Why Is Brain Death Death? A Thought Experiment

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by James Zisfein, M.D.
Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

The Munoz case in Texas demonstrates that, with aggressive medical treatment, vital functions in some brain-dead patients can be maintained for weeks or months. Shewmon documented similar cases and coined the term “chronic brain death”. Is it still reasonable to continue using the brain death standard as a criterion of death if the rest of the body can maintain somatic integrative functions, including cardiovascular homeostasis, for a prolonged period without the brain? Some commentators question whether the “enduring utilitarian legal fiction of whole brain death as death has passed its sell by date.”

Notwithstanding those concerns, I must remind the reader that, as a practical matter, the brain death standard usually works well. Families understand the finality of death. The brain death standard allows for unilateral removal of medical support in what many of us feel is an extreme example of futility. It also provides the major source of vital organs for transplant, of which I will have more to say later. I’m happy with justifying brain death on utilitarian grounds alone.

But if we insist on philosophical underpinnings, it’s time for a thought experiment. In this experiment, I will dismember Michelle (virtually, of course, and with her permission). Let’s start by removing relatively unimportant parts, say the appendix, some lymph nodes, maybe the spleen. After doing that, we can agree (I hope) that Michelle is still Michelle.

Then we go for more important stuff. Arms and legs? No problem. Kidneys? We can substitute for their function with dialysis or a transplant. Michelle is still 100% Michelle. The removed parts are therefore irrelevant to Michelle’s personhood.

We’re not finished yet. Michelle’s heart can be removed and replaced with a donor heart, or a mechanical pump. (So much for the cardiac definition of death.)

You know where I’m going with this. The only body part that can’t be removed or replaced without changing its owner is the brain.

If we could remove Michelle’s brain and replace it (horrors!) with my brain, the resultant person would be me, with body parts that used to belong to Michelle. If we replaced Michelle’s brain with a computer, we would have a robot (albeit a rather fleshy and bloody one). In either case, Michelle would be gone.

It’s a short leap from this thought experiment to the realization that the irreversible loss of the brain, or its functions, is the irreversible loss (i.e., death) of the brain’s owner.

A less grisly argument, also based on personhood, would begin with a stipulation that all human beings are mortal. We are not allowed — by definition or otherwise — to convey immortality. That means we must always have some way of determining death.

With improving medical technology, that could become impossible. Absent a brain death standard, we could — at least in theory — keep someone alive indefinitely by continuing to change parts as they fail. Everything (other than the brain) that is vital could be substituted for, including the heart. Dr. Jarvik (of the Utah/Humana artificial heart project) boasted that his artificial heart could keep working for 300 years. After that? Put in another one, presumably an improved model. Voila, immortality. Not acceptable. The risk of “chronic brain death” that Shewmon cited, is, paradoxically, a good reason for having a brain death standard.

And we must consider the utilitarian importance of brain death for organ donation. Whistling past the graveyard: that’s how I would characterize ending the brain death standard of determining death, without (1) prior abolition of the “dead donor rule” (which states that vital organs can be taken only post-mortem) and (2) seeing how many pre-mortem donors that yields. I believe there would be strong resistance to ending the dead donor rule anywhere, let alone all 50 states, and that the number of pre-mortem vital organ donations would be small even if it were permitted.

Removal of the brain death standard, in the absence of legal and widely practiced pre-mortem organ donation, would likely cause thousands, perhaps tens of thousands of deaths on the organ waiting list. Allowing that calamity for the sake of ethical purity would place one’s ethics on a par with the Khmer Rouge.

For now, and for the foreseeable future, brain death is a criterion of death. It’s up to those of us who work in health care, ethics, and law to speak with clarity when communicating on this topic to the media, to courts, to bereaved families, and to our colleagues.


Keep Your Head in the Game

by Sean Philpott, Director of the Center for Bioethics and Clinical Leadership

My hometown 49ers will not be playing in this Sunday’s Big Game. Despite my disappointment, I nevertheless will be joining millions of my fellow Americans in the hallowed tradition of watching the Super Bowl. I will put my feet up on the coffee table, drink a beer or two, and cheer on the Denver Broncos as they face off against the Seattle Seahawks. I will also cringe every time the quarterback is sacked or a wide receiver is brutally tackled, imagining the lasting damage caused to both body and mind.

The problem, of course, is concussions. A concussion — known clinically as an MTBI, or mild traumatic brain injury — occurs when a blow to the head or body, a fall, or some other impact causes the brain to smash into the skull. Depending on the severity of the blow, symptoms can range from a mild headache, blurred vision and some disorientation to a loss of consciousness, convulsions and amnesia. Often these symptoms subside in a few hours, but they can last for days or even weeks.

Moreover, the long-term effects of repeated concussions — common in football, hockey, boxing and other contact sports — are still unknown but seem to be associated with an increased risk of dementia, Parkinson’s, and mood disorders later in life. In some cases, patients may be diagnosed with chronic traumatic encephalopathy (CTE), a neurodegenerative disease whose symptoms include tremors, impaired speech, deafness, and profound clinical depression. In one study of men who had histories of repeated concussions, 80 percent showed evidence of CTE. Most of these men were former football players.

