5 - Definition Of Brain Death

Definition Of Brain Death
By John J. Paris and Ronald E. Cranford

"It is important to be clear on what determination of death statutes involve ... It is equally important to understand the objections to such legislation, analyze and evaluate them, and devise a coherent public policy position on the issue. That policy must be medically sound, ethically appropriate, and theologically acceptable. "

A year ago, nineteen - year - old Richard Berger was wheeled into the emergency room of the Smithtown (Long Island, N.Y.) General Hospital with a robber's bullet in his brain. Comatose as a result of massive brain damage, he had no reflex responses. His pupils were dilated and fixed; there was no response to light or intense pain. His electroencephalogram was flat. He was unable to breathe without a respirator. The boy's father had but one question: "Is he dead?" The physician replied: "He is brain dead." The father pressed further. Was his son legally dead? The physician's response is instructive: "Medically he is dead. Legally, I don't know. I am not a lawyer."

That confusion set up six days of agony for Richard's parents as physicians, lawyers, district attorneys, and transplant coordinators tried to sift through the competing claims, hopes, and expectations for the boy. The physicians, though convinced Richard was dead, would not pronounce him so unless the parents either sought a court order declaring him dead or decided to donate his organs. In the latter case the doctors and hospital believed they would be legally protected by the state's Uniform Anatomical Gift Act, which authorizes the removal of organs from brain - dead individuals.

The physicians explained the issues to the family and the complications resulting from the fact that in New York there was no determination

John J. Paris, S.J., is Associate Professor of Ethics at Holy Cross College and the University of Massachusetts Medical School, Worcester, Mass.
Ronald E. Cranford, M.D.. is Associate Professor of Neurology at the University of Minnesota Medical School and Chairman of the Ethics Committee of the American Academy of Neurology. He served as a consultant to the President's Commission for the Study of Ethical Problems in Medicine.
This article is reprinted. with permission of the editors from America, the well known Jesuit weekly (Dec. 4, 1982, pp. 345 - 350). Appearing initially under the title "Brain Death, Profile and Catholic Confusion," the discussion seems to us of very wide, ecumenical concern. This is clearly a solemn and vastly difficult area where medicine, law, and theology converge. THEOLOGY TODAY is grateful to America and the authors for the opportunity to give this significant statement wider circulation.

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of death statute. The district attorney compounded the family's woes by alerting them to the fact that the assailant probably would argue that the parents, not he, had caused their son's death. Though no court had ever accepted such a defense, that would not prevent things "from getting very, very ugly at the trial."

Yet a further burden for the parents, as they watched their son breathing on the respirator, was the hope that though brain dead, he might somehow miraculously come out of the coma. That hope was finally dashed on the sixth day when Richard suffered a cardiac arrest. The parents were then confronted with the decision of immediately allowing the removal of his organs or facing the prospect of both his death and the destruction of his organs. At that point they determined that the miracle of life would go to the waiting recipient rather than to their son. They authorized the transplant.

Why, one might ask, did not the physician simply proceed on the basis of the medical evidence and pronounce Richard Berger dead? The attending physician, Dr. Arthur Rosen, a neurologist at University Hospital in Stony Brook, put it bluntly when he said, "Doctors will not pull the plug without a court order. The potential liability is just too great." It is indeed great in New York State where the famous Brother Fox case focused attention on the fact that some district attorneys believe "as things stand now, withdrawal of life support is homicide."

That comment by Robert L. Adams, first assistant district attorney of Rensselaer County, sent shock waves last fall through a large audience of medical personnel and attorneys attending a state - wide conference on "Legal and Ethical Aspects of Treatment for the Critically and Terminally Ill." Their trauma was intensified when Mr. Adams revealed that "there are D.A.'s in this state anxious to pursue such charges.... One told me he would see how many are enrolled in the Right to Life Party in his county, and he'd go from there" (Newsday 10/28/81 ).

