BRAIN DEATH - 07/09/11
Résumé |
Writing for the Washington supreme court in 1980, chief justice Utter observed:
“Death is both a legal and medical question. Traditionally, the law regarded the question of at what moment a person died as a question of fact to be determined by expert medical testimony. However, recognizing that the law has independent interests in defining death which may be lost when deference to medicine is complete, courts have established standards which, although based on medical knowledge, define death as a matter of law.”10
The court then went on to rule that provisions of the Uniform Determination of Death Act30 should be applied in deciding when a 5-year old child who had severe head injuries was dead. This legislation declares that an individual is dead who has sustained “irreversible cessation” of (i) circulatory and respiratory functions, or (ii) of “all functions of the entire brain, including the brain stem”, providing that the determination is “made in accordance with accepted medical standards.” This statute, the similar Uniform Brain Death Act29 and other state legislation, regulation, or judicial rulings consistent with these laws are now in effect in all 50 states and the District of Columbia.4, 23, 25, 26 In the United States at least, it is clearly lawful to diagnose death on the basis of irreversible loss of clinically defined functions of the entire brain, with criteria formulated by the medical profession.
If prevailing law indeed reflects a firm social and political consensus that loss of brain function equates to death, then why ruminate further about brain death? At least three responses can be offered. One is that clinicians charged with making the determination may err in assessing brain functions. It is considerably easier to decide when the heart has stopped than when the brain has stopped. A second response is that not everyone accepts the notion that loss of brain function is the same as cardiorespiratory death. Accordingly, appropriate proxies of a brain-dead patient, such as next of kin or other persons who are informed about the patient's views on the matter, are arguably entitled to be heard before a final decision is made to withdraw life support from one whose heart is still beating. A third response is that there is a tendency to conflate brain death with other conditions of permanent unconsciousness (e.g., persistent vegetative state, anencephaly). Some persons regard these conditions as morally and functionally equivalent to brain death, whereas others may believe that prolonging life in these circumstances is as an unjustifiable exercise in futility. Such views have raised troubling questions about how far law should go in allowing the use of neurologic criteria either to diagnose death or to justify actions or omissions that will surely result in death. Because these questions strike me as particularly challenging, they will receive more attention than issues arising from the very nearly settled matter of the equivalence between loss of all functions of the brain and death.
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| Address reprint requests to H. Richard Beresford, MD, JD, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853-4901, bersford@law.mail.cornell.edu |
Vol 17 - N° 2
P. 295-306 - mai 1999 Retour au numéro
Article précédent
- THE NEUROLOGICALLY IMPAIRED CHILD AND ALLEGED MALPRACTICE AT BIRTH
- Karin B. Nelson
- MEDICAL RECORDS CONFIDENTIALITY
- Martin P. Rutberg
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