Question: Recently, there have been two horrific cases involving brain dead hospital patients, and the enormous trauma they caused.  One matter involved a young teenager whose severe sleep apnea surgery went terribly wrong; the other, a brain?dead woman who was pregnant.  What is brain death and how is it different from the traditional understanding of death?  Given both patients were dead, what were the controversies about?  For my hospital, what kinds of difficulties might we encounter with families of brain dead patients?

Answer: The traditional definition of death involves the cessation of respiratory function, heartbeat, and perhaps some indications of a lack of central nervous system activity (lack of pain indicators, no dilation of pupils).  But medical technology produced respirators that kept the respiratory function going, and cardiac pumps that assisted heart activity.  While the body was being kept alive by these life-supporting measures, the individual also had irreversible cessation of all functions of the entire brain, including the brain stem.  If there was clear proof of an irreversible cessation of brain functions, was that also to be within the definition of “death,” even though traditional indicators of life are being artificially maintained?

That was the question wrestled with by physicians, ethicists, legislators and policy-makers and others many years ago.  The first widely publicized criteria for “brain death” as within the legal definition of death came from the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death back in 1968.  The next most significant report came from the President’s Commission for the Study of Ethical Problems and Medicine and Biomedical and Behavioral Research published back in 1981.  The President’s Commission released a set of guidelines on the diagnosis of death, including brain death.

Since then, all states have adopted brain death as part of the legal definition of death under their state law.  This was pioneered by a recommended uniform statute on the definition of death provided to every state to enact as presented or to make any modifications that the state saw fit.

In other words, the understanding in the legal and the health care field of brain death has been with us for several decades.  But it is still not uncommon for grieving families or loved ones to struggle with or even reject the concept of brain death.  For them, the patient is still breathing and her heart is still beating ? with the assistance of life support.

This can certainly create personal tragedy and trauma.  In one matter in which we assisted, a patient’s father literally would not allow hospital staff to enter the patient’s room – his daughter’s – if the staff were going to discontinue the life-supporting equipment and measures.

These can be very tragic cases.  But there are clear legal and ethical principles that once a patient is dead, there is no longer a duty or reason to maintain any type of life-sustaining treatment. The challenge for a hospital can be how to help loved ones accept the difficult situation and grieve for the person lost and loved.

While both of these brain death cases received national attention, hospitals today certainly experience far fewer patient brain death controversies than years ago.  Dilemmas concerning end-of-life care decision-making are more common in other areas:  the terminal patient who refuses care; the patient in a persistent vegetative state with a family of decision-makers torn as to continue or end the life-sustaining measures; a family directing that treatment be given for an end-of-life patient, but treatment that both the attending physician and the hospital feel would be futile.  All hospitals address these difficult situations at one time or another, and should have both policies and an understanding as to how to deal with these difficult patient situations on the legal, ethical and human fronts.

For a discussion of the legal principles involved in these situations, please join Alan Steinberg & Phil Zarone for an audio conference on February 26, End-of-Life Decision-Making: The Governing Legal Principles.