What Brain Death is Not
The Declared Right to Life
The conversations that happen as a result of determining the medical status of a brain death patient require integrity and prudent reasoning, relying on an agency agreement, which doctors provide without their personal input, values or religious beliefs.
These rights are declared under America’s founding documents with regard to their declared unalienable rights to life under the legal burden of proof that medical recovery is beyond all reasonable doubt.
Because the patient’s fundamentally declared right to life is unalienable, there is no governmental law, interpretation of the law, treaty, or subservient commercial business rights that can negate the patient’s fundamental and declared right to life—not even a justification based on a cost measure for supportive comfort care. The rule of the law must provide all legal citizens equal rights no matter how reduced their life becomes.
Analyzing the Definitions
Some definitions of brain death, including Organtransplant.org, state that a patient never really becomes brain dead because they retain some minor brain stem function. According to this definition, if any part of the brain stem remains scientifically and physiologically alive and working, and if the body has neurogenic heart rate control, maintains a normal blood pressure, produces hormones by way of the hypothalamic-pituitary axis, as well as controls other bodily functions, then the brain stem physiologically has controlled function, and life exists.
According to medical ethicist Dr. Robert Butcher, when deciding the medical futility for ventilator patients, it is important to look at the intended result. He states, “if the intention is to in any way cause or hasten the death of the patient it is morally wrong.”
According to part two of the UDDA, there must be medically determined physiological and scientific proof that there is beyond all reasonable doubt, “irreversible cessation of all functions of the entire brain, including the brain stem.” Supporting the neurological standard of whole brain death (also known as total brain failure) includes the brain stem, as stated in the UDDA and the dead donor rule guidelines (DDR).
In 2014, the President’s Council on Bioethics (PBCE) restated their 2009 conclusion to “reject the use of patients in permanent vegetative states as organ donors.” To date, science still has not been able to determine the line between life and death, and has no widely accepted idea on how memories are truly stored in the brain, if there is any conscious thought, or how much of the brain can be destroyed while still maintaining identity.
The PBCE states:
“We do not know with certainty the borderline between life and death, and a definition cannot substitute for knowledge. Moreover we have sufficient grounds for suspecting that the artificially supported condition of the comatose patient may still be one of life, however reduced i.e., for doubting that, even with the brain function gone, he is completely dead. In this state of marginal ignorance and doubt the only course to take is to lean over backward toward the side of possible life.”
A 2012 lawsuit in New York claims “at least one in five patients declared ‘brain dead’ and approved as ‘organ donors’ by one organ donation organization, are in fact still alive and are being killed by the removal of vital organs…”
Medically Published Cases of Brain Death Recovery
Despite all the conflicting reports and opinions for and against brain death—which is a state of diminished mental capacity, and the most basic and vulnerable level of human existence—there have been medically published cases of brain death recovery.
It is well known and historically documented that patients, both adults and children, in deep irreversible coma, according to the UDDA brain death definition, can live for years if they are supported technologically.
Dr. Robert D. Truog, M.D., Harvard Medical School/Boston’s Children’s Hospital, and Franklin G. Miller Ph.D., Department of Bioethics, National Institutes of Health, state, “Evidence shows that if these patients are supported beyond the acute phase of their illness, they can survive for many years.”
In an article titled “Should mechanical ventilation be continued to allow for progression to brain death so that organs can be donated?,” Michael Parker and Sam D. Shemie, state, “Extending ventilation would allow recovery of vegetative brainstem function.”
This view was also re-confirmed by the 2014 PCBE when they publically stated, “Moreover we have sufficient grounds for suspecting that the artificially supported condition of the comatose patient may still be one of life, however reduced…”
To date there is no information on adult brain death recovery, except the one published case in the UDDA. Of the published cases of brain death reversal, medical outcomes were poor. There have been no studies conducted as to recovery rates of adults and the length of recovery time required under this definition. Why? According to the 2009 PBCE, adults can be “pronounced dead before the heart stops beating …”
This leads to the question, if no adults have recovered, have the patients been removed too quickly from life support? It is possible that by mislabeling a living person as “dead” based on the physician’s personal beliefs and values regarding reduced life, that we are committing a disservice to life support patients.
A physician’s logic, which may include thinking “you would not want to live that way,” can cloud the way others, including family members, interpret the hope of the medical situation. Justifying the recycling of vital organs obtained from 50 to 70 year old “brain dead” patients to perform organ transplantation with the knowledge that 78.6 percent of all transplant recipients died after transplantation, is what the PBCE states was the “impoverished view of what it is to be a (living brain injured, deep coma, reduced life) human being.”
Robert M. Sade, M.D. in his article “Brain Death, Cardiac Death, and the Dead Donor Rule,” states:
“… as new sophisticated technologies have shown unsuspected cognitive function in patients believed to be permanently unconscious. Moreover, there have been major advances in recent years in treating brain injuries, which could eventually lead to the recovery of some such patients. There seems to be no sense in which a patient who is permanently unconscious could be understood to be dead.”
Integrity plays a great role in the final outcome for a deep coma patient. It should be remembered that just like deep irreversible coma, medically induced (deep) coma is an effort by doctors to give protection against secondary injury to any healthy areas of the injured brain and is “an effort to rest the brain so it requires less blood, oxygen and glucose,” says Dr. Lee Schwamn of the Massachusetts General Hospital, and Dr. Marc Mayberg of the Seattle Neuroscience Institute.
Before being pronounced brain dead, the patient retains his/her rights under the law, but because the patient is unconscious, it is the doctor—not the family—who controls any outcome for the patient under the signed agency agreement for treatment, unless there is a court order or other medical legal directive in place.
This very fact makes it most important that doctors perform their duties to the patient in an ethical manner with regard of non-maleficence “primum nonnocere” and the principal of beneficence “salusaegroti suprema lex.”
Removal of life support ventilation requires integrity under agency to the patient, his moral and legal rights, values and beliefs as well as that of the his family. Medical futility, or waste, is not the same as personal futility, according to Canadian ethicist Dr. Robert Butcher.
Butcher states that “it is important to look at what is the intended result. If the intention is to in any way cause or hasten the death… it is morally wrong.”
This is when the family or relative will be asked to sign a Do Not Resuscitate (DNR), which allows withdrawal of all medical care. Here is where the doctor must obtain true informed consent. Informed consent can be defined as an agreement to do something, or to allow something, to happen only after all the relevant facts are disclosed.
If the breathing tube is removed and the patient makes any attempt at respiration, the patient has brain stem function, and the patient is alive.
Preserving Your Rights as a Family Member
When one is placed in the midst of a brain injury or brain death situation of a loved one who has left no medical directives, it is advisable and prudent to contact an attorney to preserve any family rights. A medical directive is a:
- Signed guardianship
- Durable power of attorney
- Living will
- Life directive
- Signed organ donor card
- Life guardian card
Without court intervention the doctors retain all legal decision-making rights. Doctors assuredly will always do all they can to save the patient. The question that should be asked is, is there any residual brain stem activity?
If any brain stem activity exists, then reduced life biologically exists. Take your time. Look at all of the brain tests performed, including any scans. Request a life advocate, and a religious advisor, as they can offer guidance to you and your family during these trying times.