The problem has become so pervasive that both the National Football League and the National Hockey League are facing a rash of individual and class action lawsuits filed on behalf of former players and their families. Those lawsuits contend that league officials knew about the link between repetitive concussions and neurodegenerative diseases for decades but never shared this information with the players.

In a 1994 Sports Illustrated article, for example, the head of the NFL’s Mild Traumatic Brain Injury Committee described concussions as “part of the profession” and “an occupational risk” of being a professional football player. Despite this admission, and despite mounting evidence linking frequent concussions with brain damage in later life, the NFL waited until 2009 to tighten up its rules on when a player can return to the field after suffering a concussion. Borrowing from the tobacco industry’s playbook, football league officials have also repeatedly said, including in Congressional hearings, that there is no connection between playing professional football and brain damage.

That strategy probably won’t work. Just as lawsuits against cigarette manufacturers lead to radical changes in the tobacco industry, lawsuits against the NFL and other professional sport leagues could lead to changes in the way the football, hockey and other games are played.

One class action lawsuit, brought by more than 4,500 retired football players against the NFL, was settled in August for $765 million. Most of that money would be used to provide medical monitoring, benefits and compensation for injured players, but $10 million would also be set aside to fund additional health and safety research. Earlier this month, however, US District Judge Anita Brody rejected that settlement. Judge Brody’s concern was that $765 million — an average of $170,000 per plaintiff — was inadequate.

In her ruling, Judge Brody expressed a concern that “not all retired NFL football players who ultimately receive a qualifying diagnosis or their [families] will be paid.” She’s probably right. Some health economists and insurance industry experts have estimated that the medical costs alone could top $2.5 billion.  Furthermore, the settlement could indemnify the NFL from future liability, leaving the rest of us to pick up the tab.

Unfortunately, time is running out for many retired players. I would not blame them, their families, the player’s unions, or Judge Brody for accepting a woefully inadequate settlement. Many of these retired players need medical treatment and care, and they need it now.

The real problem is the continued reluctance of the NFL and other professional leagues to take the problem of concussions seriously, rather than treat it as a PR problem to be solved. The proposed settlement includes the unfortunate disclaimer that it is not “an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.” It also doesn’t require any meaningful reforms in how the league, the teams and the players deal with concussive injuries on the field. There are no fines, for example, for teams, coaches or players that willingly ignore the rules on when an athlete can return to the field after suffering a concussion. Finally, it provides little support for additional research in preventing or treating mild traumatic brain injuries.

Until we tackle this problem head on, protecting the health and safety of our athletes will remain a sideline issue.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on January 30, 2014. It is also available on the WAMC website. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Musing about Munoz

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Jeffrey R. Spike, Ph.D.
Professor of Ethics and Samuel Karff Chair at the McGovern Center for Humanities and Ethics, UTHealth, the Academic Health Science Center for the University of Texas at Houston

Now that the legal and emotional drama has ended, it is a good time to think about what happened.

First, the legal and political forces in Texas showed a little more restraint than similar ‘pro-life’ forces in the Schiavo case.  Once a judge ruled that the Texas statue (TADA) did not apply, there was no appeal.  While less than a rock solid legal precedent, the ruling and lack of appeal should curtail future cases from proceeding down this path—hopefully in any state that has written a ‘pregnancy exclusion’ into their advance directives law.

Second, sad as the conclusion is, I doubt many people feel like two people died when the ventilator was stopped.  Rather, we have an interesting contrast that defines when a person’s life exists: the fetal life was not yet a person, and the deceased woman’s life was over and she was no longer a person.  No person died when they turned off the ventilator.

This interpretation helps us see why it was wrong to analyze the case as a situation where there once were two persons whose lives we hoped to save, and then only one person was left whose life we hoped to save.

Of course religious language likes to imbue objects with spiritual qualities.  It can make one sound deep, like a prophet.  But it can also mislead.  The terrible tragedy in this case occurred 6 weeks ago, on November 26.  All we have accomplished by keeping this pregnant woman in the ICU is to prolong the tragedy.

The one thing missing from every account was any ethics consultation service involvement.  Perhaps, like many hospitals, JPS has an ethics committee in name only, and there was never any ethics involvement.  In that case, the most important lesson might be the one that the Quinlan court taught us in 1976: do not go to court, keep these decisions at the bedside, and if you need help, ask for ethics involvement.

Would Marlise Munoz’s Fetus Have Survived? Should It Have?

This post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Michelle N. Meyer, J.D., Ph.D.
Assistant Professor and Director of Bioethics Policy, Union Graduate College-Icahn School of Medicine at Mount Sinai School of Medicine Bioethics Program

Had the hospital not relented and removed the ventilator from Marlise Munoz’s body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both “sides” of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the “unborn baby” was clearly on track to being born healthy—the truth is that we simply don’t know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Times juxtaposed reports about possible abnormalities in the Munoz fetus with the hospital’s stipulation about the fetus’s non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation’s newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that “[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable” (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated “non-viability” as a function of gestational age with “non-viability” as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital’s “concession” about “viability” in the first sense, above: 22-week fetuses are generally not considered viable.