Such a question would not have been an issue for the Bergers in those thirty - one states that now have a brain - death statute. There, a braindead individual is dead. The New York legislature, however, has five times rejected attempts to pass a determination of death statute. It has done so under sustained pressure from the New York Catholic Conference, right to life groups, and some Orthodox Jewish organizations which continue to insist that such legislation is morally repugnant, unnecessary, and dangerous.

I

It is important to be clear on what determination of death statutes involve, how they have evolved, and the need for them. It is equally important to understand the objections to such legislation, analyze and evaluate them, and devise a coherent public policy position on the issue. That policy must be medically sound, ethically appropriate, and theologically acceptable.

Thirty years ago the definition of death was uniformly agreed upon

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and easy to assess: When the heart and breathing stopped, the patient was dead. Two technological developments have challenged that understanding: the advent of artificial life support systems and the possibility of organ transplants. The first allows the revival of patients whose hearts or breathing have stopped. If the patient had not suffered more than a few minutes of oxygen deprivation, he or she would resume a normal life. If, alternatively, the patient underwent prolonged oxygen deprivation (fifteen to twenty minutes), heart action might be restarted and breathing maintained by a respirator, but the destruction of the brain cells would mean that the patient would be unable to maintain either of those functions on his own.

Neurological examinations are able to assess the extent of brain cell destruction and to distinguish patients who have suffered neocortical damage from those who have lost all brain functions including that of the brain stem. The first are in a persistent vegetative state. The overwhelming majority of the patients never regain mental functions of any type. Others may recover from the sleep - like coma after days to weeks and then have periods of wakefulness during which their eyes are open and move. There may even be rare instances of recovery of consciousness months or - as in the recently reported Minnesota case of Sgt. David Mack - almost two years after the initial trauma. All of these patients, including those like Karen Ann Quinlan who have suffered overwhelming destruction of the higher brain centers, continue to have functions of and circulation to the brain. They are clearly alive.

In contrast, brain - dead patients have no flow to the brain. Clinical examinations reveal no evidence of any brain functions. The pupils do not respond to light, nor are there any eye movements. Spontaneous respiration ceases because of the permanent destruction of the vital respiratory centers in the lower brain stem, and the patient is entirely dependent on mechanical respiratory support. Since cardiac functioning is not dependent on neural regulation from the brain, heartbeat can continue indefinitely in a respirator supported brain - dead patient, though usually heart stoppage occurs within a few days. There are, however, published cases of confirmed brain - dead children being mainained for a month or more, and a recent New England Journal of Medicine article (1/7/82) contains the report of a forty - nine - year - old New York man who survived seventy - four days in a brain - dead condition before the court - ordered removal of his respirator "terminated" his life.

II

With the ability to "sustain" patients through ventilator assistance came the realization that, with such technology, organs of brain - dead individuals could be kept "fresh" for transplant purposes. But in order to harvest the organs, the individual has to be dead. Physicians and society then faced two critical questions: When is the individual dead? And is it legitimate to ventilate the cadaver to preserve the organs'? Moralists

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quickly agreed to an affirmative answer to the second query. The first proved more problematic.

That issue was sharply focused with the advent of cardiac transplant surgery. As is true with many medico - moral topics, it was the courts that first confronted the problem publicly. In the celebrated case of Tucker v. Lower (1977), a Virginia court had to determine whether the physicians who removed a brain - dead Bruce Tucker from a respirator and then transplanted his heart into a patient who was dying of cardiac failure were guilty of a wrongful death. The judge instructed the jury in a new definition of death: "In determing the time of death you may consider the following elements ... among them the time of complete and irreversible loss of all function of the brain." The jury took less than an hour to return a verdict of not guilty.

To clarify the issue for physicians and families and to obviate the costly, burdensome and often traumatic trial of court battles, various states beginning with Kansas in 1970 enacted brain - death statutes. To date, some thirty - one states and the District of Columbia have followed suit.

