 16, para. 1-2).

As their reason for their refusal to remove Muñoz from a ventilator, the Hospital points to the Texas Advanced Directives Act, which states, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” while her husband and parents as well as some legal authorities contend that the law doesn’t apply on the grounds that she isn’t a patient since she has “irreversible cessation of all functions of the entire brain, including the brain stem”, making her legally dead (Gillette, 2014, January 16, para. 3).

However, Muñoz’s husband argues, “That poor fetus had the same lack of oxygen, the same electric shocks, the same chemicals that got her heart going again,” while her father, Ernest Machado, adds, “For all we know, it’s in the same condition that Marlise is in. All we want is to let her rest, to let her go to sleep. What they’re (the hospital staff) doing serves no purpose,” Thus, the family has filed a civil suit against John Peter Smith Hospital in an attempt to carry out her wishes (Gillette, 2014, January 16, para. 4-5).

The suit specifically states that the Fort Worth Hospital's refusal to withdraw life support violates the 14th amendment of the United States Constitution since without the due process of law, the state has deprived a competent person from making decision about her own body as well as violating the 14th amendment of the Texas Constitution and Section 671.001 of the Texas Health and Safety Code (Gillette, 2014, January 16, para. 6):

a) A person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions.

b) If artificial means of support preclude a determination that a person’s

spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.

(Gillette, 2014, January 16, para. 7)

Even a living will, or an advanced directed could not have helped Muñoz since Texas is among the states that retain the right to override living wills if the fetus the mother is carrying has a chance to be born healthy (Gillette, 2014, January 16, para. 8-9). Therefore, Gillette argues, that anyone with a living will needs to be aware of just what these advance directive may allow:

Life-support technology--dialysis machines, ventilators, and respirators;

“Do Not Resuscitate” orders: not to use cardiopulmonary resuscitation if breathing or heartbeat stops;

Artificial hydration and nutrition (tube feeding);

Withholding food and fluids;

Organ and tissue donation.

(Gillette, 2014, January 16, para. 10)

Gillette, however, cautions, “Living wills are no guarantee those wishes will be carried out. In some states, a living will at best will make a stronger case should a medical situation like that of Marlise Munoz go to court” (2014, January 16, para. 11).

Greenberg, Gary. (2014, January 15). Lights out: A new reckoning for brain death. Elements. New Yorker. Retrieved from http://www.newyorker.com/online/blogs/elements/2014/01/lights-out-a-new-reckoning-for-brain-death.html

A committee at Harvard Medical School introduced “brain death” in 1968 when patients suffered from irreversible coma as a result of permanent brain damage. Physicians thus believed that “heart beating cadavers” kept on ventilators were dead, even though machines enabled them to breath, take in nourishment, excrete waste, and heal from infection. To simplify organ donation, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981 subsequently recommend that all states adopt statues declaring that the brain death are legally dead. Consequently, in the United States, if disease or trauma has destroyed the brain and brain stem, the patient is dead. This change in law allowed physicians to harvest the patient’s organs without committing murder (Greenberg, 2014, January 15, para. 1-2).

To justify this linguistic concept that moved the boundary of when life ended, physicians rationalized that the brain dead were dead since without the brain “the body no longer exists as an integrated whole”. Although these pronouncements temporarily quieted the debate over just when an individual is dead, two recent cases have again called into question the exactness of this legal and medical borderline (Greenberg, 2014, January 14, para. 3-4).

In California, on December 9, 2013, 13-year-old Jahi McMath hemorrhaged following throat surgery whereupon she lapsed into a coma. On December 11, a neurologist found no brain activity, and on December 12, neurologists pronounced McMath brain death (Greenberg, 2014, January 15, para. 5). Ordinarily, families of brain-dead declared patients accept this diagnosis, but in this case, both sides lawyered up—McMath’s legal team insisting that she was still reacting to family members and thus couldn’t be dead (Greenberg, 2014, January 15, para. 6).

However, after the McMath’s attorney, Christopher Dolan, filed a brief when Oakland’s Children’s Hospital refused to comply with her parents wish to prepare her for transfer to a rehabilitation facility, pundits speculation that either the hospital declared McMath dead to limit its malpractice liability to the $250,000 imposed by California law in the case of a wrongful death of a child or conversely that the family was attempting to claim the much higher damages that would be awarded a patient diagnosed for permanent injury. Whatever the reasons for this standoff, on January 7, 2014, McMath’s family transferred her to a long-term facility (Greenberg, 2014, January 15, para. 7).

Just before Thanksgiving, a Fort Worth, Texas, paramedic discovered his 33-year-old, 14-week pregnant wife, Marlise Machado Muñoz, unconscious and not breathing approximately a hour after she had gotten out of bed in the middle of the night to check on a crying child. Neither his attempts nor the attempts of emergency-room personnel at John Peter Smith Hospital could revive her. At this point, Muñoz’s family requested that she should be removed from any life-sustaining apparatuses, but the hospital refused since Texas law forbids withdrawing life support from a pregnant woman until her fetus can live on its own outside the womb. Hence, the brain-dead woman would need to stay connected to machines for at least 12 more weeks (Greenberg, 2014, January 15, para. 8).

Subsequently, the Muñoz case became fodder for abortion-rights activists and pro-lifers as well: The abortion-rights group charging that she was being turned into an incubator, and the Texas Catholic Conference responding that “life begins at conception.” Meanwhile, the hospital sidestepped these arguments by claiming that it was following the law—a situation complicated by the fact that Muñoz has never been declared legally dead (Greenberg, 2014, January 15, para. 9-10).

