I’ve been intending to write something about the complicated relationship between statutes governing brain death and the actual protocols used to determine when someone is brain dead. That will have to wait for another time. Right now, it looks like the state of Virginia is poised to streamline the requirements for declaring a patient “brain dead.”
According to the bill tracking information on Richmond Sunlight, the law currently requires two physicians to make a determination that brain death has occurred and that one of them has to be a specialist “in the field of neurology, neurosurgery, or electroencephalography.” SB13 changes that by adding “critical care” to the list of specialists who can make a determination of brain death.
First, the good news: it still takes two physicians to make a determination. The bad news, of course is that neither of the physicians has to have any expertise in anything related to neurology. That means that false determinations of brain death are a virtual certainty.
The reason I say that false determinations are a virtual certainty relates to the reactions from medical experts (not to mention common sense) that were quoted in a 2006 article published in The Star-Ledger, when New Jersey was considering even more drastic changes in the personnel allowed to make a determination of brain death.
Yesterday, I searched the newspaper archives and bought a copy of the 2006 article by Angela Stewart. For those who want to hunt the article down, it’s titled “Deciding when life has come to an end – Medical board to review who can declare when brain death occurs,” and was published on June 12, 2006.
Back then, NJ was also looking to expand the range of medical professionals allowed to make a determination of brain death – and to drop the requirement for two physicians.
Here are quotes from medical professionals about dropping the requirements for specialists related to neurology being involved in the determination:
Martin Gizzi, a neurologist who chairs the New Jersey Neuroscience Institute at JFK Medical Center in Edison,said he is concerned about brain death rulings coming from doctors whomay not be properly trained.
For example, it is important to decipher whether a patient’s response is the resultof real brain activity or a spinal reflex, he said.
More…
Michael Williams, an associate professor of neurology at Johns Hopkins in Baltimore, believes most hospitals – including his – still prefer a neurologist or another expert doctorto make the pronouncement.
“Youjust don’t run in and look at the patient and say, ‘Yes, they are brain dead.’
It requires a thorough and detailed examination,” said Williams, who also is chairman of the American Academy of Neurology’s ethics, law and humanities committee.
Williams recalled a case study in the Journal of Critical Care Medicine involving apatient with Guillain-Barr‚ syndrome who was mistakenly thought to be brain dead.
“Fortunately,they did some testing before the second brain death examination that demonstrated the patient had EEG (brain wave) function. The patient actually got better,” he said.
So why is this being pushed? I’m guessing, but here are some possibilities:
1. Unlike the other specialists in brain-related areas, critical care specialists are readily available in an emergency room – and probably the ICU. This means that a determination of brain death can be made more quickly, freeing up a room and other resources – and getting any organ donation request much more quickly.
2. Given the sloppy usage of the term “brain death” regarding people who clearly were not (e.g. Haleigh Poutre and Dorothy Livadas) in some high-profile cases, it’s clear that at least some medical professionals don’t see much harm in erroneously labeling someone as “brain dead” if they think the person doesn’t have much of a chance of a “meaningful” recovery.
If people are declared brain dead under the new rules who would not have been under the old ones, it might also result in a small increase in available organs for transplantation.
There is at least one transplant recipient who isn’t celebrating this particular development.
Alison Hymes is a Virginia cross-disability activist who is an organ recipient from a person who died.
She says she would not have accepted a transplant if thislaw were in effect when she got hers.
Alison is the one who alerted me to this innocuous-looking piece of legislation in Virginia. –Stephen Drake
Obviously, this is a clear and blatant violation of the uniformity mandate setting a minimum floor below which states cannot go is harming and injuring disabled Americans.
I also don’t think such loose vague over- and under-inclusive due process decision-making meet Title II ADA’s enforcement of the First Amendment Right To Speak for One’s Self and Due Process For The Specific Brain.
Additionally, I wonder how such loose potential for psuedoscience can every get thru the Daubert gatekeeping evidence function of federal courts, although I do not personally know if Virginia state courts follow Daubert or Frye. since I have never familiarized myself with Virginia state law before.
At any rate — Par for the Course of the Unconsitutional actions the abelist majority and state governments are trying to take against disabled Americans to budget cut.
EquiisSavant,
The problem is particular to medicine and its standing in the law. At some point, I’ll share a longer post on this, but the current reality is this:
All 50 states recognize “brain death” as “death” – the determination of “brain death” defines a person as a corpse.
With few exceptions, the states don’t put the criteria for brain death in the relevant statutes – the criteria and practices for determining brain death are left up to the individual institutions.
The American Academy of Neurology has a set of suggested guidelines that are very rigorous. But there is no obligation for individual hospitals to adopt the guidelines – and according to a 2008 study in the journal “Neurology,” they don’t.
That means you can have two people with identical neurological function in two different hospitals. In hospital A, the individual will be declared brain dead while in hospital B, the person will continue to be evaluated and cared for.
Even though the patient in hospital A is identical to the one in hospital B, the one in hospital A is SOL – according to the state – which doesn’t care about what procedures were used – that patient is a patient no longer, but a breathing corpse.
It seems to me, the American Academy of Neurology has the least restrictive, narrowly tailored fit — strict scrutiny being required anytime First Amendment speech (communication) is at issue / Title II ADA “effective communication” of the brain-patients.
As far as the separate balkanized hospitals, if they are willy nilly making arbitray decisions like that, and without due process of law before taking a life, then they have invoked state action by their conduct and are subject to Title II ADA uniformity standards whether they like it or not.
Since the American Academy of Neurology sets the proper ADA-First Amendment “fit”, and the balkanized hospitals do not, I don’t see why a declaratory / injunctive action would not win to support the American Academy of Neurology position, and enjoin the separate hospitals form not following it.
But that’s just my two cents.