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How To Know If You’re Dead

October 4, 2017

In 1861, a few 17th Century houses collapsed on High Street, Edinburgh Scotland.  Many occupants lost their lives and as rescue workers consid

ered taking a break from clearing the debris a voice was heard from the rubble:  “Heave awa’ chaps, I’m not dead yet!

Imagine lying on a bed in the middle of the border between two states.  And imagine the border separates you into two halves, the left half in one state and the right in another.  If this happened, theoretically, the left side of your body could be declared legally dead while your right side was legally alive!

Question:  Should we allow people to refuse a diagnosis of death?

Two Criteria For Declaring Death

All fifty states have adopted two criteria to declare someone clinically dead:  cardiac death criteria and neurological criteria.

Death By Cardiac Death (DCD)/Cardio-Respiratory Criteria

This criterion is the traditional declaration.  After a certain allotted time, a physician, or specified health professional, declares someone clinically dead when they cease to perfuse and ventilate, i.e., their heart stops beating, and they stop breathing.  This image is depicted commonly on television shows when the monitor reveals a flat line.  Medically, the term is asystole.

Neurological Criteria (Brain Dead)

In 1968, an ad-hoc Harvard Committee proposed the concept of death by neurological criteria.  In 1981, the government, under the Uniform Determination of Death Act (UDDA), officially adopted the proposal defining it as the total and irreversible cessation of all functions of the whole brain.  The whole brain includes the outer layers of the brain which controls consciousness and the brain stem which controls vegetative functions such as breathing.

But there’s a catch.

Though all fifty states have adopted both criteria, there is one state where a family can refuse brain death declaration on religious grounds – New Jersey.  Though NY, CA, and IL have “reasonable accommodations” permitted for brain dead patients, only NJ has a complete exemption.  According to the NJ statute, if the physician has reason to believe, “…that such a declaration [death by neurological criteria] would violate the personal religious beliefs of the individual…” then the declaration of death can be based solely on DCD.  In other words, a family can refuse brain death declaration.

Case In Point

In 2013, 13-year-old Jahi McMath suffered anoxic brain injury following tonsillectomy and adenoidectomy.   After thorough diagnostic testing, physicians declared her brain dead.  But the family refused to accept this declaration.  Unfortunately for them, they lived in CA and could not legally deny a clinical diagnosis of death.  As a result, the family transferred Jahi to a facility in NJ and legally exempted Jahi from a declaration of death by neurological criteria because it apparently violated their religious beliefs.

What a devastation to lose such a young child!  My heart goes out to Jahi’s family.  And I understand their rationale.  Who wouldn’t want to do everything possible to save the life of their daughter?  But Jahi died.  Though we have the technology to sustain certain vegetative functions such as respiration with ventilators, this does not undermine the validity of neurological criteria.  No person has ever recovered after a diagnosis of death by neurological criteria.

But this case does highlight the problems associated with varying state laws.  Theoretically, you can be dead in NJ but not NY, at the same time…It just depends on where you are.

Reasonable accommodations, such as providing time for a family to make preparations, are a helpful way hospitals can assist a family with bereavement.  But allowing a religious exemption to settled science ultimately harms the family because it prevents them the opportunity to grieve.  So how do we avoid future problems?  It’s simple.

Simple Solution:  NJ should reconsider a religious exemption to neurological criteria.