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Brain Death: Legal Obligations and the Courts Christopher M. Burkle, MD, JD 1
Thaddeus M. Pope, JD, PhD 2
1 Department of Anesthesiology, Mayo Clinic, Rochester, Minnesota 2Health Law Institute, Hamline University School of Law, Saint Paul, Minnesota
Address for correspondence Christopher M. Burkle, MD, JD, Department of Anesthesiology, Mayo Clinic, 200 First Street SW, Rochester, MN 55905 (e-mail: [email protected]).
Semin Neurol 2015;35:174-179.
Abstract
Brain death, or death determined by neurologic criteria, has been legally adopted in all U.S. states for decades. Despite its long-established history, a lack of clear understanding has led to disputes reguiring a legal forum for resolution. Recently,
Keywords
physicians and hospitals across the country have been impacted by a growing number of
► brain death
disputes about brain death. The authors offer clinicians a historical perspective on the
► legal
evolution of brain death as a legal cause of death in the United States. They then review
► lawsuit
the more common legal categories of disputes encountered, including representative
► courts
court cases for each. This overview provides physicians with a general legal perspective
► religious accommodation
on brain death so they may better appreciate the pertinent issues if and when later confronted.
Here we provide a legal historical timeline of brain death, or death determined by neurologic criteria (DDNC), along with perspectives on major categories of legal disputes in this area. Our comments largely review and expand upon topics that we have previously addressed in earlier publications on the topic.1 2The goal of this work is to offer clinicians an overview on the legal aspects of brain death, such that they have a greater understanding, if and when their practice is impacted by this emotional and challenging event.
History of Determining Death by Neurologic Criteria Traditionally, the legal definition of death was viewed as the cessation of cardiopulmonary function alone. Among those included within this definition of death were individuals suffer ing an acute overwhelming brain injury leading to asystole. However, with advances in cardiopulmonary resuscitation, pa tients suffering a major acute brain injury and loss of all brainstem function were increasingly being supported in inten sive care units (ICUs). This led to both an interest and need to more accurately determine death by neurologic criteria.3 In 1968, a physician-led committee at Harvard Medical School published a seminal paper entitled “A Definition of Irreversible
Issue Theme Brain Death; Guest Editor, Eelco F.M. Wijdicks, MD, PhD
Coma."4 The Harvard Committee concluded that patients who meet criteria for a certain type of severe brain injury may be pronounced dead before cardiopulmonary cessation occurs.4 During the 1970s, state legislatures began amending their statutes to legally recognize this additional, alternative meth od for determining death. Kansas was the first state to define DDNC as a legal death by state statute in 1970 (see >-Table 1 ).3 However, Kansas and other states that followed failed to formulate the neurologic death standard in a consistent and uniform manner, thereby creating possible future confu sion and conflict. In response to the need for greater consistency, the Pres ident’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research proposed a model statute in 1981 (see -Table I).5 Employing their cooperative study titled “Defining Death" as a template, The President’s Commission proposed that death could be met by either: (1) “irreversible cessation of circulatory and respira tory functions” or (2) “irreversible cessation of all functions of the entire brain, including the brainstem.”3-5 The latter qualification will be referenced as “brain death” throughout the remainder of this review. The Commission's proposal was quickly endorsed by the American Medical Association (AMA), the American Bar
Copyright © 2015 by Thieme Medical Publishers, Inc., 333 Seventh Avenue, New York, NY 10001, USA. Tel: +1(212) 584-4662.
DOI http://dx.doi.org/ 10.1055/S-0035-1547537. ISSN 0271-8235.
Brain Death: Legal Obligations and the Courts Table 1
Timeline of key legal developments
Year
Key legal developments in the USA
1970
Kansas is the first state to legally recognize brain death. Uniform Brain Death Act
1978 1981 1987 1991 2009
Burkle, Pope
Uniform Determination of Death Act New York Department of Health regulations require hospitals to accommodate religious and moral objections New Jersey Declaration of Death Act permits religious exemption. California statute requires hospitals to accommodate objections.
Association (ABA), and the National Conference of Commis sioners on Uniform State Laws (NCCUSL).1 The NCCUSL ad vanced the two model criteria under the name “Uniform Determination of Death Act" (UDDA) while seeking its pas sage in all states and jurisdictions across the United States (see -Table 1 ).6Today, 36 states, the District of Columbia, and the U.S. Virgin Islands have adopted the UDDA.7 The remain ing states have enacted substantially similar standards either through legislation or through court decision.6 Although not all U.S. jurisdictions have adopted the literal wording of the UDDA, all contain some legal acknowledgment of a brainbased standard of death.1,6,8,9 In addition, despite some variation in the administration of clinical testing, most coun tries acknowledge DDNC.10 Despite its widespread adoption, DDNC is hardly without legal and ethical controversy and criticism. It has been described as “at once well settled and persistently unresolved.’’11The latest re-evaluation of the definition of death from a federal oversight perspective was from the U.S. President’s Council on Bioethics.9 In its 2008 published report, the Council continued to endorse “total brain failure” as an appropriate criterion for declaring death.5 Further, it concluded that brain death remains both “biologically and philosophically defensible.”6 Some remain critical, arguing that brain death is “seriously problematic” and that the legal definition of death does not correspond to a biological definition of death.12 But most acknowledge that “current practices can be justified ethically and legally.”13 In short, despite some conceptual flaws, these critics see brain death as “too ingrained to abandon.”14 Indeed, there has been relatively little legislative or judicial action to eliminate or amend brain death. Despite ongoing academic debate, the law concerning brain death has re mained relatively stable for decades. Recently, the main legal issues have instead concerned the duty to accommodate family objections and the manner of conducting brain death.
