Legal Briefing: Brain Death and Total Brain Failure

My latest legal briefing is now available: "Legal Briefing: Brain Death and Total Brain Failure"  Journal of Clinical Ethics 25, no. 3 (Fall 2014): 245-57.  Here is the abstract:

This issue’s “Legal Briefing” column covers recent legal developments involving total brain failure. Death determined by neurological criteria (DDNC) or “brain death” has been legally established for decades in the United States. But recent conflicts between families and hospitals have created some uncertainty. Clinicians are increasingly unsure about the scope of their legal and ethical treatment duties when families object to the withdrawal of physiological support after DDNC. This issue of JCE includes a thorough analysis of one institution’s ethics consults illustrating this uncertainty. This experience is not unique. Hospitals across the country are seeing more DDNC disputes. 

Because of the similarity to medical futility disputes, some court cases on this topic were reviewed in a prior “Legal Briefing” column. But a more systematic review is now warranted. I categorize recent legal developments into the following nine categories:

1.   History of Determining Death by Neurological Criteria

2.   Legal Status of Determining Death by Neurological Criteria

3.   Legal Duties to Accommodate Family Objections

4.   Protocols for Determining Death by Neurological Criteria

5.   Court Cases Seeking Physiological Support after DDNC

6.   Court Cases Seeking Damages for Intentionally Premature DDNC

7.   Court Cases Seeking Damages for Negligently Premature DDNC

8.   Court Cases Seeking Damages for Emotional Distress

9.   Pregnancy Limitations on DDNC

In the same issue, check out "Family Members’ Requests to Extend Physiologic Support after Declaration of Brain Death: A Case Series Analysis and Proposed Guidelines for Clinical Management."

We describe and analyze 13 cases handled by our ethics consultation service (ECS) in which families requested continuation of physiological support for loved ones after death by neurological criteria (DNC) had been declared. These ethics consultations took place between 2005 and 2013. Patients’ ages ranged from 14 to 85. Continued mechanical ventilation was the focal intervention sought by all families. The ECS’s advice and recommendations generally promoted “reasonable accommodation” of the requests, balancing compassion for grieving families with other ethical and moral concerns such as stewardship of resources, professional integrity, and moral distress. In cases we characterized as finite-goal accommodation, a “reasonable accommodation” strategy proved effective in balancing stakeholders’ interests and goals, enabling steady progress toward resolution. When a family objected outright to a declaration of DNC and asked for an indefinite accommodation, the “reasonable accommodation” approach offered clinicians little practical direction, and resolution required definitive action by either the family or the clinical team. Based on our analysis and reflections on these 13 cases, we propose ethically justified and practical guidelines to assist healthcare professionals, administrators, and ECSs faced with similar cases.