By Mike Appleton, Weekend Blogger
In 1882 a man named John Kirchbaum submitted a patent application for a device which, when properly attached to a coffin, permitted the presumed deceased person to communicate to those on the surface that the burial had been premature. That someone would consider the erroneous pronouncement of death sufficiently common to support a market for such products strikes one as peculiar today, but the fear of possibly being buried alive was genuine in the 18th and 19th centuries. Until quite recently, after all, a determination of death was made solely by observation. Was the subject breathing? Did he have a heart beat? Under the common law, death was in fact defined as the irreversible cessation of circulatory and respiratory functions.
But in the 20th century two revolutions in medical technology changed attitudes and definitions. The first was the invention of the mechanical ventilator, originally intended to help patients breathe during surgery. The second was the development of anti-rejection drugs and their impact on the science of organ transplantation. The medical community quickly came to realize that continuing to provide oxygen to a deceased person greatly improved the viability of organs needed for transplant purposes. These advances created an obvious ethical and legal dilemma. A living person may agree to donate a kidney to save another’s life because we have two of them. However, other vital organs may only be removed upon the donor’s death. And if respiration is maintained to preserve organs after the donor has “died,” what has happened to our traditional definition of death? How can a person be deemed deceased if his or her breathing is being mechanically maintained?
The answer to the dilemma was the concept of “brain death,” the irreversible cessation of all functions of the entire brain. In 1968 a study committee at the Harvard Medical School created a set of guidelines indicative of what was termed “irreversible coma”: the persistence over a period of 24 hours of a set of conditions including absence of spontaneous breathing or movement, fixed and dilated pupils, unresponsiveness and the absence of reflexes. Twelve years later the National Conference of Commissioners of Uniform State Laws proposed the Uniform Determination of Death Act, which defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”
The Uniform Determination of Death Act was approved by the AMA in the fall of 1980 and by the ABA early the following year. Since then it has been adopted by 37 states and the District of Columbia. Of the remaining states that have not formally adopted the UDDA, most have incorporated its definition of brain death into their statutes. It is clearly the prevailing law on the issue in this country.
And that brings us to the case of Marlise Munoz.
In November of last year, Mrs. Munoz was discovered lying unconscious on her kitchen floor. She was rushed to the John Peter Smith Hospital in Fort Worth, where doctors were unable to revive her. She was placed on a ventilator and tests confirmed that she has no brain function. Although a pulmonary embolism is suspected, the precise cause of her condition is not yet known. Under Section 671.001 of the Texas Statutes, a person is dead when “there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions.” When those functions are being mechanically maintained, death is determined by whether “there is irreversible cessation of all spontaneous brain function.”
According to her husband and her parents, Mrs. Munoz had discussed end-of-life issues with her family and it was her wish that she not be connected to life-support equipment if her condition were irreversible. The family has requested the hospital to disconnect the equipment, and the hospital has refused. Why? Because Mrs. Munoz was 14 weeks pregnant at the time of her hospital admission, and the Texas statutes governing advance care directives contains Section 166.049, which provides that “A person may not withdraw or withhold life-sustaining treatment under this sub-chapter from a pregnant patient.” In essence, the hospital is keeping Mrs. Munoz on life-support although she is clinically deceased and over the objections of her family in order to comply with one of Texas’ anti-abortion laws.
The Munoz case raises troubling questions of both logic and constitutionality. Thomas W. Mayo, a bioethicist at the Southern Methodist University School of Law, succinctly addressed the logic issue. “If she is dead,” he said, “I don’t see how she can be a patient, and I don’t see how we can be talking about treatment options for her.” Dr. Robert Fine, clinical director of the office of clinical ethics with the Baylor Health Care System, agrees. “This patient is neither terminably nor irreversibly ill. Under Texas law, this patient is legally dead.” That reasoning is apparently unconvincing to hospital officials. “Every day, we have patients and families who must make difficult decisions,” responds Jill Labbe, a hospital spokesperson. “Our position remains the same. We follow the law.”
Regardless of the hospital’s position, the statute is clearly unconstitutional, at least as applied to this case. Under the decision in Roe v. Wade, 410 U.S. 113 (1973), the state may not impose severe restrictions on a woman’s right to terminate a pregnancy prior to fetal viability. The Texas statute contains no limitations on its applicability. The Texas Alliance for Life, however, as well as other abortion opponents, argue that life-support should be continued for a pregnant woman, even if she is legally dead, effectively turning a corpse into an undead incubator. That rationale, of course, would support a statute mandating life-support for any individual possessing usable organs pending their harvesting.
The Munoz family filed suit last week in the Tarrant County court challenging the hospital’s decision. It is of no consolation to the Munoz family, but perhaps the courts will issue a decision that prevents this shameful episode from being repeated.