General Accommodation Principles and State Laws Once a patient is determined dead, physiological support is typically discontinued as there is no longer a duty to treat. This is well established both in appellate case law15 and in medical practice.16 Once dead, the patient is no longer a patient17; therefore, the hospital is no longer in a treatment relationship with a patient. Instead, it is acting in the capacity
of the custodian of a dead body.18 Moreover, continuing “treatment” could constitute mistreatment of the newly dead.19Therefore, the DDNC acts as a “hard clinical endpoint” where technological interventions reach the limits of re quired or accepted medical practice.20 But there remain two situations in which hospitals con tinue physiological support after brain death. First, if the patient is an organ donor, support is continued until dona tion. Second, measures might be offered to accommodate the family. Continuing physiological support for organ donation is governed by well-settled law.21 in contrast, continuing physiological support as an accommodation is less settled. Many facilities voluntarily offer a short-term accommoda tion periods as a compassionate measure to help the family cope with the patient’s death,22 while in three states, the duty to accommodate is mandated by law.23 Statutes in New Jersey, New York, and California explicitly require hospitals to “ac commodate" families after a patient is declared dead by neurologic criteria (see -Table 1). N ew Jersey
In 1991, New Jersey enacted the New Jersey Declaration of Death Act.24 As in every other state, this statute provides that an individual who has “sustained irreversible cessation of all functions of the entire brain, including the brain stem, shall be declared dead.”25 Flowever, unlike other states, the New Jersey statute allows for a categorical exception26 for a reli gious objection to brain death. The New Jersey statute states that: [t]he death of an individual shall not be declared upon the basis of neurological criteria ....when the licensed physi cian authorized to declare death, has reason to believe, on the basis of the information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual, in these cases, death shall be declared . .. solely upon the basis of cardio-respiratory criteria...27 Summarizing, the New Jersey Declaration of Death Act provides that “the death of an individual shall not be declared upon the basis of neurological criteria when . . . such a declaration would violate the personal religious beliefs of Seminars in Neurology
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the individual.”27 Although the statute does not define what qualifies as a legitimate religious belief, it seems that upon the assertion of any plausible religious claim, death shall be declared “solely upon the basis of cardio-respiratory criteria.” New York
New York judicially recognize brain death as legal death in 198428 and in 1987, the New York Department of Health (NYDOH) adopted this standard into its administrative reg ulations.29 But the NYDOH did more than formally recognize brain death, as it also required hospitals to accommodate religious or moral objections to brain death. In 2011, the NYDOH confirmed that the New York accommo dation requirement is not a categorical exception like the New Jersey accommodation requirement. Instead, New York hospitals must merely “establish written procedures for the reasonable accommodation of the individual’s religious or moral objections to use of the brain death standard” when such an objection has been expressed by the patient or surrogate.30 In further contrast to New Jersey, the NYDOH accommodation requirement extends not only to religious, but also to moral objections. Although the range of objections may be broader, the duty of accommodation is less demanding. The NYDOH allows hospitals significant discretion in designing their own accom modation policies. The New York statute has been involved in at least two prior court decisions.31-33 In one, the court found in favor of the hospital in a disagreement over whether the African American, born-again Christian parents of a young child had been provided proper religious accommodation as required under New York law.33 In the second case, the court held that the hospital could terminate intensive care “support” for a young child who met the brain death guidelines set out in the New York statute.31 The parents, who were Jehovah’s Witnesses, argued that the New York statute was unconstitutional both because it in fringed on the baby’s right to live and because it failed to includes a mechanism for challenging the hospital’s determi nation of brain death. However, the court held that the statute was constitutional and determined that the hospital was in compliance with applicable state statutes. Three months later, an appeal was dismissed when the hospital determined the infant was not dead after all. In formulating its holding, the court acknowledged earlier case law in New York when stating that “[i]f a person is dead, there is no life to be deprived of, with or without due process of law. From time immemorial, physicians have determined when persons are dead and have ceased giving medical treatment.... It is not a denial of due process to have physicians, rather than parents or next of kin or close friends, determine that death has occurred.”31 In their final decision, the court extended the order restraining the hospital from discontinuing life support systems for 7 days to allow the family time to seek out a another facility willing to take the child. California
California first acknowledged brain death in 1974 and again in 1982 by adopting the Uniform Determination of Death Act.34 Seminars in Neurology
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But in 2009, a new California statute extended obligations of hospitals with respect to patients declared dead on the basis of neurologic criteria alone.35 The California statute requires that general acute care hospitals adopt a policy for providing family with a “reasonably brief period of accommodation” after a patient is declared dead by reason of irreversible cessation of all functions of the entire brain. California requires not only accommodation of moral or religious objections, but also accommodation of all types of objections. Although broad in the types of objections covered (e.g„ religious, moral, psychological), the California duty of accom modation is limited in several other material respects. First, during this “reasonably brief period of accommodation, a hospital is required to continue only previously ordered cardiopulmonary support.”35 “No other medical interven tions are required.”35 Second, the “brief period” is narrowly defined as only “an amount of time afforded to gather family or next of kin at the patient’s bedside.’’36 In other words, the California duty of accommodation is finite. On the other hand, the duty to accommodate may be more demanding if the patient’s family voices any “special religious or cultural practices and concerns.”37 In that case, the hospital must make “reasonable efforts to accommodate those reli gious and cultural practices and concerns."37 Because this duty is not limited to a “reasonably brief period,” it is probably similar to the duty to accommodate under New York law.
Court Activity As described in the last section, most legal developments concerning brain death have been legislative and regulatory to date. But there has also been significant judicial activity. Court cases have taken five basic forms: (1) families seeking physiological support after brain death, (2) families seeking damages for intentionally premature brain death, (3) families seeking damages for negligently premature brain death, (4) families seeking damages for emotional distress, and (5) pregnancy limitations on brain death. Families Seeking Physiological Support after Brain Death
Families regularly bring lawsuits seeking injunctions man dating continued physiological support. But courts almost never grant permanent injunctions.38 Instead, more com monly, courts grant only temporary restraining orders that preserve the status quo until more evidence can be gathered. In some of these cases, the family has religious objections,22 or just distrusts the diagnosis.32 Two recent cases, both involving children, serve as examples. Jahi McMath (Oakland Children’s Hospital, California)
In December 2013, a 13-year-old Oakland, California child (Jahi McMath) suffered from respiratory complications fol lowing a tonsillectomy and adenoidectomy. The hospital claimed that Jahi McMath was legally dead after two neuro logic assessments by its medical staff. As the child was no longer living, the hospital maintained that it was no longer obligated to continue providing medical care at the family’s
Brain Death: Legal Obligations and the Courts
request. The family claimed that their child was not dead because she had a continually beating heart and was moving in response to touch. They demanded that the hospital continue to provide medical care, including ventilatory sup port, in hopes that she might still recover. Some 22 days after the original diagnosis of brain death, the Alameda County Superior Court announced that the family and hospital had come to a partial agreement.23 The agreement specified that an outside medical team could remove Jahi McMath from the hospital and that her mother would take full responsibility for her body during its relocation to another facility. In early January 2014, the McMath family removed Jahi's body from the hospital to a facility in New Jersey.39 The family is reported to be seeking to revoke Jahi’s California death certificate, so that Jahi will qualify for medical benefits.40 Issac Lopez (Kosair Children’s Hospital, Kentucky)