To provide for greater uniformity on this subject and to avoid the strange situation of the same "body" being "alive" in one state and "dead" in the next, and the yet more paradoxical situation of a "body" being alive or dead in the same state depending on as extrinsic a factor as a signed anatomical gift card, the President's Commission for the Study of Ethical Problems in Medicine was charged by the Congress with developing a uniform determination of death statute. In its year and a half study, the commission heard testimony from a wide variety of medical, legal, ethical, and religious viewpoints. Among the positions considered was Jean - Jacques Winslow's eighteenth - century text: "The Uncertainty of the Signs of Death and the Danger of Precipitate Interments" in which the author argued that putrefaction was the only sure sign of death.

From the outset the commission was determined to take "extreme caution" in formulating public policy in this area. Proposed changes in the existing laws would be designed to produce a minimal shift in the definition as well as a maximal acceptance among laymen, scientists, and clinicians. To that end the commission took a very conservative posture in its hearings, in its findings, and in its final report. It evaluated, but did not accept, the philosophical understandings of death as the loss of personality or personal identity. It likewise studied and rejected the proposal that "death" be defined as the permanent loss of higher brain functions. In its understanding, those who, like Karen Ann Quinlan, are in a persistent vegetative state are not dead.

The commission adopted as its position the widely accepted whole brain - death standard, that is, death is established when "all functions of the brain including the brain stem have permanently and irreversibly ceased." Thus even if life continues in individual cells or organs, without the complex integration of the entire system, a person cannot properly be

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regarded as alive. It proposed the following Uniform Determination of Death Act (U.D.D.A.): "An individual who has sustained either: (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including brain stem, is dead. A determination of death must be made in accordance with accepted medical standards."

With such a careful and conservative formulation (one which has already been adopted with slight variation in twenty - six states, ten state supreme courts and thirteen nations, and one which had the approval of the American Medical Association, the American Bar Association, the National Conference of Commissioners on Uniform State Laws, and the American Academy of Neurology), it would seem that the remaining jurisdictions would quickly adopt the model statute.

III

Opposition soon arose from several quarters. Various right - to - life groups and the Rev. Edward Bryce, chairman of the U.S. Bishops' Committee for Pro - Life Activities, released position papers denouncing the proposed statute as "unnecessary, dangerous, and a stepping stone to euthanasia." Father Bryce's statements, which are a replay of the old arguments of the National Conference of Catholic Bishops against living - will legislation, have no application to brain - death statutes. They do reflect, though, the hysteria that exists among some of the right-to - life groups with regard to any attempt to deal with the subject of death and dying.

For example, the Minnesota Citizens Concerned for Life, a 25,000 member organization, testified at a legislative hearing that "it opposes not only brain - death legislation but any imposed definition of death." Such an action, contends Mary Winter, president of People Concerned for the Unborn Child, a powerful Pittsburgh - based anti - abortion group, "would be the first step to the 'dehumanization of the critically ill and to euthanasia." "Once you get that established," she continued, "you're on your way to a Holocaust."

People Concerned's memorandum attacking the U.D.D.A. shows the thinking behind their position. It begins by "exposing" support for the legislation by "euthanasia prone" groups, and then it articulates their true worry: "As pro - lifers, we hold what science has proven: that human life begins at fertilization. A definition of death which refers to brain function is anti - life because in the early stages of human development there is no brain.... A statute equating brain function with life would further legally dehumanize the unborn."

While the anti - abortion stance is admirable, the statement fails to distinguish those with future potential for brain function from those who have exhausted that capacity.

In failing to make crucial distinctions, they follow the leading spokesman for their positions, Dr. Paul Bryne, a St. Louis pediatrician, and the Rev. Paul Quay, a St. Louis Jesuit who writes on medical issues.

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Dr. Bryne and Father Quay, together with the late Sean O'Reilly, authored a well - known article, "Brain Death - An Opposing Viewpoint" in The Journal of the American Medical Association ( 11/ 2/ 79), in which they maintain that destruction of the brain, not merely cessation of function, is required for death. Lest there be any doubt as to their standard for irreversible function, the authors provide examples of evidence of death: "If someone's head has been completely crushed by a truck or vaporized by a nuclear blast, or if his brain has been dissolved by a massive injection of sulfuric acid."