These cases alarm bioethicists, including Laurence McCullough of the Baylor College of Medicine, who states, “There are no ethical issues in the care of someone who is brain-dead, because the patient is now a corpse. The ventilator only gives “the appearance of life” (Greenberg, 2014, January 15, para. 11). Arthur Caplain, of New York University’s Langone Medical Center, similarly emphasizes the futility of trying to preserve a brain dead body, arguing, “You can’t really feed a corpse” while noting that the brain dead will “start to decompose” even as ventilators keep their blood circulating (Greenberg, 2014, January 15, para. 11). Accordingly, ethicists also worry that the McMath and Muñoz cases might affect the public’s belief in the concept of brain death (Greenberg, 2014, January 15, para. 12).

Nevertheless, making the diagnosis of brain death requires “careful observation”--checking to see if the eyes are responsive to light or touch, pricking the beds of the nails to see if the patient is sensitive to pain, testing muscle reflexes, and determining if carbon dioxide triggers spontaneous breathing when the ventilator shuts off, and failing these observations, using an electroencephalograph to detect any electrical activity in the brain, although this isn't necessarily a fool proof method either. But if all these findings are negative, neurologists declare the brain dead patient legally dead (Greenberg, 2014, January 15, para. 13-14).

Medical science, however, isn’t infallible since the bodies of brain dead patients have started breathing after medical personnel have withdrawn machines or even as physicians were removing vital organs. For example, a mother cared for her 3 ½ year-old brain dead son for 20 years before his body finally died from cardiac arrest (Greenberg, 2014, January 15, para. 15). Therefore, while organ transplants save lives, the concept of brain death has its limits (Greenberg, 2014, January 15, para. 16).

Halley, M. Martin & Harvey, William F. Medical vs. legal definitions of death. (1968, May 6). Journal of the American Medical Association, 204(6): 423-425. [Abstract only]. doi: 10.1001/jama.1968.03140190005002. Retrieved from http://jama.jamanetwork.com/article.aspx?articleid=339061

The legal definition of death doesn’t exactly match its medical definition since the legal definition includes the ending of all vital functions: The individual stops breathing on his or her own; the blood stops circulating, and the body cannot be brought back to life. Thus, cooperation between the medical and legal professions should anticipate potential conflicts, coming up with an interdisciplinary definition.

How to avoid brain death purgatory. (2014, January 31). The Daily Beast. Retrieved from http://www.thedailybeast.com/articles/2014/01/31/how-to-avoid-brain-death-purgatory.html

For the past two months, the American public has followed the case of a Texas family that wanted to withdraw life support from a brain dead pregnant woman while hospital administrators held that state law prohibited disconnecting it. When 33-year-old paramedic Marlise Muñoz collapsed on her kitchen floor shortly before Thanksgiving and was subsequently transported to John Peter Smith Hospital in Fort Worth, the 14-week pregnant woman was declared brain dead (Brain death purgatory, 2014, January 31, para. 1-2).

“No stranger to death”, Muñoz’s advanced directive declared that she never wanted to be placed on mechanical ventilation, yet JPS Hospital kept her there since administrators believed they were complying with a mandate that prevented the withdrawal of life support during pregnancy until her husband revealed the child was abnormal and successfully petitioned to withdraw life support . On January 24, 2014, JPS physicians complied with the family’s wish, releasing her body (Brain death purgatory, 2014, January 31, para. 3-5).

The Texas law thus prolonged a tragic situation and disregarded the reality that the brain dead are no longer living persons either medically or legally, even though machinery can force the heart and lung to perform physiological acts while organs and tissues may remain viable for transplant (Brain dead purgatory, 2014, January 31, para. 6-7).

Current medical ethics, however, justify this intervention to preserve organs for transplant and/or allow the fetus to remain in the womb until it can survive outside the mother’s dysfunctional body (Brain dead purgatory, 2014, January 31, para. 8-9).

But without a working brain stem, a mechanical ventilator forces air in the lungs through a tube in the throat while tubes stuck in the veins, stomach, and bladder foster bacteria that thrives in ICU, quacking spreading into the blood stream, resulting in sepsis. Blood vessels leak and the heart struggles against falling blood pressure until mechanical means can no longer artificially support organ function (Brain dead purgatory, 2014, January 31, para. 10).

In the interim, the goal of medical practice is “to beat the clock”, depending on how early in a pregnancy brain death occurs. The average time on life support, however, is about 40 days. Even so, death or life-long disability is very likely possibility in babies born to brain-dead mothers before 32 weeks gestation. Nevertheless, when physicians decide to continue life support for a pregnant woman, they deliver most babies at about 30 weeks (Brain dead purgatory, 2014, January 31, para. 11).

Throughout the time a brain-dead woman is pregnant, her baby endures blood pressure fluctuations, hormones and temperature abnormalities, the effect of medications, and the threat of infections. But if a fetus is able to survive until it reaches 32 weeks, it stands a good chance of being physically normal, For example, a 35-year old, United Arab Emirates woman was declared brain dead during her 16th week of pregnancy and thereafter kept on support for 110 days before she was delivered (presumably by Caesarian birth) of a healthy baby boy (Brain dead purgatory, 2014, January 31, para. 12).

While an ultra sound revealed that Muñoz’s fetus suffered from hydrocephalus, this condition is surgically treatable after birth, although forms of hydrocephalus that are diagnosed while the fetus is still in womb result in severe mental deficiencies (Brain dead purgatory, 2014, January 31, para. 13). Muñoz’s pregnancy has brought about a debate with no clear winners, so readers should make clear to their loved ones what their advance directives would be in a similar situation (Brain dead purgatory, 2014, January 31, para. 14 & 16).