On June 29, 2014, 2-month old Issac Lopez presented to the emergency department at a Louisville, Kentucky hospital with a skull fracture, rib fractures, respiratory failure, cardiac arrest, and blood and fluid pooling around his brain.41 Issac’s father was arrested for child abuse after admitting to having hit Issac’s head against the bathtub. Issac was admitted to the pediatric intensive care unit where the attending physician diagnosed Issac with total brain failure. At the family’s request, a second exam to confirm brain death was deferred for 48 hours to allow extended family members to arrive at the hospital. Two repeat examinations confirmed total brain failure. But the family did not accept the diagnosis. Issac’s mother then obtained a temporary restrain ing order. (In light of the pending criminal charges, Issac’s father suffered a material conflict of interest in making medical decisions for Issac. His objection to stopping physio logical support was impacted by his desire to avoid homicide charges.) The hospital then filed its own separate action asking the court to allow the removal of physiological support given that Issac was dead. Two additional examinations (one by the family’s independent medical expert) also confirmed total brain failure. At this point, there was no longer a factual dispute that Issac’s condition met the criteria for brain death. Still, Issac’s mother and a court-appointed guardian argued that the hospital could not stop Issac’s physiological support because parents have a constitutional right to make medical decisions for their children. They argued that because Issac’s parents had not had those rights terminated, they possessed sole decision making authority with respect to Issac’s medical care. The court rejected this position stating that “with death, no parental decision making survives (save decisions regarding burial).” Instead, the court found that because the criteria for brain death were met, Issac was “legally dead’’42 and there fore, the hospital had “no legal obligation to artificially maintain respiration, circulation or to render any other medical intervention or treatment."43 Cases Seeking Damages for Intentionally Premature Brain Death
One alarming allegation brought before the courts is that clinicians intentionally and deliberately confirm death by
Burkle, Pope
neurologic criteria before those criteria are actually met. The case below serves as an illustration. Gregory Jacobs v. CORE (Erie, Pennsylvania)
In 2007, a high school student sustained head injuries while on a school ski trip. In a federal lawsuit filed against the hospital and the area organ procurement organization, the boy’s parents alleged that they were asked to consent to organ donation even though death had not been determined and was not even imminent. Their claim included that had he been properly treated rather than “killed for his organs," he would have had a significant chance of recovery. Claims for battery, fraudulent misrepresentation, negligent misrepre sentation, and medical malpractice were asserted.44 In late 2012, the parties settled these claims for over $1 million.45 Cases Seeking Damages for Negligently Premature Brain Death
Although cases of intentionally and deliberately premature brain death are the most alarming, also concerning are those cases alleging negligently premature brain death. The case below serves as an example of this concern. St. Joseph’s Hospital (Syracuse, New York)
In 2009, clinicians at a Syracuse hospital declared Colleen Burns dead following a drug overdose. Despite several signs of responsiveness to stimuli, the hospital continued to prepare her for organ procurement. Then, just as surgery was about to commence, Burns opened her eyes in the operating room. The surgery was immediately canceled and Burns was released 2 weeks later. In 2013, the New York Department of Health fined the hospital $6,000 for improperly implementing brain death protocols. In addition, the Centers for Medicare and Medicaid Services (CMS) sanctioned the hospital for failing to undertake an “intensive and critical review of the event.”46 Cases Seeking Damages for Emotional Distress
In addition to court cases that seek continued physiological support and those requesting damages for premature brain death, there are still others seeking emotional distress dam ages. In these cases, families allege that clinicians were insensitive or outrageous in how they treated or communi cated with the family of the patient after brain death. The case below serves to illustrate this concern. Morgan Westhoff (Oakland Children’s Hospital, California)
In January 2013, 21-month-old Morgan Westhoff died at Oakland Children’s Hospital after alleged malpractice in repairing a blood vessel birth defect. Morgan’s parents did not dispute the brain death diagnosis. But they did state concern for the hospital’s management following their daughter’s diagnosis. First, the hospital had apparently lied about an autopsy, leaving the Westhoffs in “hours of cruel and unjust agony" as they waited with their daughter’s body for the coroner to arrive. Second, the family felt “betrayed, violated, and lost” when they learned no autopsy was ever conducted. Third, the hospital pressured the family with Seminars in Neurology
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“multiple aggressive requests” to donate Morgan’s organs. Fourth, the hospital sent repeated fundraising solicitations and surveys. A lawsuit was then filed for negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation.47 A hearing be fore the court is still pending as of the date of this writing. Pregnancy Limitations on Brain Death
Despite a general trend in the law allowing for maternal autonomy surrounding decisions about their health along with precedence providing step-by-step guidance as to how to decide on termination of medical treatment, many states continue to maintain pregnancy exclusions within their advance directive statutes.48 Currently, states are categorized into five classifications depending on their approach to the impact of pregnancy on life-sustaining treatment48: 1. Law automatically invalidates the advance directive (AD) of a woman when she is pregnant. 2. Law contains restrictions similar to the Uniform Rights of the Terminally 111 Act (URTIA), which requires that a pregnant woman be provided with “life sustaining treat ment” if it is “probable” that the fetus will reach the point of “live birth” regardless of a woman’s express wishes to the contrary. 3. Law considers fetal viability in determining enforceability of the AD. 4. Lawallows for writing of specific treatments in the ADthat the pregnant woman would accept. 5. Law is silent on the impact of pregnancy on the AD. One recent case illustrates the application of an AD statute pregnancy clause to a woman after brain death. Munoz v. John Peter Smith Hospital (Fort W orth, Texas)
On November 26,2013 at 2:00 a m , Marlise Munoz, a 33-yearold woman pregnant with her 14-week-old fetus, was found unconscious on her kitchen floor, where she had apparently collapsed almost 1 hour prior49-51 She was rushed to John Peter Smith Hospital in Fort Worth, Texas, where she was intubated and ventilated and managed in the intensive care unit. She was soon pronounced brain dead. Accordingly, her family (including her husband and her parents) requested that life support measures be discontinued.49 Although Marlise had not left any written directives regarding endof-life care, according to her husband, she had previously verbalized that “she did not want to have machines keep her body alive.’’50 Officials at the hospital, however, refused to withdraw life support, citing a Texas state law requiring them to maintain life-sustaining treatment for a pregnant patient. On January 24, 2014, almost 2 months after suffering her fatal event, State District Judge R.H. Wallace held that the statute concerning “life-sustaining treatment” did not apply to a patient who was dead. The judge ordered the hospital to terminate Munoz’s cardiopulmonary support.52 In the end, the hospital acknowledged that Munoz had been brain dead since November 28, 2013 and that her fetus was not viable.50,51 Seminars in Neurology
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Conclusions As reflected by the sample of cases above, although the concept of brain death has been accepted for decades, confu sion and conflict still arise. These disputes and uncertainties often require legal determination. Disagreements on such an emotionally trying topic as brain death will likely never go away. Families and clinicians will continue to petition the courts for resolution. It is imperative that hospitals and practitioners alike appreciate the history and nature of these disputes in hopes that they may better confront this issue, if and when it impacts their practice while also assisting families in their better understanding of brain death.
Acknowledgments
The authors wish to thank Ms. Janet Henderson for her technical assistance with this manuscript.