What, one might ask, would lead to such a demanding standard? Father Quay's testimony before the President's commission reveals a fear that physicians would be willing "to kill someone who is still alive" in order to obtain transplant organs. His standard of nuclear vaporization or "the total physical disintegration of the individual organs and tissues" not only precludes that grisly possibility, it guarantees no harvesting whatsoever. It also recalls Winslow's questionable criterion for certitude: putrefaction.

Dr. Byrne and Father Qua), are not content to state their position. They claim that a brain function criterion "stands in flat contradiction to the religious beliefs of Christians, Jews, Moslems, Hindus, and many others." A thorough search of the literature finds no Catholic moral theologian, no Protestant ethicist, and but one Orthodox Jewish spokesman supporting their contention. Rabbi J. David Bleich of Yeshiva University opposes brain - death standards on the grounds that independent cardiac activity still occurs.

Rabbi Bleich, in fact, is the source of the Byrne - Quay dysfunction/ destruction thesis. He articulated it at a 1977 conference on "Biomedical Ethics in the Perspective of Jewish Teaching" when he stated: "Dysfunction of the brain should not be confused with destruction of the brain. Only destruction of the brain can be entertained as a possible definition of death." Rabbi Moses Tendler (Rabbi Bleich's colleague at Yeshiva), Rabbi Seymour Siegal, and Dr. Isaac Franck took issue with his interpretation of the tradition. They support the validity of total brain - death criteria for the determination of death.

IV

None of this evidence dissuades the pro - life forces from continued opposition to the legislation. They merely repeat the familiar refrain that legislation is unnecessary, dangerous, and the road to euthanasia. The unfortunate aspect of that mantra is that it influences, if not determines, the political statements of many Catholic bishops. The bishops, in turn, influence and control the policy position of many legislators.

Speaking to that issue, State Senator Louis Bertonazzi of Massachusetts noted the fact that, "The mere presence of an auxiliary bishop of Boston speaking in opposition to the brain - death bill on 'moral grounds' has resulted in a fairly even split among members despite the fact that proponents outnumbered opponents." This, he observed, is not because

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of reasoned arguments advanced by the opponents but because of their well - known ability to punish or reward legislators. The fear of that punishment will become mobilized, Mr. Bertonazzi warns, if brain-death proposals become enmeshed with emotional cries against premature organ transplants or - pulling the plug."

That is precisely what happened in Minnesota where the Minnesota Citizens Concerned for Life held information meetings to demonstrate the evils of brain - death legislation. Their star witness was Dr. Paul Byrne who awed a dozen of the legislators with the story of a "brain-dead" patient rescued from a transplant surgeon's knife by a last minute movement of his Adam's apple. Dr. Byrne further dramatized the issue for the assembled lawmakers by describing the reality of "brain - dead" patients: "The heart is beating, there's blood pressure. they put out urine, they sweat, they're warm, they look like a human being and someone decides they're dead." After his presentation, no one in the Minnesota legislature wanted to decide they're dead. Not a single member wanted to sponsor the Uniform Determination of Death Act. This for a bill which in one form or another is already law in thirty - one states.

Similar influence was demonstrated this spring by the Missouri Catholic Conference when it opposed "any statutory definition of death." The bishops presented several objections: ( I ) There is no need for a statutory definition of death. No physician has ever been prosecuted for using brain criteria, and no Missouri case prohibits physicians from doing so. (2) There is strong disagreement among the medical profession about the acceptance of that standard. (3) There are foreseeable adverse consequences to patients, family rights, physician rights, and the welfare of society from such a statute.