That way the family and any attending physicians will know the individual’s explicit wishes, and this document will designate a medical proxy who can make decisions when he or she can’t. Therefore, the individual can give instructions beforehand like “Do not hospitalize” or “Do not Resuscitate” or even refuse all medical treatment; for instance, foregoing the insertion of a feeding tube. He or she may also make prior arrangements to donate organs for transplant or his or her body (Brain dead purgatory, 2014, January 31, para. 17).

Kaufman, Sharon. (2014, January 17). Defining death: Four decades of ambivalence. Huffington Post. Retrieved from http://www.huffingtonpost.com/american-anthropological-association/defining-death-four-decades-of-ambivalence_b_4617991.html

The diagnosis of brain death for Jahi McMath on December 12, 2013, helps recall a forty-year old controversy that occurred when the media in 1975 publicized the case of Karen Ann Quinlan, an unresponsive but not brain dead young woman who had fallen into an unexpected coma, thereby ushering in “a deep-seated confusion about what death is, when it occurs, and who says, so, and that confusion has only intensified in the intervening decades” (Kaufman, 2014, January 17, para. 1-3).

Karen Ann came to the public’s attention when after much forethought her parents sought to have her removed from the mechanical ventilator, and when her physician and hospital administrators refused to disconnect it, the Quinlan family petitioned first the Superior Court of New Jersey and the then the New Jersey Supreme Court to have artificial support withdrawn. The Supreme Court of New Jersey then ruled in the parents’ favor (Kaufman, 2014, January 17, para. 4). Although Millennial Generation medical students and doctors have not necessarily heard of this case, it was the first controversy to address just who gets to define death since at that time the ventilator had only recently become standard equipment in United States Intensive Care Units (Kaufman, 2014, January 17, para. 5-6).

First formed in 1968 to respond to new technologies, the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death had come up with a new definition of death to solve the problem of how doctors could keep organs viable and then legally transfer them from one body to another after the ventilator enable organ transplantation (Kaufman, 2014, January 17, para. 7-8) whereas historical death had diagnostically been defined solely by the absence of death and heartbeat (Kaufman, January 17, para. 9).

http://www.nhlbi.nih.gov/health/health-topics/topics/vent/while.html

New technology thus destabilized the definition of death in the medical community as physicians started to ask such questions as “How to speak about that condition to families? Were persons on ventilators really dead? How dead were they?”’; for after all, those connected to ventilators don’t “look dead, which causes some families and health professionals unresolved distress” (Kaufman, January 17, para. 10). Still other problems arose: “What should one do about death, and who gets to decide?” when the Quinlan case occasioned the rise of health care consumer activism, so in the decades since, families have increasing demanded to be a part in the decision-making process, and death has become a negotiated decision (Kaufman, January 17, para. 11-12).

Families thus need to understand just what a ventilator can—and cannot do—as doctors provide the patient with compassionate care both before and after brain death, for since a ventilated patient looks alive, a simple declaration of death no looker suffices. Medical schools, therefore, need to emphasize teaching how to explain to a ventilator-tethered patient’s family what has happened and why breathing doesn’t necessarily mean he or she is breathing (Kaufman, January 17, para 13). Kaufman accordingly recommends that the medical community needs to address this ethical problem as she asks, “Do we want death to be decided by the courts and by individuals' faith or demands, or do we want our understanding of it to remain firmly connected to the domain of medicine?” (January 17, para. 14).

Mohan, Geoffrey. (2013, September 18). Brain activity found after ‘brain death’. Los Angeles Times. Retrieved from http://articles.latimes.com/2013/sep/18/science/la-sci-sn-brain-activity-death-20130918

After brain activity flat lines, parts of the brain may still be active according to a study published in the online journal PLOS One in September 2013 that came about after Romanian doctors observed “odd” electroencephalogram (EEG) activity in a patient who had lapsed into a coma while taking anti-seizure medication (Mohan, 2013, September 18, para. 2-3). Universite de Montreal researchers subsequently recorded the activity in the upper cortical regions and hippocampus of the brain under deep anesthesia, documenting a “ripple event” in the hippocampus after the EEG read-outs went flat (Mohan, 2013, September 18, para. 4). These findings, which duplicate some patient cases, could revive the debate over the benchmarks for declaring brain death, which in the United States requires two flat-line readings 24 hours apart (Mohan, 2013, September 18, para. 5).

Research therefore suggests that the brain can survive an extremely deep coma and that inducing such a state might even preserve brain function (Mohan, 2013, September 18, para. 6). Sharp bursts of brain activity after cardiac arrest may also explain near-death experiences (Mohan, 2013, September 18, para. 7-9). Some researchers theorize that near-death experiences correspond with the sending of signals to the cortex, which generates higher brain activities. Thus, brain activity after a cardiac arrest does not gradually wane, but rather it diminishes by phases that include a burst of activity as shown in a recent study of mice (Mohan, 2013, September 18, para. 10-11).

Peters, Brandon. (2013, December 31. Jahi McMath died and what followed has been tragic. Sleep. About.com. Retrieved from http://sleepdisorders.about.com/b/2013/12/31/jahi-mcmath-died-and-what-followed-has-been-tragic.htm

When Jahi McMath's family’s fight to continue her life support became a headline, it also prompted a debate about exactly what boundaries mark the end of life (Peters, 2013, December 31, para. 1). On December 9, 2013, the teenager underwent three surgical procedures at Oakland Children’s Hospital to treat her sleep apnea--a tonsillectomy, an uvulopalatopharyngoplasty (UPPP), and the removal of nasal turbinates--hardly a “routine tonsillectomy, but rather a combination of risky and extensive measures (Peters, 2013, December 31, para. 2).