References 1 Burkle CM, Sharp RR, Wijdicks EF. Why brain death is considered death and why there should be no confusion. Neurology 2014; 83( 16): 1464—1469 2 Pope TM. Legal briefing: brain death and total brain failure. J Clin Ethics 2014;25(3):245-257 3 Smolensky KR. Defining life from the perspective of death: an introduction to the forced symmetry approach. UCHI LEGAL2006: 41-84 4 Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. Adefinition of irreversible coma. JAMA 1968;205(6):337-340 5 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death. Washington, DC: Government Printing Office; 1981 6 The President’s Council on Bioethics. Controversies in the Deter mination of Death. 2008 Bioethics Research Library at George town University [online]. Available at: https://bioethicsarchive. georgetown.edu/pcbe/reports/death/Controversies%20in%20the% 20Determination%20of%20Death%20for%20the%20Web%20(2). pdf. Accessed December 26, 2014 7 Uniform Law Commission, The National Conference of Commissiioners on Uniform State Laws. Legislative Fact Sheet - Determi nation of Death Act. Available at: http://www.uniformlaws.org/ LegislativeFactSheet.aspx?title=Determination%20of%20Death% 20Act. Accessed October 16, 2014 8 Association of Organ Procurement Organizations. State brain death laws. Available at: http://www.aopo.org/brain-death-a68. Accessed October 16, 2014 9 Bernat JL. Controversies in defining and determining death in critical care. Nat Rev Neurol 2013;9(3): 164—173 10 Wijdicks EF. Brain death worldwide: accepted fact but no global consensus in diagnostic criteria. Neurology 2002;58(1 ):20— 25 11 Capron AM. Brain death—well settled yet still unresolved. N Engl J Med 2001 ;344(16):1244-1246 12 Truog RD, Miller FG. Changing the conversation about brain death. AmJ Bioeth 2014; 14(8):9-14 13 Shah SK, Truog RD, Miller FG. Death and legal fictions. J Med Ethics 2011 ;37(12):719-722 14 Truog RD. Brain death - too flawed to endure, too ingrained to abandon. J Law Med Ethics 2007;35(2):273-281 15 Gallups v. Cotter, 534 So. 2d 585 (Ala. 1988)
Brain Death: Legal Obligations and the Courts
Bel linger N, Jennings B, Wolf SM. The Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life. New York, NY: The Hastings Center; Oxford University Press; 2013:105-110 17 Douglas v. Janssen Funeral Homes, No. 2KB-09-173CI, 2010 WL 9069780 (Alaska Super. Ct. 19 Nov. 2010) (citing 4 cases) 18 Miller RD. Problems in Health Care Law. 9th ed. Sudbury, MA: Jones & Bartlett; 2006:765-775 19 Anderson JA, Vernaglia LW, Morrigan SP. Refusal of brain death diagnosis: the health lawyer’s perspective. JONAS Health Law Ethics Regul 2007;9(3):90-92 20 Clarke MJ, Remtema MS, Swetz KM. Beyond transplantation: considering brain death as a hard clinical endpoint. Am J Bioeth 2014;14(8):43-45 21 Uniform Law Commission. Acts, Anatomical Gift Act. 2006. Avail able at: http://uniformlaws.org/Act.aspx?title=Anatomical+Gift+ Act+(2006). Accessed October 24, 2014 22 In re Motl Brody, No. 1:08-CV-01898 (HHK) (D.D.C. 2008) 23 Stipulation re: Protocol for Possible Removal of Jahi McMath from Children's Hospital CASE NO. RP13707598: Submitted to the Superior Court of California, County of Alameda. Available at: http://www.thaddeuspope.com/images/2014-01-03_Stip.pdf. Accessed October 16, 2014 24 Armstrong PW, Olick RS. Innovative legislative initiatives: the New Jersey Declaration of Death and Advance Directives for Health Care Acts. Seton Hall LegisJ 1992; 16(1 ):177-197 25 N.J. RevStat. 26:6A-3 26 Grodin MA. Religious exemptions: brain death and Jewish law. J Church State 1994;36(2):357-372 27 N.J. RevStat. §26:6A-5 28 People v. Eulo, 63 N.Y.2d 341 (N.Y. Ct. App. 1984) 29 10 N.Y.C.R.R. §400.16(1987) 30 New York State Department of Health and New York State Task Force on Life & the Law. Guidelines for Determining Brain Death. Nov. 2011. Available at: http://www.health.ny.gov/professionals/ hospitaLadministrator/letters/2011/brain_death_guidelines.pdf. Accessed October 14, 2014 31 Alvarado v New York City Health & Hosp. Corp., 547 N.Y.S.2d 190 (N.Y. Sup. Ct. 1989); vacated 157 A.D.2d 604 (1990) 32 Burkle CM, Schipper AM, Wijdicks EF. Brain death and the courts. Neurology 2011 ;76(9):837-841 33 In the Matter of Long Island Jewish Med. Center, 641 N.Y.S.2d 989 (N.Y. Sup. Ct. 1996) 34 Cal. Health & Safety Code §§ 7180-81 35 Cal. Health & Safety Code § 1254.4(a) 36 Cal. Health & Safety Code § 1254.4(b) 37 Cal. Health & Safety Code § 1254.4(c) 16
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38 Pope TM. Involuntary passive euthanasia in US courts: reassessing the judicial treatment of medical futility cases. Marquette Elder’s Advisor 2008;2:229-268 39 Ioffee K, DeBolt D. Jahi McMath being kept at New Jersey Hospital. Mercury News 2014. Available at: http://www.contracostatimes. com/news/cL25992853/jahi-mcmath-being-kept-alive-at-newjersey. Accessed February 15, 2015 40 Winkfield v. Children's Hospital, No. PR13-707598 (Writ of Error Corum Nobis and Memorandum Regarding Court’s Jurisdiction to Hear Petition for Determination that Jahi McMath Is Not Brain Dead) 41 In re Issac Lopez, a Minor, No. 14-CI-354 (Jefferson Circuit Court, Kentucky 22 July 2014) (Order). 42 Ky. Rev. Stat. § 446.400(2) 43 Galofaro C. Brain-dead baby taken off life support. Courier Journal; 2014 44 Jacobs v. CORE, No. 1:09-CV-00048-SJM (W.D. Pa. 23 Aug. 2012) (trial brief) 45 Jacobs v. CORE, No. l:09-CV-00048-SJM (W.D. Pa. 6 Nov. 2012) (Petition to Obtain Approval of Settlement) 46 O’Brien J, Moulder JJ. St. Joseph’s ’dead’ patient awake as doctors prepared to remove organs. Syracuse Post-Standard; 2013 47 Westhoff v. Children’s Hospital and Research Center of Oakland, No. RG14721095 (Alameda County Sup. Court, Calif. 11 Apr. 2014) (Complaint) 48 Greene M, Wolfe LR. Pregnancy exclusions in state living will and medical proxy statutes. Available at: http://www.centerwomenpolicy.org/programs/health/statepoIicy/documents/REPRO_PregnancyExclusionsinStateLivingWillandMedicalProxyStatutesMeganGreeneandLeslieR.Wolfe.pdf. Accessed July. 21, 2014 49 Munoz v.John Peter Smith Hospital. Plaintiffs original petition for declaratory judgment and application for unopposed expedited relief cause No. 017-270080-14. Available at: http://thaddeuspope.com/images/Munoz_v._JPSJan_2014_.pdf. Accessed July 21, 2014 50 Hellerman C, Morris J, Smith M. Brain-dead Texas woman taken off ventilator. Available at: http://www.cnn.com/2014/01/26/health/ texas-pregnant-brain-dead-woman/index.html?iphoneemail. Accessed July 21, 2014. 2014 51 Chappell B. Judge tells hospital to take pregnant woman off life support. Available at: http://www.npr.org/blogs/thetwo-way/ 2014/01/24/265785603/judge-teIls-hospital-to-take-pregnantwoman-off-life-support. Accessed July 21,2014 52 Munoz v.John Peter Smith Hospital, Tarrant County, Texas District Court Order Cause No. 096-270080-14. Available at: http://thaddeuspope.com/images/MUNOZ_202053415-Judges-Order-onMunoz-Matter.pdf. Accessed July 21, 2014
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Brain Death: Legal Obligations and the Courts Christopher M. Burkle, MD, JD 1
Thaddeus M. Pope, JD, PhD 2
1 Department of Anesthesiology, Mayo Clinic, Rochester, Minnesota 2Health Law Institute, Hamline University School of Law, Saint Paul, Minnesota
Address for correspondence Christopher M. Burkle, MD, JD, Department of Anesthesiology, Mayo Clinic, 200 First Street SW, Rochester, MN 55905 (e-mail: [email protected]).