On its face, points one and two are incompatible. If there is strong disagreement among physicians on the acceptance of a brain - death standard, to employ it as a criterion for death without legislative or judicial authorization would be cavalier, if not foolhardy. The Missouri Conference also acknowledges that there are physicians who, while accepting the criterion as valid, believe it is illegal to use it under the present circumstances. Consequently, they keep "dead" patients on respirators.

The assertion that there is strong medical disagreement on brain death needs close scrutiny. Once again, it is Dr. Byrne who is cited as the expert source. The St. Louis pediatrician is quoted as saying: "Brain death may be described as an esoteric creation of neurologists and neurosurgeons who are seeking to speed up the declaration of death for the purposes of transplants. The general practicing physician does not rely on those esoteric criteria in pronouncing a person dead." It is not the general pronouncement of death that is in doubt; it is the status of the brain - dead individual that is the subject of the debate.

On that topic there is no longer any doubt as to what are the medically accepted standards. "The Guidelines for the Determination of Death," a landmark document which reflects a summary of currently accepted

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medical practices, was published in The Journal of the American Medical Association (11/13/81). It is signed by the nation's leading authorities in neurology, neurosurgery, critical care, and legal medicine. It represents, in the words of the accompanying J.A.M.A. editorial, "a consensus that is truly a remarkable achievement, [one] of which the medical profession can be proud." That document endorses the Uniform Determination of Death Act.

V

The charge of impure motives on the part of neurologists and neurosurgeons likewise falters under examination. Dr. Shelley Chou, a neurosurgeon writing in Lancet, reports that at the University of Minnesota Hospital there are "about twenty brain - death cases per year and less than 50 percent of them become organ donors." A survey done in a major British hospital over a five - year period notes an even smaller percentage; 22.7 percent were donors. Similar figures are found in the President's Commission Report where we learn that "only seven of thirty - eight subjects declared dead by neurological criteria in the commission's survey were organ donors."

The third cluster of concerns of the Missouri Catholic Conference is the least defensible. It objects that a legal definition of death would prevent the family of a brain - dead individual from continuing life support treatment if they so desired it; would assist hospitals in refusing to care for "dead bodies"; would aid insurance companies and the government in stopping payment for such care; and would inhibit the freedom of the individual physician from practicing medicine according to his own best judgment. Do the members of the conference really believe that the determination of death should be subject to the design of families, the idiosyncratic judgments of physicians, or the desires of third - party payers? The wishes, hopes, or fantasies of the family or physician will not change the reality of death; nor should they influence its diagnosis.

In addition to the various Catholic conferences, the Catholic Hospital Association has given its attention to the subject. In a thoughtful and well - documented booklet entitled Determination of Death, the Rev. Albert S. Moraczewski, O.P., and J. Stuart Showalter explore the theological, medical, ethical, and legal implications of brain death. They conclude their analysis with the statement: "We pose no legal or moral objection to U.D.D.A." Yet, they continue, "one cannot thereby simply assert that legislation of such criteria is justified." To be justified, they assert, there must be evidence that the absence of legislation results in injustice to patients, families, or physicians, evidence which they claim has not yet been established. They hold that the way to achieve public acceptance of the brain - death criteria is not by legislation - the usual way in which society codifies its social values - but by education.

It is difficult to obtain public acceptance of a standard which is repeatedly attacked by some Catholic bishops as being morally suspect and potentially dangerous. It is yet more difficult to get physicians to

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follow the Moraczewski and Showalter exhortation that they should rely on their medical judgment rather than fret over legal liabilities. In our litigious society, physicians and lawyers are understandably unwilling to go forward under the threat of civil or criminal liability. A tragic example of that reality was the case of Melanie Bacchiochi, a twenty - three - year - old Connecticut woman who was maintained in a brain - dead condition for forty - three days until a court finally authorized the physician to follow the appropriate medical response to her condition.

There have been yet other reported travesties of justice provoked by a lack of brain - death legislation. Last year, for example, the wife of a brain - dead New York policeman, who had been ambushed and shot in the head, was asked by the Queens County District Attorney not to disconnect the respirator lest that action jeopardize a potential first degree murder conviction. The wife, a Catholic, replied she would never remove the respirator in such circumstances, saying: "It would be against my religion."