While in recovery, McMath started to bleed profusely before going into cardiac arrest. She may have asphyxiated after choking on her own blood, thus depriving her brain of oxygen, or she may have lost so much blood that her blood pressure dipped, decreasing blood flow to the brain. Either scenario would have led to coronary arrest (Peters, 2013, December 31, para. 3).

After a coronary arrest, a machine takes over the circulation of blood, and when the patient’s condition stabilizes, a neurologist makes his or her first evaluation to determine whether brain death has occurred. At this time, a hospital initiates a cooling protocol to preserve brain function by decreasing the metabolic demands on damaged tissues.

Once “rewarming” takes place, a neurologist then performs a formal exam on a now not sedated patient to see how much brain damage has occurred (Peters, 2013, December 31, para. 4). Physicians ordinarily use a long list of categories to determine the extent of brain damage: Mental status, the stimulation of three types of cranial nerves, observing motor reflexes, sensory coordination, and gait. If the patient is in a coma, however, the neurologist simplifies these observations, so they can be done without the patient's cooperation (Peters, 2013, December 31, para. 5).

Evaluating a patient’s mental state assesses the degree to which he or she respond to stimuli; for example, the neurologist might first say the patient’s name loudly and observe the response. While a fully conscious patient might awaken, a patient in a coma won’t open his or her eyes. The neurologist then asks the patient to perform specific acts, such as wiggling the toes, giving a thumbs up, and opening one’s eyes that must be consistent and reproducible (Peters, 2013, December 31, para. 6).

If the patient doesn’t respond to the neurologist’s verbal commands, a physician may pinch the nail beds of the hands or feet. If someone is partially conscious, he or she will cringe and pull away, which doesn’t happen if a patient is in a deep coma (Peters, 2013, December 31, para. 7). Patients with severe brain damage or even brain death, however, may still show reflexive movements that are controlled by the spinal cord. For example, if the big toe is squeezed, the foot at the ankle, the leg at the knee, and the leg at the hip may draw up in what is called the triple-flexion response (Peters, 2013, December 31, para. 8).

Accordingly, to determine if a movement is purposeful rather than reflexive, the physician may apply a painful stimulus to the top of the foot. A conscious patient will then move the foot away (Peters, 2013, December 31, para. 9).

A neurologist also determines if the brain stem is functioning since a functioning brain stem is necessary for the patient to breathe, wake, or sleep. Thus, the neurologist determines if the pupils respond to light, blinking when the physician uses a Q-tip to touch the cornea, and the neurologist also looks to see if when the head moves in one direction, the eyes move in the other (the oculocephalic reflex), and also determines if a gag reflex can occur. The neurologist also might squirt some water on the eardrum to discern a reflexive movement of the eyes. Finally, the ventilator might be turned off since someone who is brain dead cannot breathe off the ventilator. Such tests may be repeated by different neurologists or several times by the same neurologist to make sure that the diagnosis is correct (Peters, 2013, December 31, para. 10).

Depending upon hospital protocols, physicians may also perform other tests before declaring a patient brain dead. Supporting tests, for example, might include an electroencephalogram (EEG) to determine if any electrical brain activity is occurring, blood flow studies to see if any blood is entering the skull, and/or CAT scans or MRI’s (Peters, 2013, December 31, para. 10). However, once medical science determines that a patient is brain dead, he or she is now legally dead (Peters, 2013, December 31, para. 11).

Once physicians have determined brain death, he or she cannot return to consciousness. However, the situation becomes more complex when the individual has slipped into a vegetative state and may--or may not--recover. This condition allows for sleep-wake patterns, roving eye movements, and varying responses to the environment (Peters, 2013, December 31, para. 12).

Modern technology can keep a brain dead individual’s blood circulating, heart pumping, and lungs inflating, even though once life support turns off, these functions will stop. Peters thus questions the ethics of keeping the body tissues alive for a brain dead person (2013, December 31, para. 13). He also notes that physicians are legally and ethically required to stop doing so once they have determined that brain death has occurred. Peters also theorizes that for some yet unexplained reason this didn't happen with McMath (2013, December 31, para. 14).

Therefore, even though multiple physicians certified that McMath was brain dead, her family clung to hope that she could recover whereupon attorneys took up the case (2013, December 31, para. 15). Peters accordingly believes that her doctors’ inability to satisfactorily explain the situation to her family and to pull the switch has prolonged this tragedy (2013, December 31, para. 16).

Rettner, Rachael. (2014, January 3). Life after brain death: Is the body still ‘alive’? Live Science. Retrieved from http://www.livescience.com/42301-brain-death-body-alive.html

The case of Jahi McMath raises the question of how long can a body be kept working with the aid of technology after brain death (Rettner, 2013, January 3, para. 1-3). An individual is brain dead when no neurological activity occurs in the brain or brain stem. One of the last checks of this is whether the lungs start to inhale and exhale on their own—a primitive reflex carried out by the brain stem (Rettner, 2013, January 3, para. 4). Thus, a person is legally dead if no brain activity can be determined, and if breathing and circulatory functions can only occur with mechanical help (Rettner, 2013, January 3, para. 5).