Semin Neurol 2015;35:174-179.
Abstract
Brain death, or death determined by neurologic criteria, has been legally adopted in all U.S. states for decades. Despite its long-established history, a lack of clear understanding has led to disputes reguiring a legal forum for resolution. Recently,
Keywords
physicians and hospitals across the country have been impacted by a growing number of
► brain death
disputes about brain death. The authors offer clinicians a historical perspective on the
► legal
evolution of brain death as a legal cause of death in the United States. They then review
► lawsuit
the more common legal categories of disputes encountered, including representative
► courts
court cases for each. This overview provides physicians with a general legal perspective
► religious accommodation
on brain death so they may better appreciate the pertinent issues if and when later confronted.
Here we provide a legal historical timeline of brain death, or death determined by neurologic criteria (DDNC), along with perspectives on major categories of legal disputes in this area. Our comments largely review and expand upon topics that we have previously addressed in earlier publications on the topic.1 2The goal of this work is to offer clinicians an overview on the legal aspects of brain death, such that they have a greater understanding, if and when their practice is impacted by this emotional and challenging event.
History of Determining Death by Neurologic Criteria Traditionally, the legal definition of death was viewed as the cessation of cardiopulmonary function alone. Among those included within this definition of death were individuals suffer ing an acute overwhelming brain injury leading to asystole. However, with advances in cardiopulmonary resuscitation, pa tients suffering a major acute brain injury and loss of all brainstem function were increasingly being supported in inten sive care units (ICUs). This led to both an interest and need to more accurately determine death by neurologic criteria.3 In 1968, a physician-led committee at Harvard Medical School published a seminal paper entitled “A Definition of Irreversible
Issue Theme Brain Death; Guest Editor, Eelco F.M. Wijdicks, MD, PhD
Coma."4 The Harvard Committee concluded that patients who meet criteria for a certain type of severe brain injury may be pronounced dead before cardiopulmonary cessation occurs.4 During the 1970s, state legislatures began amending their statutes to legally recognize this additional, alternative meth od for determining death. Kansas was the first state to define DDNC as a legal death by state statute in 1970 (see >-Table 1 ).3 However, Kansas and other states that followed failed to formulate the neurologic death standard in a consistent and uniform manner, thereby creating possible future confu sion and conflict. In response to the need for greater consistency, the Pres ident’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research proposed a model statute in 1981 (see -Table I).5 Employing their cooperative study titled “Defining Death" as a template, The President’s Commission proposed that death could be met by either: (1) “irreversible cessation of circulatory and respira tory functions” or (2) “irreversible cessation of all functions of the entire brain, including the brainstem.”3-5 The latter qualification will be referenced as “brain death” throughout the remainder of this review. The Commission's proposal was quickly endorsed by the American Medical Association (AMA), the American Bar
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DOI http://dx.doi.org/ 10.1055/S-0035-1547537. ISSN 0271-8235.
Brain Death: Legal Obligations and the Courts Table 1
Timeline of key legal developments
Year
Key legal developments in the USA
1970
Kansas is the first state to legally recognize brain death. Uniform Brain Death Act
1978 1981 1987 1991 2009
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Uniform Determination of Death Act New York Department of Health regulations require hospitals to accommodate religious and moral objections New Jersey Declaration of Death Act permits religious exemption. California statute requires hospitals to accommodate objections.
Association (ABA), and the National Conference of Commis sioners on Uniform State Laws (NCCUSL).1 The NCCUSL ad vanced the two model criteria under the name “Uniform Determination of Death Act" (UDDA) while seeking its pas sage in all states and jurisdictions across the United States (see -Table 1 ).6Today, 36 states, the District of Columbia, and the U.S. Virgin Islands have adopted the UDDA.7 The remain ing states have enacted substantially similar standards either through legislation or through court decision.6 Although not all U.S. jurisdictions have adopted the literal wording of the UDDA, all contain some legal acknowledgment of a brainbased standard of death.1,6,8,9 In addition, despite some variation in the administration of clinical testing, most coun tries acknowledge DDNC.10 Despite its widespread adoption, DDNC is hardly without legal and ethical controversy and criticism. It has been described as “at once well settled and persistently unresolved.’’11The latest re-evaluation of the definition of death from a federal oversight perspective was from the U.S. President’s Council on Bioethics.9 In its 2008 published report, the Council continued to endorse “total brain failure” as an appropriate criterion for declaring death.5 Further, it concluded that brain death remains both “biologically and philosophically defensible.”6 Some remain critical, arguing that brain death is “seriously problematic” and that the legal definition of death does not correspond to a biological definition of death.12 But most acknowledge that “current practices can be justified ethically and legally.”13 In short, despite some conceptual flaws, these critics see brain death as “too ingrained to abandon.”14 Indeed, there has been relatively little legislative or judicial action to eliminate or amend brain death. Despite ongoing academic debate, the law concerning brain death has re mained relatively stable for decades. Recently, the main legal issues have instead concerned the duty to accommodate family objections and the manner of conducting brain death.