This year similar fears were expressed by the Nassau County District Attorney's Office in the Richard Berger case. And the physicians, afraid of potential liability, refused to remove the respirator without a court order or organ donor status. We are also familiar with several instances of families of confirmed brain - dead patients who, though told there is "no hope," refuse to authorize removal of the machines. Such authorization ought not be the burden of families.

If there were but a few such cases and if they all ended within a day or two, the misuse of the medical personnel and resources might be a tolerable price to pay for the family's adjustment to the death. But as a survey done by the President's commission indicates, there are two hundred and four such cases per month in major medical centers. And the New England Journal article reveals that not all such patients succumb quickly to cardiac failure. In addition, we know that brain-dead children have substantial "survival rates." When these data are evaluated, it is apparent that the misallocation of resources, the financial costs, and the emotional strain of continued "treatment" become vastly disproportionate to any putative benefits.

VI

In the past few years there have been shifts in the stand taken by some pro - life activists and Catholic conferences on the Uniform Determination of Death Act. Such well - known pro - life spokesmen as Dr. Joseph Stanton, attorney Dennis Horan, and Dr. C. Everett Koop have supported determination of death statutes. In the words of Dr. Koop, now the Surgeon General, "I think the Uniform Act addresses the critical issue of brain - stem death and therefore should be a piece of legislation which pro - life groups could sincerely and honestly support."

It was that realization and the growing awareness that the idea of brain death "has become widely accepted in the medical profession" that led the Wisconsin Catholic Conference to withdraw its long standing opposition to a uniform determination of death act. This year,

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with the Wisconsin bishops no longer actively lobbying against the bill, the U.D.D.A. passed.

Yet more striking was the change in Pennsylvania where the Catholic conference has announced that it now supports the President's commission proposal. In a position paper explaining its shift, the Pennsylvania bishops provide a point by point refutation of the frequently repeated charge that such legislation is unnecessary, dangerous, and the first step to euthanasia. They argue that technological changes make it imperative that we update our understanding of death Then they declare itis far better to enact clarifying legislation than to leave the determination to the vagaries of court opinion and the burden of unnecessary litigation. If, as is possible, someone proposes a radical departure from the intent of this law in favor of euthanasia, then, they argue, that is the time to enter battle.

The Pennsylvania Catholic bishops have provided a model of how church involvement in the public policy process should proceed. Rather than merely join the chorus shouting "euthanasia" every time an issue involving death is raised, they have followed Archbishop John Roach's admonition that when the church enters the political arena, it must do so on the basis of reasoned argumentation. To provide this, the Pennsylvania bishops subjected the traditional charges against the legislation to critical analysis, found them inadequate, and revised their position. Other state conferences should follow that example.

VII

Within the past two years there have been several remarkable efforts to clarify the confusion existing on the difficult and trying issues of death and dying. The Vatican's splendid 1980 "Declaration on Euthanasia with its warning that "Today it is very important to protect, at the moment of death, both the dignity of the human person and the Christian concept of life, against a technological attitude that threatens to become an abuse"-set the agenda for study in this area. The exhaustive "Report on Defining Death," issued by the President's commission, and the authoritative "Guidelines for Determination of Death," by the nation's leading medical experts, provide the data on which to base a prudent public policy.

It is now the task of those who share the church's mission to understand the need for a sound public policy in this area, one which in the declaration's phrasing recognizes that "death is unavoidable; it is necessary therefore that we, without in any way hastening its hour, should be able to accept it with full responsibility and dignity." Acceptance of that responsibility necessarily involves an understanding of technology and medical developments as well as confidence in our ability to apply reasoned moral judgments to them. Thus our task and that of the bishops is to be informed on developments in medicine, to consult widely and wisely in this area, and to formulate positions that are both prudent and "in accordance with the plan of the Creator."