Admittedly, the heart can keep beating for a short time after a patient is brain dead, although without the help of a ventilator, this usually stops in less than an hour (Rettner, 2013, January 3, para. 6). Kidney and gastric functions can continue for only about a week if a patient is on a ventilator since without a functioning brain because the body doesn’t produce the hormones to keep biological processes working (Rettner, 2013, January 3, para. 7).

Nevertheless, as the Director of the Bioethics Program at the University of Miami, Kenneth Goodman, stresses, “If you’re brain-dead, your dead; but, we can make the body do some of the things it used to do when you were alive” (Rettner, 2013, January 3, para. 8-9). The brain dead individual can't maintain normal blood pressure without blood-pressure medications, nor can he or she maintain body temperature without warm IV fluids, blankets, or a high-room temperature (Rettner, 2013, January 3, para. 10-11).

Little research exists about how long the body of a brain-dead person can be preserved intact; but in theory, it can be kept working indefinitely, although body tissue will be increasingly at risk for infection (Rettner, 2013, January 3, para. 15-16). Although the McMath case has been compared to that of Terri Shiavo, she existed in a vegetative state with some brain activity (Rettner, 2013, January 3, para. 17).

Toobin, Jeffrey. (2014, January 21). Even in death, abortion politics never goes away. Daily Comment. The New Yorker. Retrieved from http://www.newyorker.com/online/blogs/comment/2014/01/even-in-death-abortion-politics-never-goes-away.html

Two sad cases—the Jahi Mc Math case in California and the Marlise case in Texas--illustrate “an enduring truth of American politics: that abortion never goes away, even if the word itself is not uttered” In the McMath case, while the Children’s Hospital and Research Center of Oakland sought to have a brain death patient to be removed from a ventilator, in the case, John Peter Smith Hospital in Fort Worth refused to remove a 14-week pregnant woman from a ventilator even though she had lost all activity in the brain stem because it was following the directives of the Texas Advance Directives Act, which specifies, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” (Toobin, 2014, January 21, para. 1-3).

For Toobin, both stories display “a grim symmetry. Both patients are brain-dead. In one, the family wants the machines kept on; in the other, the family wants them turned off. Alas, both family tragedies are bound up in abortion politics, specifically the definition of ‘life’” (2014, January 21, para. 4). McMath’s case has become a cause for the anti-abortion movement, and especially by members of Terri Schiavo’s family, even though all medical authorities agree that she is brain dead, and brain death itself has for decades been a legal definition of death. Nevertheless, as noted by Heidi Flori, a critical-care physician of the Children’s Hospital. “Mechanical support and other measures taken to maintain an illusion of life where none exists cannot maintain the illusion indefinitely” (Toobin, 2014, January 21, para. 5).

Toobin further suggests that while the McMath family are extending their own torment at vast expense: Her tale “suggests a legal controversy where there is none” in contrast to the Munoz case thanks to abortion rights opponents. Toobin then labels the Advance Directives Act, which comes “in slightly different forms in about a dozen states” is “an almost perfect distillation of an anti-abortion mindset. The woman—the would-be mother—is just a vehicle, an incubator, without autonomy” (2014, January 21, para. 6-7).

Here Muñoz and her husband, Erick, who were both E.M.T. technicians, certainly knew the definition of brain death, and both husband and parents agreed that she wouldn’t want her body to be used in this way. Yet, according to the hospital’s interpretation of the Texas Advanced Directive Act, the decision had already been made by members of the Texas legislature, even though it’s not clear whether the fetus could survive to term, or if it also was deprived of oxygen for some time just as the mother was, or if the child survived, he or she would need lifelong medical assistance.

Even so, in both the McMath and Muñoz cases, anti-abortion case remain vague about who will pay the bills, thus recalling a Barney Frank quip that the pro-life advocates think that “life begins at conception and ends at birth” (Toobin, 2014, January 21, para. 8). In American politics, most controversial issues like prohibition and the legalization of marijuana come and go, but four decades after Roe v. Wade, as these two cases prove, Toobin argues that the abortion debate endures (2014, January 21, para. 9-10).

Walsh, Nancy. (2013, June 2). Biological death needs better definition. MedPage Today. Retrieved from http://www.medpagetoday.com/anesthesiology/anesthesiology/39554

Physicians gathered at the Annual Congress of the European Society of Anesthesiology assert that an international consent is needed to establish “contemporary and practical criteria for brain and circulatory death since clinical advances have led to the artificial continuation of respiration and circulation after brain function (Walsh, 2013, June 2, para. 1 & 3). “Measurable and observable” standards are needed to show “irreversible coma, absence of response to stimuli, and absence of brain stem reflexes, including the capacity to breathe (Walsh, 2013, June 2, para. 2).

As of yet, however, this hasn’t happened since physicians disagree about which reflexes need testing, what tests are appropriate, how many doctors need to confirm a death has occurred, and how long the patient needs to be observed since “biological death is not an event, but a process” (Walsh, 2013, June 2, para. 4-6). Accordingly, the World Health Organization and Canadian Blood Services are now proposing a definition of circulatory death that requires the total loss of brain stem function and consciousness and the permanent loss of circulation (Walsh, 2013, June 2, para. 7).

Medical intervention, however, can influence circulatory function, and in some cases it has been spontaneously restored following cardiac arrest in patients declared dead (Walsh, 2013, June 2, para. 8). Therefore, one physician interviewed proposed that those declared dead should be observed for at least five minutes after stopping CPR (Walsh, 2013, June 2, para. 9).