General Accommodation Principles and State Laws Once a patient is determined dead, physiological support is typically discontinued as there is no longer a duty to treat. This is well established both in appellate case law15 and in medical practice.16 Once dead, the patient is no longer a patient17; therefore, the hospital is no longer in a treatment relationship with a patient. Instead, it is acting in the capacity
of the custodian of a dead body.18 Moreover, continuing “treatment” could constitute mistreatment of the newly dead.19Therefore, the DDNC acts as a “hard clinical endpoint” where technological interventions reach the limits of re quired or accepted medical practice.20 But there remain two situations in which hospitals con tinue physiological support after brain death. First, if the patient is an organ donor, support is continued until dona tion. Second, measures might be offered to accommodate the family. Continuing physiological support for organ donation is governed by well-settled law.21 in contrast, continuing physiological support as an accommodation is less settled. Many facilities voluntarily offer a short-term accommoda tion periods as a compassionate measure to help the family cope with the patient’s death,22 while in three states, the duty to accommodate is mandated by law.23 Statutes in New Jersey, New York, and California explicitly require hospitals to “ac commodate" families after a patient is declared dead by neurologic criteria (see -Table 1). N ew Jersey
In 1991, New Jersey enacted the New Jersey Declaration of Death Act.24 As in every other state, this statute provides that an individual who has “sustained irreversible cessation of all functions of the entire brain, including the brain stem, shall be declared dead.”25 Flowever, unlike other states, the New Jersey statute allows for a categorical exception26 for a reli gious objection to brain death. The New Jersey statute states that: [t]he death of an individual shall not be declared upon the basis of neurological criteria ....when the licensed physi cian authorized to declare death, has reason to believe, on the basis of the information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual, in these cases, death shall be declared . .. solely upon the basis of cardio-respiratory criteria...27 Summarizing, the New Jersey Declaration of Death Act provides that “the death of an individual shall not be declared upon the basis of neurological criteria when . . . such a declaration would violate the personal religious beliefs of Seminars in Neurology
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the individual.”27 Although the statute does not define what qualifies as a legitimate religious belief, it seems that upon the assertion of any plausible religious claim, death shall be declared “solely upon the basis of cardio-respiratory criteria.” New York
New York judicially recognize brain death as legal death in 198428 and in 1987, the New York Department of Health (NYDOH) adopted this standard into its administrative reg ulations.29 But the NYDOH did more than formally recognize brain death, as it also required hospitals to accommodate religious or moral objections to brain death. In 2011, the NYDOH confirmed that the New York accommo dation requirement is not a categorical exception like the New Jersey accommodation requirement. Instead, New York hospitals must merely “establish written procedures for the reasonable accommodation of the individual’s religious or moral objections to use of the brain death standard” when such an objection has been expressed by the patient or surrogate.30 In further contrast to New Jersey, the NYDOH accommodation requirement extends not only to religious, but also to moral objections. Although the range of objections may be broader, the duty of accommodation is less demanding. The NYDOH allows hospitals significant discretion in designing their own accom modation policies. The New York statute has been involved in at least two prior court decisions.31-33 In one, the court found in favor of the hospital in a disagreement over whether the African American, born-again Christian parents of a young child had been provided proper religious accommodation as required under New York law.33 In the second case, the court held that the hospital could terminate intensive care “support” for a young child who met the brain death guidelines set out in the New York statute.31 The parents, who were Jehovah’s Witnesses, argued that the New York statute was unconstitutional both because it in fringed on the baby’s right to live and because it failed to includes a mechanism for challenging the hospital’s determi nation of brain death. However, the court held that the statute was constitutional and determined that the hospital was in compliance with applicable state statutes. Three months later, an appeal was dismissed when the hospital determined the infant was not dead after all. In formulating its holding, the court acknowledged earlier case law in New York when stating that “[i]f a person is dead, there is no life to be deprived of, with or without due process of law. From time immemorial, physicians have determined when persons are dead and have ceased giving medical treatment.... It is not a denial of due process to have physicians, rather than parents or next of kin or close friends, determine that death has occurred.”31 In their final decision, the court extended the order restraining the hospital from discontinuing life support systems for 7 days to allow the family time to seek out a another facility willing to take the child. California
California first acknowledged brain death in 1974 and again in 1982 by adopting the Uniform Determination of Death Act.34 Seminars in Neurology
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But in 2009, a new California statute extended obligations of hospitals with respect to patients declared dead on the basis of neurologic criteria alone.35 The California statute requires that general acute care hospitals adopt a policy for providing family with a “reasonably brief period of accommodation” after a patient is declared dead by reason of irreversible cessation of all functions of the entire brain. California requires not only accommodation of moral or religious objections, but also accommodation of all types of objections. Although broad in the types of objections covered (e.g„ religious, moral, psychological), the California duty of accom modation is limited in several other material respects. First, during this “reasonably brief period of accommodation, a hospital is required to continue only previously ordered cardiopulmonary support.”35 “No other medical interven tions are required.”35 Second, the “brief period” is narrowly defined as only “an amount of time afforded to gather family or next of kin at the patient’s bedside.’’36 In other words, the California duty of accommodation is finite. On the other hand, the duty to accommodate may be more demanding if the patient’s family voices any “special religious or cultural practices and concerns.”37 In that case, the hospital must make “reasonable efforts to accommodate those reli gious and cultural practices and concerns."37 Because this duty is not limited to a “reasonably brief period,” it is probably similar to the duty to accommodate under New York law.