The Texas law and its application here is not about the fetus it is about showing women who really has control over their bodies alive or dead. It disgusting.
In California the maximum hospital liability for death of a child is $250,000. On the other hand, if the child survives, the hospital faces potentially tens of millions of dollars in life long care. In other words, the hospital has a pretty big financial incentive to declare a child dead. This is really what the McMath case is all about.
The idea of brain death evolved from the late 19th century, well before any organ transplantation was ever done.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2652772/
There have been recorded cases of patients coming back to life after cardiac death; it is a rare occurrence but it does happen, unlike brain death. There have been no recorded cases of people coming back to the life after actual brain death, as long as doctors follow the established guidelines for examination.
i’m guessing mrs. munoz insurance company is going to disallow payment because of a pre-existing condition.
what, michele malkin survived brain death.
define “survived”
I had one case when I worked the road where a man was driving about 90+mph when he failed to negotiate a curve and went off road. The ensuing rollover ejected him and he flew over 150 feet and landed on an adjoining highway, suffered severe head trauma. I arrived on scene about 10 minutes after it happened. When I checked the driver he was unresponsive, not breathing, and had no pulse. I checked his eyes (it was at night) with my flashlight and there was no response at all. In all my experience there was never a time given these conditions where a person survived in this condition.
Unexpectedly, when I was just getting ready to call dispatch to inform the county coroner’s office the driver shuttered suddenly and began breathing and then had a pulse. He never regained conscious however and he later died in hospital. His BAC level was determined to be a .315.
While this is only one event and I obviously did not have the monitoring equipment in the field to see where the driver was really at I can see how it is possible for unexpected results to happen. But I have to agree I have never heard of a person recovering from complete brain death.
Michele Malkin’s cases notwithstanding, you do not strike me as a person who would reverse, even if you were to learn of a person who survived a pronouncement of brain death. MCMath was brain dead only because someone said she was brain dead. In China they harvest organs at the firing squad. In the US they harvest organs with a pencil on your medical chart.
RWL:
You cited a propaganda piece. In each of the instances related in the article, there were responses by the patient to external stimuli, all of which preclude a determination of brain death. It is not the standards for that determination that are suspect, but the manner in which they are applied. A diagnosis of brain death may certainly be wrong, and tragically so. But that is a failure to conform to prevailing medical standards, also known as malpractice.
Mike A.,
Here’s the point (and I have to give credit to Samantha for bringing this up): Can she ‘come back to life’? Is this a misdiagnosed or malpractice case, if she comes back to life? How many weeks, can she be on life support, before the hospital (or her husband’s insurance) says: ‘she is not coming back, let’s pull the plug’?
I do understand the husband’s point of view, but why would he not want to get a chance to see if the child survives and his wife? If I was the husband I would never give up, if the fetus is still alive (regardless of the medical bills heading my way).
samantha:
Michele Malkin’s column is meaningless. There are plenty of tests available to determine brain death. The McMath case is tragic because the family has been unable to accept the determination. However, you will note that their wishes were ultimately honored and their child remains on life support. In the second case, Malkin notes that the patient responded to a test of his reflexes, which means that he was not brain dead. A person can be in a coma without being brain dead. That was the case with the second victim.
In the case I wrote about, the family has not been allowed to make any decisions. Why are you prepared to agree with the McMaths when they dispute the medical determination, but disagree with the Munoz family’s decision to dispute the hospital’s actions? Who should be permitted to make the ultimate decision on death? What would you use as the criteria?
You totally missed one of Michele Malkin’s cases. Aside from McMath, she cited two cases.
RWL
The comment got snagged by the spam filter because it contained more than two hyperlinks. I edited it to conform to this and it is shown above. You can avoid this issue by posting only two links per comment. If you need to have more for your comment you can just put those into another comment.
Permit me to be a bit flippant here. In the topic above this I commented on the mindset of Congressmen and women. Someone like Diane Feinstein is 80 years old and walking the halls of Congress and speaking as one. Yet by her logic she must be brain dead. She can walk and talk but jeso. Look what she is saying about NSA and Snowden.
wordpress ate my last comment 🙁
It doesn’t seem that they care for nor about the Grandchild she’s leaving behind, or at least could should they allow the baby to come to full term birth. Sad indeed for either side of this type of legal argument, I would want my unborn child to have a chance to live if it were me. But am sure there are also bills to be considered and religious beliefs as per burial etc.
Here are two cases of victim surviving brain death:
http://www.mydesert.com/article/20140102/OPINION01/301020034/Michelle-Malkin-gifts-Jahi-McMath?nclick_check=1
Samantha,
Interesting article! Here’s another one, but I guess you have to also consider the credibility of the article(s), as well.
