Recovery From "Brain Death"?

10/31/2017 01:16 pm ET

It is taught that when a brain cell dies, it will not be replaced. The brain cells you are born with will need to last a life-time as new cells will not replace cells that die for whatever reason. Actually, there is now data which supports neurogenesis, a process where new brain cells can be made; but that is a story for another day. The belief that a brain that has died will not ever recover led to the “Brain Death” statutes which allowed for a legal declaration of death for a person who meets certain clinical and laboratory findings indicative of brain death. These statutes allowed for the harvesting of organs for transplant purposes from donors who still had a functioning cardiopulmonary system. Previously, a person had to lose the heart activity in order to be declared dead. This meant that many otherwise useful organs were lost for transplant purposes.

The case of Jahi McMath is still winding its way through the California legal system and it will force a new look at the “brain death” statute. Unfortunately, this decision will be placed in the hands of a jury which may not have the knowledge, training, experience, or education to competently make this fateful decision.

The case of Jahi McMath began on December 9, 2013 when she suffered complications from a routine tonsillectomy and adenoidectomy performed at the Children’s Hospital of Oakland. She developed post-operative bleeding which resulted in a cardiac arrest. Although she was successfully resuscitated from the arrest, there was a period time where the brain was not getting enough oxygen. As a result she suffered a severe brain injury. The physicians taking care of her did examinations and tests which led them to believe she had suffered an irreversible brain injury. She was declared “brain dead” on December 12, 2013.

Ms. McMath’s mother, Nailah Winkfield, refused to acknowledge the “brain death” diagnosis and she took legal action to prevent the removal of her daughter’s life support. She argued that the family’s religious beliefs were that death only occurred with the loss of cardio-respiratory function. At that time, Superior Court Judge Evelio Grillo held that Jahi met the criteria for “brain death” under California law. This ruling would have allowed the doctors taking care of her to remove her from the ventilator at which time the heart and lungs would also fail. However, he stayed his ruling so that Ms. Winkfield could appeal to a higher court.

During the appeals process, the parties agreed to let Ms. McMath leave the hospital with life support. Ms. Winkfield agreed to let the death certificate be completed. This essentially meant that Jahi was legally dead in California but the body could be transported to New Jersey where that state’s law had a accommodation for religious beliefs; under the accommodation, if the family’s religious beliefs preclude a brain death declaration, then the time of death could only be based on cardio-respiratory criteria. Jahi was legally dead in California but legally alive in New Jersey.

According to media reports, Jahi has improved. Her attorney claims that subsequent evaluations shows the brain now has some blood flow and electrical activity; these are indicators of some viable brain tissue. He further claims that Jahi will move on command. The family has asked the California courts to reverse the declaration of death.

For a malpractice case originating in California, compensation is limited to $250 thousand dollars if the patient is dead but there is no limit to liability if the patient is still alive. In fact, in March 2015, McMath’s family filed a medical malpractice lawsuit against the surgeon who performed the operation and against the Children’s Hospital of Oakland.

Now, more than three years after Jahi was declared dead in California, based on “brain death” criteria, a California judge, Judge Stephen Pulido, has decided to let a jury determine if the death certificate should be revoked. The defendant’s in the malpractice action moved for a summary adjudication based on the grounds that Jahi McMath lacks standing to sue for personal injuries because she has already been declared deceased under California law. The facts are not in dispute that McMath’s brain death diagnosis from December 2013 was made within the accepted medical standards in place at that time under California law. However, there may be a change in circumstances which may lead to the conclusion that McMath’s brain is not dead under present criteria.

In the motion for summary adjudication hearing, the Plaintiffs (Jahi McMath and her family) submitted testimony from pediatric neurologist, D. Alan Shewmon, M.D., who stated that while “[t]here is no question that in December 2013 at Oakland Children’s Hosptal, Jahi McMath fulfilled the widely accepted pediatric guidelines for determining brain death,” “[t]here is equally no question in my mind that she no longer does, for the single reason that the first of the ‘three cardinal findings of brain death’-coma, absence of brainstem reflexes, and apnea-is not fulfilled. Rather, she is intermittently responsive, placing her in the category of ‘minimally responsive state.”

Judge Pulido has ruled that there is a disputed issue of material fact-is Jahi McMath brain dead under the Uniform Determination of Death Act? Since it is a disputed fact, it will be up to a jury to make this decision. With the denial of the motion, the case is now likely to proceed to a jury trial.

Is it fair to relitigate an issue that was already decided before? In this case it is. As Judge Pulido wrote, “California law on issue preclusion permits ‘reexamination of the same questions between the same parties where in the interim the facts have changed or new facts have occurred which may alter the legal rights of the parties.’ Jahi has included new allegations . . .as to such changed circumstances.”

If the “Brain Death” statute is overturned in California, other states may follow this example. This will have a devastating effect on organ transplantation in our country. Waiting for the heart to stop before declaring death will lead to the loss of many organs which may have been suitable for transplantation purposes under the “brain death” statutes.

The conflicts between clinical practice, medical ethics, and religious beliefs is obvious. The definition of death and the interpretation of patient autonomy and best interests will, unfortunately, be left in the hands of a jury which can only work with facts that have already occurred. It is time for legislative action to deal with this complex issue. The legislature is better able to look into future consequences and is better able to get input from experts who have studied this issue in depth.

There is a strong public interest to allow for organ transplantation from donors who have had a significant, irreversible, neurologic injury. A national plan as to what constitutes this, significant, irreversible, neurologic injury needs to be made. If nothing else, the “brain death” descriptor may need to be changed.

Dr. Weiman is the author of two books, Medical Malpractice and Fundamental Issues in Health Care Law.

Dr. Weiman’s website is www.medicalmalpracticeandthelaw.com

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