Court Activity As described in the last section, most legal developments concerning brain death have been legislative and regulatory to date. But there has also been significant judicial activity. Court cases have taken five basic forms: (1) families seeking physiological support after brain death, (2) families seeking damages for intentionally premature brain death, (3) families seeking damages for negligently premature brain death, (4) families seeking damages for emotional distress, and (5) pregnancy limitations on brain death. Families Seeking Physiological Support after Brain Death
Families regularly bring lawsuits seeking injunctions man dating continued physiological support. But courts almost never grant permanent injunctions.38 Instead, more com monly, courts grant only temporary restraining orders that preserve the status quo until more evidence can be gathered. In some of these cases, the family has religious objections,22 or just distrusts the diagnosis.32 Two recent cases, both involving children, serve as examples. Jahi McMath (Oakland Children’s Hospital, California)
In December 2013, a 13-year-old Oakland, California child (Jahi McMath) suffered from respiratory complications fol lowing a tonsillectomy and adenoidectomy. The hospital claimed that Jahi McMath was legally dead after two neuro logic assessments by its medical staff. As the child was no longer living, the hospital maintained that it was no longer obligated to continue providing medical care at the family’s
Brain Death: Legal Obligations and the Courts
request. The family claimed that their child was not dead because she had a continually beating heart and was moving in response to touch. They demanded that the hospital continue to provide medical care, including ventilatory sup port, in hopes that she might still recover. Some 22 days after the original diagnosis of brain death, the Alameda County Superior Court announced that the family and hospital had come to a partial agreement.23 The agreement specified that an outside medical team could remove Jahi McMath from the hospital and that her mother would take full responsibility for her body during its relocation to another facility. In early January 2014, the McMath family removed Jahi's body from the hospital to a facility in New Jersey.39 The family is reported to be seeking to revoke Jahi’s California death certificate, so that Jahi will qualify for medical benefits.40 Issac Lopez (Kosair Children’s Hospital, Kentucky)
On June 29, 2014, 2-month old Issac Lopez presented to the emergency department at a Louisville, Kentucky hospital with a skull fracture, rib fractures, respiratory failure, cardiac arrest, and blood and fluid pooling around his brain.41 Issac’s father was arrested for child abuse after admitting to having hit Issac’s head against the bathtub. Issac was admitted to the pediatric intensive care unit where the attending physician diagnosed Issac with total brain failure. At the family’s request, a second exam to confirm brain death was deferred for 48 hours to allow extended family members to arrive at the hospital. Two repeat examinations confirmed total brain failure. But the family did not accept the diagnosis. Issac’s mother then obtained a temporary restrain ing order. (In light of the pending criminal charges, Issac’s father suffered a material conflict of interest in making medical decisions for Issac. His objection to stopping physio logical support was impacted by his desire to avoid homicide charges.) The hospital then filed its own separate action asking the court to allow the removal of physiological support given that Issac was dead. Two additional examinations (one by the family’s independent medical expert) also confirmed total brain failure. At this point, there was no longer a factual dispute that Issac’s condition met the criteria for brain death. Still, Issac’s mother and a court-appointed guardian argued that the hospital could not stop Issac’s physiological support because parents have a constitutional right to make medical decisions for their children. They argued that because Issac’s parents had not had those rights terminated, they possessed sole decision making authority with respect to Issac’s medical care. The court rejected this position stating that “with death, no parental decision making survives (save decisions regarding burial).” Instead, the court found that because the criteria for brain death were met, Issac was “legally dead’’42 and there fore, the hospital had “no legal obligation to artificially maintain respiration, circulation or to render any other medical intervention or treatment."43 Cases Seeking Damages for Intentionally Premature Brain Death
One alarming allegation brought before the courts is that clinicians intentionally and deliberately confirm death by
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neurologic criteria before those criteria are actually met. The case below serves as an illustration. Gregory Jacobs v. CORE (Erie, Pennsylvania)
In 2007, a high school student sustained head injuries while on a school ski trip. In a federal lawsuit filed against the hospital and the area organ procurement organization, the boy’s parents alleged that they were asked to consent to organ donation even though death had not been determined and was not even imminent. Their claim included that had he been properly treated rather than “killed for his organs," he would have had a significant chance of recovery. Claims for battery, fraudulent misrepresentation, negligent misrepre sentation, and medical malpractice were asserted.44 In late 2012, the parties settled these claims for over $1 million.45 Cases Seeking Damages for Negligently Premature Brain Death
Although cases of intentionally and deliberately premature brain death are the most alarming, also concerning are those cases alleging negligently premature brain death. The case below serves as an example of this concern. St. Joseph’s Hospital (Syracuse, New York)
In 2009, clinicians at a Syracuse hospital declared Colleen Burns dead following a drug overdose. Despite several signs of responsiveness to stimuli, the hospital continued to prepare her for organ procurement. Then, just as surgery was about to commence, Burns opened her eyes in the operating room. The surgery was immediately canceled and Burns was released 2 weeks later. In 2013, the New York Department of Health fined the hospital $6,000 for improperly implementing brain death protocols. In addition, the Centers for Medicare and Medicaid Services (CMS) sanctioned the hospital for failing to undertake an “intensive and critical review of the event.”46 Cases Seeking Damages for Emotional Distress
In addition to court cases that seek continued physiological support and those requesting damages for premature brain death, there are still others seeking emotional distress dam ages. In these cases, families allege that clinicians were insensitive or outrageous in how they treated or communi cated with the family of the patient after brain death. The case below serves to illustrate this concern. Morgan Westhoff (Oakland Children’s Hospital, California)
In January 2013, 21-month-old Morgan Westhoff died at Oakland Children’s Hospital after alleged malpractice in repairing a blood vessel birth defect. Morgan’s parents did not dispute the brain death diagnosis. But they did state concern for the hospital’s management following their daughter’s diagnosis. First, the hospital had apparently lied about an autopsy, leaving the Westhoffs in “hours of cruel and unjust agony" as they waited with their daughter’s body for the coroner to arrive. Second, the family felt “betrayed, violated, and lost” when they learned no autopsy was ever conducted. Third, the hospital pressured the family with Seminars in Neurology
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“multiple aggressive requests” to donate Morgan’s organs. Fourth, the hospital sent repeated fundraising solicitations and surveys. A lawsuit was then filed for negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation.47 A hearing be fore the court is still pending as of the date of this writing. Pregnancy Limitations on Brain Death
Despite a general trend in the law allowing for maternal autonomy surrounding decisions about their health along with precedence providing step-by-step guidance as to how to decide on termination of medical treatment, many states continue to maintain pregnancy exclusions within their advance directive statutes.48 Currently, states are categorized into five classifications depending on their approach to the impact of pregnancy on life-sustaining treatment48: 1. Law automatically invalidates the advance directive (AD) of a woman when she is pregnant. 2. Law contains restrictions similar to the Uniform Rights of the Terminally 111 Act (URTIA), which requires that a pregnant woman be provided with “life sustaining treat ment” if it is “probable” that the fetus will reach the point of “live birth” regardless of a woman’s express wishes to the contrary. 3. Law considers fetal viability in determining enforceability of the AD. 4. Lawallows for writing of specific treatments in the ADthat the pregnant woman would accept. 5. Law is silent on the impact of pregnancy on the AD. One recent case illustrates the application of an AD statute pregnancy clause to a woman after brain death. Munoz v. John Peter Smith Hospital (Fort W orth, Texas)
On November 26,2013 at 2:00 a m , Marlise Munoz, a 33-yearold woman pregnant with her 14-week-old fetus, was found unconscious on her kitchen floor, where she had apparently collapsed almost 1 hour prior49-51 She was rushed to John Peter Smith Hospital in Fort Worth, Texas, where she was intubated and ventilated and managed in the intensive care unit. She was soon pronounced brain dead. Accordingly, her family (including her husband and her parents) requested that life support measures be discontinued.49 Although Marlise had not left any written directives regarding endof-life care, according to her husband, she had previously verbalized that “she did not want to have machines keep her body alive.’’50 Officials at the hospital, however, refused to withdraw life support, citing a Texas state law requiring them to maintain life-sustaining treatment for a pregnant patient. On January 24, 2014, almost 2 months after suffering her fatal event, State District Judge R.H. Wallace held that the statute concerning “life-sustaining treatment” did not apply to a patient who was dead. The judge ordered the hospital to terminate Munoz’s cardiopulmonary support.52 In the end, the hospital acknowledged that Munoz had been brain dead since November 28, 2013 and that her fetus was not viable.50,51 Seminars in Neurology
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Conclusions As reflected by the sample of cases above, although the concept of brain death has been accepted for decades, confu sion and conflict still arise. These disputes and uncertainties often require legal determination. Disagreements on such an emotionally trying topic as brain death will likely never go away. Families and clinicians will continue to petition the courts for resolution. It is imperative that hospitals and practitioners alike appreciate the history and nature of these disputes in hopes that they may better confront this issue, if and when it impacts their practice while also assisting families in their better understanding of brain death.
