Death Subject to Change

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It has often been said that no one talks more about death than the Irish. But death is something we all face. Death is one of the most important factors that give life meaning. There is biologic death and brain death. The concept of brain death, or the determination of death by neurologic criteria, was first proposed by a Harvard committee in 1968, and then adopted into the Uniform Determination of Death Act (UDDA) in 1981. Although the UDDA was widely accepted and endorsed by medical professional organizations, in recent years the concept has come under greater scrutiny and is increasingly the focus of legal challenges. One problem is that the diagnostic criteria for determining brain death, which have not changed in decades, do not satisfy the wording of the law. It is now widely acknowledged that some patients who meet the criteria for brain death may retain basic brain functions that are not included in the required tests. The UDDA needs to be revised to be more specific about which functions need to be lost to satisfy the definition of brain death, functions such as consciousness and the capacity to breathe on one’s own. As it stands today, medical practice is not in alignment with legal standards.

One test that should never be used to determine brain death is the EEG, or brain wave test. Unlike what happens on TV shows, the EEG is almost never totally flat, leading to the mistaken assumption that there is still meaningful brain activity. The 1968 Harvard committee maintained that brain death was separate from biological death, a concept completely rejected by the UDDA. Under the UDDA, brain death is considered biologic death. Brain death in a comatose person is determined by the apnea test, where the patient is temporarily disconnected from the respirator to look for spontaneous breathing, and the absence of basic brain reflexes like the gag reflex, corneal reflex, and pupil constriction in response to light. Most physicians today equate brain death with biologic death and do not distinguish it from cardiac arrest. But this view has been challenged by multiple reports in recent years.

One well-known case is that of Jahi McMath, a teenage girl who survived biologically almost five years after being diagnosed as brain dead following surgery. She was cared for at home and continued to grow normally and even began menstruating. In another case, a 4-year-old boy was diagnosed as being brain dead following meningitis, yet he survived biologically for over 20 years. At autopsy, his brain was completely calcified with no identifiable neural tissue. These and other cases continue to occur as a result of lawsuits and legal challenges to the vague wording of the UDDA and state laws. As counterintuitive as it may seem, when functions such as breathing and nutrition are medically supported, the brain is not essential for maintaining biological integration and functioning, although in most cases biologic death closely follows brain death.

In Great Britain, the Code of Practice of the Academy of Royal Medical Colleges explicitly endorses the view that apneic (no spontaneous breathing) unconsciousness should be recognized as death. It states, “Death entails the irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with the irreversible loss of the capacity to breathe.” Until the language of the UDDA or state law is clarified, lawsuits will undoubtedly continue.

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 By Peter Galvin, MD

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