Vitez, Michael. (2014, January 22). States vary on brain-death laws. The Inquirer. Philly.com. Retrieved from http://www.philly.com/philly/health/20140122_States_vary_on_brain-death_laws.html

Headline-grabbing scenarios like the Marlise Muñoz case in Texas and the Jahi McMath case in California could happen elsewhere (Vitez, 2014, January 22, para. 1-6). Most particularly, 13 states have absolute and inflexible laws similar to the 1977 Texas Health and Safety Code, which states, that prohibits withdrawing or withholding life-sustaining treatment from pregnant patients while 18 states have pregnancy restrictions that the mother can only be kept on life support if the “fetus must be considered viable”, according to Katherine A. Taylor a lawyer and ethicist at Drexel University (Vitez, 2014, January 22, para. 7-8).

For example, a 2006 Pennsylvania law, Act 169, dealing with living wills requires a pregnant patient to be kept on life support “unless, with a reasonable degree of medical certainty, the fetus cannot develop to live birth” (Vitez, 2014, January 22, para. 9). However, five states respect the woman’s decision as stated in advance directives or else accept the decision of her medical Power of Attorney to decide what to do in Muñoz’s situation (Vitez, 2014, January 22, para. 10). Meanwhile, 14 states don’t have laws addressing the question as to whether a pregnant, brain dead patient should be kept on life support (Vitez, 2014, January 22, para. 11).

Taylor criticizes the Texas statue as “bad law, bad public policy” and bad ethics”, arguing, “Every family should make their own decisions about that. In Texas, the state lawmakers have stepped in and made it for them, deciding this woman should be kept alive before viability. That is so unjust” (Vitez, 2014, January 22, para. 11-12).

Muñoz’s lawyer goes so far as to argue that Texas law violates her constitutional rights under the 14th amendment equal protection clause since it denies pregnant women and their proxies the ability to make such life or death decisions (Vitez, 2014, January 22, para. 13). As for now, even though John Peter Smith Hospital in Fort Worth, Texas, acknowledges Munoz’ death, it awaits a court ruling (Vitez, 2014, January 22, para. 14).

Arguing the Hospital’s case, Arthur Caplan, a bioethicist at New York University, suggests, “You’re clearly trying to balance the potential life of the fetus with what the family and deceased would have wanted. . . It’s not a matter of being pro-life or pro-choice to me. It’s more nuanced. I’m not denying there’s a fetus to think about. But there are so many uncertainties. I’m willing to think the family and husband should decide what’s best, and not the Texas Legislature” (Vitez, 2014, January 22, para. 15-16).

However, John M. Haas, President of the National Catholics Bioethics Center in Philadelphia, believes that the Texas statue no longer applies: “The people think the Catholic Church is black and white on these things, and we’re not. We accept judgments of the physicians . . . It seems to me that if it were highly likely that the child could survive if the corpse were kept functioning for another week, there would be a strong presumption of doing that” (Vitez, 2014, January 22, para. 17-18).

"The people think the Catholic Church is black and white on these things, and we're not," he said. "We accept judgment of physicians . . . . It seems to me that if it were highly likely that the child could survive if the corpse was kept functioning for another week, there would be a strong presumption of doing that” (Vitez, 2014, January 22, para. 19). Nevertheless, Haas hastens to add that if the odds were that the fetus wouldn’t survive, such efforts would be futile: “If the child was deprived of oxygenated blood, do you have to use extraordinary means to keep the child alive? The answer would be, no, you don't” (Vitez, 2014, January 22, para. 20-21).

In the case of Jahi McMath, in which a family refused to accept the diagnosis of brain death, Howard I. Hurtig, a neurologist at Pennsylvania Hospital, expressed surprise since medical science defined brain death 40 years ago (Vitez, 2014, January 22, para. 22-24). Thus, Hurtig speculates that this scenario is a result of a failure of communication that possibly resulted from the physicians not showing enough compassion or else previously disrespecting or denying care (Vitez, 2014, January 22, para. 25-27): “My own experience is, if you explain things carefully and compassionately, . . . a lot of times people come to their senses” (Vitez, 2014, January 22, para. 28).

Taylor, nevertheless, noted that New York and New Jersey law allows families of brain-dead patients to restrict the definition of death to when the heart stops beating. She explained, “It's my understanding it was passed primarily to accommodate the Jewish Orthodox community” since “The New York statute, for instance, makes it clear the accommodation is temporary and urges hospitals to write polices providing ‘guidance on limits to the duration of the accommodation’” (Vitez, 2014, January 22, para. 29-30).

Wildes, Kevin William (2014, January 22). Death has become a choice. Religion. Huffington Post. Retrieved from http://www.huffingtonpost.com/rev-kevin-wm-wildes-sj-phd/death-has-become-a-choice_b_4612993.html

The Reverend Kevin William Wildes, the President of Loyola University, notes that both the Jahi McMath case and the Marlise Muñoz case “are raising fundamental questions about how we understand death” primarily because “today when most people die, they do so because someone—a loved one, a guardian, a physician—makes a decision” (2014, January 22, para. 1).

A prolonged heartbeat led McMath’s family to believe the brain-dead 13-year-old girl is still alive as “they live in hope of a miracle” after her family successfully fought her removal from a ventilator, and she was released to her family’s care and transferred to an unknown medical facility (Wildes, 2014, January 22, para. 2). By way of contrast, after physicians pronounced the 14 week-pregnant woman brain dead, the hospital refused to remove her from the ventilator since this would kill the fetus, now its 20th week, for Texas law requires that the mother be kept on life support “for the well-being of the fetus” (Wildes, 2014, January 22, para. 3).