But what about the health of the Munoz fetus, which Erick’s lawyers, in the midst of arguing for the ventilator to be removed, reported showed signs of being “distinctly abnormal“? There’s little point in speculating about what are at this point (and are very likely to remain) vague, second-hand reports of private medical records, and still less about the possible causes of any abnormalities, which may have been genetic. Rather, let me make two observations about relying on reports (even if verified) of fetal “abnormalities” to argue for the removal of the ventilator.

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Fetuses, Organs and Brain-Death

This guest post is part of The Bioethics Program‘s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Pablo de Lora, Ph.D.
School of Law, Universidad Autónoma de Madrid

One of the things that strikes me in the debate over whether a State has a sufficiently compelling interest in sustaining the physiological functions of a dead-brain pregnant woman in order to protect the life of the fetus, is that this very same rationale is not appealed to when we consider the many lives that are at stake when the deceased, or someone else — typically the next-of-kin — decides not to donate its organs after death. So, if the commitment of Texas — or any other State — with the protection of “human life” is sincere, if we can finally agree on that interest as being as compelling as to permit legislation restraining the woman’s right to refuse or terminate end-of-life care when she is pregnant, and their families’ right to bury or cremate their relative once it is pronounced legally dead, wouldn’t that rationale also legitimize the confiscation of dead-brain people in general in order to harvest their organs for the sake of saving the lives of others? I think coherence mandates so.

Actually, our reasons for such conscription in the case of organs’ harvesting are much more compelling than in the case of Marlise Muñoz if we take into account the fatal prognosis of the fetus, the experimental character of the continuation of pregnancy in a brain-dead woman, and the better expectations that we might nowadays have when we transplant organs.

[Cross-posted at Bill of Health]

The Concept of Brain Death and the Tragic Cases of Marlise Munoz and Jahi McMath

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Ryan Abbott, M.D., J.D., M.T.O.M.
Associate Professor of Law, Southwestern Law School, and Visiting Assistant Professor of Medicine, David Geffen School of Medicine at UCLA

Historically, death has been a very simple and intuitive thing to understand – it occurs when someone stops breathing and their heart stops. Visually, it is a dramatic change that anyone can comprehend.

However, we now live in an age where machines can keep people breathing, and their hearts beating, when they would otherwise die. These medical advances have been revolutionary, and they are vital to allowing living patients to recover after severe illness or injury. On the other hand, they can make it more difficult for people to accept and understand death, because it can make dead patients “appear” alive.

Brain death refers to the irrevocable loss of all functions of the brain, including the brainsteam. Someone with brain death is just as dead as someone who has stopped breathing and whose heart has stopped. Doctors confirm brain death through a neurological examination, and once diagnosed the patient is dead. That person will never have any brain functioning and will never return to life or “wake up.”

That, of course, is a difficult concept to explain to people without medical training, and who don’t understand how the brain and body work. To family members, a loved one with brain death on life support has some of the features they associate with being alive. For example, a video now circulating online that purports to show Jahi McMath responding to stimulation may simply demonstrate that some reflexes may persist after brain death, such as a Babinski’s reflex that causes the big toe to move upward while the other toes fan out in response to the sole of the foot being firmly stroked. Grieving family members are, understandably, sometimes unable to accept a diagnosis of brain death.

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Physician Authority to Make the Determination of Death: Why It Matters

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by James Zisfein, M.D.
Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

Why does it matter, to those of us involved in clinical ethics, that physicians are losing the authority to determine that a person has died?

I offer several reasons, in increasing order of importance:

Firstly, there is the (wasted) financial cost of maintaining dead people in critical care beds. However, even with the loss of physician authority to determine death becoming more common (due to publicity surrounding the Jahi McMath case), this cost is but a small fraction of our national health expenditures.

A more important reason is damage to professional integrity. The damage cannot be easily measured, but it’s real. The most bitter complaint I hear from critical care nurses is regarding their wasted efforts to prolong the lives of the imminently dying, and how that infringes on their time available to help patients with a chance to recover. (I don’t think they’ll be much happier ministering to the already dead.) And we have to also acknowledge the feelings of us neurologists and intensivists who use our extensive training and skill to make a correct determination of death only to see it nullified by angry but ignorant families, inept hospital administrators, and [unprintable] court rulings. Personally, it makes me wonder why the hell I’m doing this.

Thirdly, there will be inevitable loss of transplantable organs. As more and more families doubt the accuracy of determinations of death and assert dubious religious objections, and get supported by courts, there will be more and more lives lost on transplant waiting lists. It is already a far too common heartbreak when a child or young adult dies from liver failure, and the death could have been prevented. Prepare for a lot more heartbreak.

But the most important reason for allowing physicians to do their jobs — to determine death properly by medical standards — is for the sake of bereaved families. They have already suffered a tremendous loss, and introducing doubt about the fact of death or possibility of recovery does not change the outcome. It only intensifies and prolongs their anguish.

That’s why I think it matters. Any other takers?