SURVIVORS OF BRAIN DEAD PROVE IT’S A MEDICAL FALLACY (http://ezinearticles.com/?Survivors-of-Brain-Death-Prove-Its-a-Medical-Fallacy&id=7200980)
by Ken Higgs
Dr John B Shea, retired diagnostic radiologist & fellow of the Royal College of Canada, says: “A diagnosis of death by neurological criteria is theory, not scientific fact”. He was talking about so-called “brain death”, a medical concept invented in 1968 by Harvard Medical School to allow the retrieval of vital organs from still living patients.
Dr Paul A Byrne, neonatologist and pediatrician, says: “In order to be suitable for transplant, (heart, liver, lungs, kidneys and pancreas) need to be removed from the donor before respiration and circulation cease. Otherwise, these organs are not suitable, since damage to the organs occurs within a brief time after circulation of blood with oxygen stops.”
Friends… there is growing evidence that “brain death” is a medical fallacy, which cannot be accurately diagnosed. There is a growing number of patients who were declared “brain-dead”, only to later spontaneously revive and live. Here are some actual survivor cases:
Zach Dunlap, a 21 year old Oklahoma man, was “feeling pretty good” four months after he was diagnosed as “brain dead”. Zach suffered severe brain injuries in a quad bike accident in Texas in 2007. He was declared “brain dead” and prepped for organ donation. But minutes before surgery commenced, he spontaneously revived when a concerned friend scratched his foot. Zach later told a TV show that he heard the doctors pronounce him dead, but was unable to do anything about it.
Steven Thorpe, 17 year old Warwickshire youth, was declared “brain dead” by four doctors in 2008, but his parents did not give up on him, and insisted on another opinion from an independent GP and a neurosurgeon. Steven made an unexpected recovery and left hospital alive seven weeks later. He had suffered severe head injuries during a major collision between a car in which he was travelling and a runaway horse.
Rae Kupferschmidt, 65 year old Minnesota woman, suffered a massive cerebral hemorrhage in 2008 and doctors diagnosed her as “brain dead”. She was taken home to die and her family began making funeral arrangements. When Rae spontaneously sucked an ice cube offered by her daughter, she was found to be alive. She later walked.
Gloria Cruz, 56 year old Northern Territory woman, was declared “brain dead” in 2011 and expected to ‘die’ within 48 hours. A doctor, a social worker and a ‘patient advocate’ urged her husband to remove the ventilator and let her ‘die’. But he refused and 3 days later, Gloria revived, awoke from her coma and was getting around hospital in a wheelchair.
Clearly these survivor cases prove that “brain death” is a highly questionable concept that is putting lives at risk.
Don’t abandon brain-injured people. Say “NO” to organ donation. My website, OrganFacts.net, is aimed at exposing the truth about organ donation and organ transplants, and the clear danger that industry presents to brain-injured people.
Why not find out more at: OrganFacts.net.
Article Source: http://EzineArticles.com/7200980
I wonder if it is even medically possible for a fetus this young to survive under conditions that are inherent in keeping the mother alive in this manner. There are going to be medical defects at the medical limit. Are the nutritional injectoins going to provide the fetus with folic acid to prevent spinal bifida and the litany of all trace and substantive life supporting elements to assure full and healthy living for the child? It doesn’t seem to me this would be possible.
On a financial end, I would assume from that point forward (after the decision to withdrawl life support was received by the hospital and after the expected time for the woman to perish) the patient’s estate and/or their insurance company should be off the hook for making payments on future bills. The hospital should be liable for this or maybe the state depending on their laws. I wonder if the hospital would change their minds if it was established they were liable.
Aside from the financial issue I agree this is medically unethical to continue this issue. I am not very familiar with the times involved but I would think a fetus of this age would not be viable and I can’t imagine what would be required to sustain this under the care of a premature birth.
rafflaw:
I expect the family to be billed.
That is an amazing story Mespo. If the woman is dead, will the family be required to pay for the attempted incubation of the fetus? Disgusting.
samantha:
No one has ever “recovered” from brain death.
RWL:
The hospital hasn’t said, but presumably they plan to keep her on a respirator until they believe they can perform a successful C-section.
The human body is a miraculous marvel. There’s no way to know for certain that lack of brain waves means death, anymore than anyone has proof that a soul isn’t immortal. I always remind myself of the child who fell through the ice, was underwater for 90 minutes, without brain waves, not only survived but fully recovered. And just during the past week, I’ve learned that there are others who have survived brain death. How many patients have been murdered by ‘rush to judgement’ lab-coated psychopaths, to further the lucrative transplant industry?
Question(s): Is the fetus dead? If not, then how long do they (Texas officials and/or hospital administration) plan on keeping the ‘dead woman/mom’ viable or breathing to the benefit and/or detriment of the fetus? Until the fetus is able to live outside of the womb (20+ weeks)? What’s their (Texas officials and/or hospital staff) game plan?