Acknowledgments
The authors wish to thank Ms. Janet Henderson for her technical assistance with this manuscript.
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Bel linger N, Jennings B, Wolf SM. The Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life. New York, NY: The Hastings Center; Oxford University Press; 2013:105-110 17 Douglas v. Janssen Funeral Homes, No. 2KB-09-173CI, 2010 WL 9069780 (Alaska Super. Ct. 19 Nov. 2010) (citing 4 cases) 18 Miller RD. Problems in Health Care Law. 9th ed. Sudbury, MA: Jones & Bartlett; 2006:765-775 19 Anderson JA, Vernaglia LW, Morrigan SP. Refusal of brain death diagnosis: the health lawyer’s perspective. JONAS Health Law Ethics Regul 2007;9(3):90-92 20 Clarke MJ, Remtema MS, Swetz KM. Beyond transplantation: considering brain death as a hard clinical endpoint. Am J Bioeth 2014;14(8):43-45 21 Uniform Law Commission. Acts, Anatomical Gift Act. 2006. Avail able at: http://uniformlaws.org/Act.aspx?title=Anatomical+Gift+ Act+(2006). Accessed October 24, 2014 22 In re Motl Brody, No. 1:08-CV-01898 (HHK) (D.D.C. 2008) 23 Stipulation re: Protocol for Possible Removal of Jahi McMath from Children's Hospital CASE NO. RP13707598: Submitted to the Superior Court of California, County of Alameda. Available at: http://www.thaddeuspope.com/images/2014-01-03_Stip.pdf. Accessed October 16, 2014 24 Armstrong PW, Olick RS. Innovative legislative initiatives: the New Jersey Declaration of Death and Advance Directives for Health Care Acts. Seton Hall LegisJ 1992; 16(1 ):177-197 25 N.J. RevStat. 26:6A-3 26 Grodin MA. Religious exemptions: brain death and Jewish law. J Church State 1994;36(2):357-372 27 N.J. RevStat. §26:6A-5 28 People v. Eulo, 63 N.Y.2d 341 (N.Y. Ct. App. 1984) 29 10 N.Y.C.R.R. §400.16(1987) 30 New York State Department of Health and New York State Task Force on Life & the Law. Guidelines for Determining Brain Death. Nov. 2011. Available at: http://www.health.ny.gov/professionals/ hospitaLadministrator/letters/2011/brain_death_guidelines.pdf. Accessed October 14, 2014 31 Alvarado v New York City Health & Hosp. Corp., 547 N.Y.S.2d 190 (N.Y. Sup. Ct. 1989); vacated 157 A.D.2d 604 (1990) 32 Burkle CM, Schipper AM, Wijdicks EF. Brain death and the courts. Neurology 2011 ;76(9):837-841 33 In the Matter of Long Island Jewish Med. Center, 641 N.Y.S.2d 989 (N.Y. Sup. Ct. 1996) 34 Cal. Health & Safety Code §§ 7180-81 35 Cal. Health & Safety Code § 1254.4(a) 36 Cal. Health & Safety Code § 1254.4(b) 37 Cal. Health & Safety Code § 1254.4(c) 16
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38 Pope TM. Involuntary passive euthanasia in US courts: reassessing the judicial treatment of medical futility cases. Marquette Elder’s Advisor 2008;2:229-268 39 Ioffee K, DeBolt D. Jahi McMath being kept at New Jersey Hospital. Mercury News 2014. Available at: http://www.contracostatimes. com/news/cL25992853/jahi-mcmath-being-kept-alive-at-newjersey. Accessed February 15, 2015 40 Winkfield v. Children's Hospital, No. PR13-707598 (Writ of Error Corum Nobis and Memorandum Regarding Court’s Jurisdiction to Hear Petition for Determination that Jahi McMath Is Not Brain Dead) 41 In re Issac Lopez, a Minor, No. 14-CI-354 (Jefferson Circuit Court, Kentucky 22 July 2014) (Order). 42 Ky. Rev. Stat. § 446.400(2) 43 Galofaro C. Brain-dead baby taken off life support. Courier Journal; 2014 44 Jacobs v. CORE, No. 1:09-CV-00048-SJM (W.D. Pa. 23 Aug. 2012) (trial brief) 45 Jacobs v. CORE, No. l:09-CV-00048-SJM (W.D. Pa. 6 Nov. 2012) (Petition to Obtain Approval of Settlement) 46 O’Brien J, Moulder JJ. St. Joseph’s ’dead’ patient awake as doctors prepared to remove organs. Syracuse Post-Standard; 2013 47 Westhoff v. Children’s Hospital and Research Center of Oakland, No. RG14721095 (Alameda County Sup. Court, Calif. 11 Apr. 2014) (Complaint) 48 Greene M, Wolfe LR. Pregnancy exclusions in state living will and medical proxy statutes. Available at: http://www.centerwomenpolicy.org/programs/health/statepoIicy/documents/REPRO_PregnancyExclusionsinStateLivingWillandMedicalProxyStatutesMeganGreeneandLeslieR.Wolfe.pdf. Accessed July. 21, 2014 49 Munoz v.John Peter Smith Hospital. Plaintiffs original petition for declaratory judgment and application for unopposed expedited relief cause No. 017-270080-14. Available at: http://thaddeuspope.com/images/Munoz_v._JPSJan_2014_.pdf. Accessed July 21, 2014 50 Hellerman C, Morris J, Smith M. Brain-dead Texas woman taken off ventilator. Available at: http://www.cnn.com/2014/01/26/health/ texas-pregnant-brain-dead-woman/index.html?iphoneemail. Accessed July 21, 2014. 2014 51 Chappell B. Judge tells hospital to take pregnant woman off life support. Available at: http://www.npr.org/blogs/thetwo-way/ 2014/01/24/265785603/judge-teIls-hospital-to-take-pregnantwoman-off-life-support. Accessed July 21,2014 52 Munoz v.John Peter Smith Hospital, Tarrant County, Texas District Court Order Cause No. 096-270080-14. Available at: http://thaddeuspope.com/images/MUNOZ_202053415-Judges-Order-onMunoz-Matter.pdf. Accessed July 21, 2014
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