Over the last 40 years, the public has faced end-of-life issues when it has heard about cases where the patients existed in a persistently vegetative state—a condition in which the patient doesn’t know what’s going on around him or her but has some brain stimulation. But the McMath and Muñoz cases are different from these situations, since physicians have determined that both patients are brain dead. In brain dead patients, all parts of the brain are dead: They can’t maintain normal blood pressure or body temperature, and need medications and ventilation to keep them breathing (Wildes, 2014, January 22, para. 4).

Additionally, when brain cells die, they can’t be restored, even though transplant surgery can replace other organs like the heart. Moreover, since “in nature, the brain is essential to who we are and what we do, . . . when it is dead, it is dead” (Wildes, 2014, January 22, para. 5).

Muñoz’s pregnancy complicates the ethics and legality of her situation, for if she was aware and able to do, she could elect to have an abortion, but as a brain dead pregnant woman, a law in Texas as well as at least 30 other states, restricts the ability of doctors to end life support even if that contradicts her wishes or those of her family (Wildes, 2014, January 22, para. 6).

All of which brings Wildes to ask another ethical question, “What about the cost of care in these cases?” since In a world of limited resources, the estimated cost of caring for brain dead patients runs about $7,500 per day (2014, January 22, para. 7). As medical technology advances, medical science will be able to further sustain life, so Wildes argues it is imperative that society recognizes what it is doing and why. Thus, he believes that “death has become a choice” accompanied by “important moral responsibilities” (2014, January 22, para. 8).

Wood, Daniel B. (2013, December 31). Jahi McMath case: Does definition of ‘death’ need to be rethought? Christian Science Monitor. Retrieved from http://www.csmonitor.com/USA/Justice/2013/1231/Jahi-McMath-case-Does-definition-of-death-need-to-be-rethought

Since the McMath family believes that their child is still alive even though six doctors have determined that her death has already legally occurred, this case emphasizes the need to redefine the definition of brain death since recent medical technological advances allow for more precise measurement of bodily functions (Wood, 2013, December 31, para. 1-2). Additionally, the McMath case might prompt individuals to put in writing what their wishes would be in a living will if circumstances placed them in a similar situation (Wood, 2013, December 31, para. 3).

Children’s Hospital Oakland, however, maintains that keeping McMath connected to a ventilator is futile since physicians have determined that she is brain dead (Wood, 2013, December 31, para. 4-6). California like most other U.S. states defines death as “no brain activity”, but some legal entities question whether this definition includes the brain stem (Wood, 2013, December 31, para. 7).

Meanwhile local news broadcasts have featured hospital officials and the McMath’s attorney debating the definition of death while her mother, Nailah Winkfield, has insisted that her daughter is breathing, has a heartbeat, and responds to her touch (Woods, 2013, December 31, para. 8). All of which prompts the Dean of the University of California, Davis, Kevin Johnson, to write, “As technology changes, the ability to keep ‘life’ going through life support techniques will advance and continue to press our notions of life and death” (Woods, 2013, December 31, para. 10).

Wendy Patrick, a prosecutor and a working minister, also points to cases where patients who have been declared legally dead have come back to life. For example, an Arizona man was revived after his organs were scheduled for removal for transplant (Woods, 2013, December 31, para. 11-12). She also cautions that the public doesn’t know all the details of the McMath case because of privacy laws (Woods, 2013, December 31, para. 13).

Some scholars, such as John Paris, Professor of Bioethics at Boston College, suggest that the judge in delaying the decision to remove McMath from the ventilation hoped to avoid making a decision. Moreover, a long-term care facility taking custody of the girl further complicates the issue (Woods, 2013, December 31, para. 14-17).

The issue of whether families would agree to having life support systems removed first occurred during the Terri Shiavo case. But today, whenever a patient is admitted to a hospital, either he or she or his or her parents or legal guardian ordinarily decides what heroic measures may be performed (Woods, 2013, December 31, para. 18-19). Curiously, however, Woods doesn’t question whether McMath's parents signed any documents addressing this possibility before she was wheeled into surgery since this is quite often standard legal procedure.

The U.S. Supreme Court in Cruzan v. Director, Missouri Department of Health, 497 U.S, 261 (1990), decided in a 5 to 4 decision that the state of Missouri’s refusal to withdraw life support was constitutional because Nancy Cruzan was unable to exercise the right to refuse treatment and had no specified her wishes before hand (Woods, 2013, December 31, para. 20-21). For more information go to http://www.oyez.org/cases/1980-1989/1989/1989_88_1503

Similarly, the McMath case could provide “greater legal clarity about what constitutes death” (Woods, 2013, December 31, para. 23). Some legal authorities want patients in a permanent vegetative state (or PVS) or born with anencephaly to be declared legally dead while conversely others want the definition of legal death only to apply to the “total breakdown of cell and tissues”, and some want to revert back to the previous definition of death—“the irreversible cessation of heart and respiration” (Woods, 2013, December 31, para. 24). Radical Right to Life supporters go so far as to reject the lack of electrical activity in the brain as a sign of death since a newly fertilized egg does not have a brain (Woods, 2013, December 31, para. 25).

Zitter, Jessica Nutik. (2014, January 31). End of life elusive, thanks to tricks of modern science. Opinion. Sfgate.com. Retrieved from http://www.sfgate.com/opinion/article/End-of-life-elusive-thanks-to-tricks-of-modern-5194165.php

While its natural to compare the brain death cases of Marlise Muñoz and Jahi McMath, the disparity between the two situation is equally striking—one family fighting to continue life support while the other battles to withdraw it (Zitter, 2014, January, 31, para. 1).

“Both had dead brains”, but breathing machines forced their hearts to beat. There, however, the similarities ended (Zitter, 2014, January 31 para. 3-5). Jahi’s parents presumably don’t understand that her body’s small reflexive movements aren’t a sign of life while Muñoz, “a medically savvy paramedic, had already informed her family that she didn’t want to be kept alive by heroic measures (Zitter, 2013, January 31, para. 6-7).

Brain death is accepted in all 50 states, and “life-prolonging technology” can illogically “keep hearts beating after death.” If death today meant what it meant a century ago, however, McMath’s body wouldn’t have been transported across state lines, and Muñoz and her non-viable fetus would have been quickly laid to rest, her advanced directives respected. Then both families could have moved on from mourning and begun the healing process (Zitter, 2013, January 31, para. 8-11).

However, “no good can come of prolonging the mechanical ticking of a dead body’s heart”, so hospital and courts need to act “more quickly and definitely” (Zitter, 2013, January 31, para. 12).

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*Definitions

Prenatal Hydrocephalis: A Book for Parents. (2002). San Francisco: Hydrocephalus Association. Retrieved from http://www.hydroassoc.org/docs/PrenatalHydrocephalus-A_Book_for_Parents.pdf

Reductio ad absurdum. (2014). The Free Dictionary. Farlex, Inc. Retrieved from http://www.thefreedictionary.com/reductio+ad+absurdum

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Bioethics Reading List

Consult the WorldCat (http://www.worldcat.org/ ) to determine where to find the nearest books on bioethics and end-of-life care and then access them through Interlibrary Loan:

The Bioethics Reader: Editor’s Choice. (2007). Ruth Chadwick, et al. Malden, Massachusetts: Blackwell Publishing, Ltd.

Case Studies in Palliative and End-of-Life Care. (2012). Case Studies in Nursing. Ed. Margaret L. Campbell. Ames, Iowa: John Wiley & Sons. [e-book from EBSCO host].

Contemporary Catholic Health Care Ethics. (2013). Ed. David Kelly, et al. 2nd. Ed. Washington, D. C.: Georgetown University Press.

From Cells to Souls and Beyond: Changing Portraits of Human Nature. Ed. Malcolm Jeeves. Grand Rapids, Michigan: William B. Eerdmans Publishing Company.

Koch, Tom. (2012). Thieves of Virtue: When Bioethics Stole Medicine. Cambridge, Massachusetts: MIT Press.

Prokovyev, Luka. (2009). Diagnosing Death: Issues, Ethics and Questions in Death Determination. Ethical Issues in the 21st Century. New York: Nova Science Publishing, Inc. [e-book from EBSCO host]

Swiften, Amy. (2011). Law, Ethics and the Biopolitical. New York: Routledge.

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A Short Annotated Bibliography on Living Wills

Berlin, Rebecca. (2014). What is a living will? AllLaw.com. ExpertHub.com. Retrieved from http://www.alllaw.com/articles/wills_and_trusts/article7.asp

Berlin defines what living wills do: “Generally, a living will describes certain life prolonging treatments” the signer of the living will “does or does not want applied” should he or she not be able to speak for him or herself.

Consumer Watch: Doctor gives advice on living wills. (2011, January 7). CBS SF Bay Area. Retrieved from http://sanfrancisco.cbslocal.com/2011/01/07/consumerwatch-doctor-gives-advice-on-living-wills/

A palliative-care physician gives listeners advice on living wills.

Free Living Wills/Advance Care Directives. (2014). Trial Data, Inc. Retrieved from http://www.doyourownwill.com/living-will/states.html

Website provides forms for living wills for all 50 states in the United States.

Living wills overview. (n.d.). Estate Planning. Free Advice. Retrieved from http://law.freeadvice.com/estate_planning/living_wills_power_of_attorney/living-will.htm

Web page explains the importance of creating a living will and granting a relative medical power of attorney.

Online living will completion for Texans. (2014). Texas Living Will.org. Retrieved from http://www.texaslivingwill.org/

Website provides an online legal will applicable in Texas.

Robinson, Lawrence, White, Monika, and Segal Jeanne. (2013, June). Advance health care directivies and living wills. Helpguide.org. Retrieved from http://www.helpguide.org/elder/advance_directive_end_of_life_care.htm

T
his well-thought out but easy to understand article on Advanced Health Care Directives explains what these documents actually do, clears up popular misconceptions about them, and also underlining that it is important that an attorney should look over any AHCD or Living Will.

The medical and legal links furnished on this Web page represent the opinions of their authors, so they complement—not substitute—for a physician or an attorney's advice.

McGregor, Texas, McGinley Memorial Public Library Books and Friends

Monday, January 6, 2014

The Search for a New Definition of Brain Death

References

Points of View:

New England Journal

of Medicine’s Perspective

Q: What is "brain death," and how did the concept arise?

Q: Why does it seem to be an open question as to when it's appropriate to declare brain death

Q: Is there something that hospitals and physicians should be doing that would help them better explain brain death to patients' families and deal with the ramifications?

An Annotated Bibliography

on Brain death

References:

Two tragic medical cases with the same outcome: Patients brain dead and on life support:

What does it mean to be brain dead?

Why is the term so confusing to so many people?

What do you do to confirm brain death?

Can people recover from brain death? There are stories that claim such reverses.

How do they differ?

Do you anticipate any developments dealing with brain death cases as a result of these two patients?

What can you say to grieving family members to explain what brain death means and to help them decide whether to continue or cease medical care?

The Death Process

A State-of-the-art Resuscitation

New Ethical Questions with a New Concept of Death

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