Determining Death: Settled or Unsettled? Alexander M. Capron Four decades ago, law and medicine were locked in a struggle over death. Under the common law standard, death occurred upon “a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.”1 Yet many physicians regarded the traditional vital signs as uninformative in unconscious hospitalized patients receiving support from drugs and devices such as vasopressors, mechanical ventilators, and cardiac pacemakers. They looked instead to the conclusions of an ad hoc Harvard Medical School committee which in 1968 had offered a poorly named but quickly acclaimed “definition of irreversible coma”2 under which death could be declared in artificially supported patients based on certain clinical and laboratory findings despite continued respiration and heartbeat.3 The resulting legal-medical conflict left physicians uncertain whether they could remove ventilators and other interventions from these patients; in the era before Quinlan4 and 1 BLACK’S LAW DICTIONARY4th Edition 488 (1968). 2 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 J.A.M.A. 337 (1968)[hereinafter Irreversible Coma]. In addition to ten physicians, the committee included an historian, a lawyer and a theologian, all members of the Harvard University faculty. Both “brain death,” which was part of the committee’s name, and “irreversible coma,: which was the way it described its conclusions were problematic, the former because it mistakenly suggests that organs die (organisms die; organs cease functioning), the latter because it misleadingly suggests that dead persons are comatose (coma is a state of being alive albeit unconscious). The latter problem eventually disappeared, in that physicians ceased using the term “irreversible coma” to describe death, but the former problem persist, in that “brain dead” remains the common short-hand to describe a bodies determined to be dead based on a determination that they have suffered a permanent loss of all brain functions. 3 Briefly, the clinical criteria for diagnosing death were “unreceptivity and unresponsivity” to “externally applied stimuli and inner need, an absence of spontaneous muscular movements or spontaneous respiration, and no elicitable reflexes; the principal confirmatory test was the electroencephalogram (EEG), with an isoelectric reading being “of great confirmatory value” in diagnosing death. Id at 337-38. 4 70 N.J. 10 (1976). Workshop Draft, April 2010 Not to be cited or quoted without permission Page 1 Cruzan,5 it was widely believed in medical circles that it was illegal and perhaps unethical to withdraw such support if doing so would cause a patient’s death.6 More dramatically, the transplantation of hearts from “dead” bodies into recipients where they would start beating again challenged the conventional understanding of death and raised the specter of liability. That became a reality when Drs. Richard R. Lower, David M. Hume, David H. Sewell, and H. M. Lee, surgeons at the Medical College of Virginia who had performed the world’s seventeenth human heart transplant on May 25, 1968, in Richmond, were sued for wrongful death by William E. Tucker who claimed that they had not only lacked approval from the next of kin to remove his brother Bruce’s heart and kidneys but also acted before Bruce had died.7 Although the neurologist who had examined Bruce found him to be “dead from a neurological standpoint” before the respirator was turned off, the trial judge “rejected the invitation offered by the defendants to employ a medical concept of neurological death in establishing a rule of law.”8 Denying the defendants’ motions to suppress plaintiff’s 5 497 U.S. 261 (1990). 6 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT xx-yy (1982). In the absence of a modern standard for determining death in ventilator-dependent patients, physicians and families could find themselves at an impasse. For example, Dr. Ron Wright, deputy chief medical examiner for Dade County Florida (which didn’t adopt a statute until 1980), had to go to court to have medical interventions stopped for bodies declared dead based on neurological grounds. “Wright was able to get a judge to hold a special Sunday morning hearing at the hospital—with reporters and photographers in attendance—at which he successfully argued that the family was being forced to pay $2,000 a day to keep a dead body in the intensive care unit.” Colen, Medical Examiner’s Solution to Life and Death Problem, Jan. 28, 1978, WASHINGTON POST §A at 8, col. 1. 7 Tucker v. Lower, 1 Va. Cir. 124, 1972 Va. Cir. LEXIS 6 (No. 2381, Richmond, Va., L & Eq. Ct., May 23, 1972). Bruce Tucker had been brought to the hospital by ambulance on May 24th, having fallen at work and suffered a severe head injury. Following neurosurgery, he was placed on a respirator, but when he did not improve, a neurologist was called for an evaluation of his condition. The neurologist declared Bruce dead when he was found to have no signs of cortical activity, a flat EEG, and no ability to breathe spontaneously. The defendants contended that, before Bruce’s organs were removed, the chief of surgery had tried through the police to locate his family to obtain permission but no relative was found; permission to remove the organs for transplantation was instead obtained from the medical examiner’s office. 8 The trial court’s decision to treat death a something to be defined by the law rather than by medicine may have been reinforced by the variety of “types” of death described by the neurologist: Workshop Draft, April 2010 Not to be cited or quoted without permission Page 2 evidence and for summary judgment, the judge ruled that the jury could assess damages if it concluded “that the decedent’s life was terminated at a time earlier than it would ordinarily have ended had all reasonable medical efforts been continued to prolong his life.” This ruling was equivalent to directing a verdict for the plaintiff, since under the Black’s Law Dictionary definition, which the judge quoted in haec verba, Bruce Tucker was alive when he was taken to the operating room to have his organs removed as it was uncontroverted that he still maintained “for the most part, normal body temperature, normal pulse, normal blood pressure and normal rate of respiration.”9 But, without further explanation, when he sent the case to the jury, the judge permitted all possible causes of death—not merely cessation of breathing or heartbeat but also injury to the brain—to be considered, and the jury returned a verdict for the defendants.10 Similar uncertainties bedeviled the criminal law at the time; for example, defendants in two cases in which their victims had become organ donors received conflicting rulings from California trial judges on motions to dismiss homicide charges based on the deaths having been caused not by the defendant but instead by the physicians who removed the organs; on appeal, the cases were resolved, consistently, against the defendants.11 As heated as these disagreements and as pronounced as these uncertainties may have been, within a dozen years all were seemingly laid to rest. The argument that In addition to theological death, the neurologist defined two other types of death. First, he defined clinical or neurological death as total cessation of function of the central nervous system or brain. He then defined biological death as the death of an organ or a part of the body or a cell. He described death as a continuing thing since tissue and organs live after the brain dies, but he stated that in his opinion the individual dies when the brain dies. Id. at 126. 9 Id. at 126-27. 10 The judge instructed the jury that, in determining the time of death, they could consider in addition to the traditional evidence as in the opinion of May 23, 1972, "the time of complete and irreversible loss of all function of the brain; and, whether or not the aforesaid [circulatory and respiratory] functions were spontaneous or were being maintained artificially or mechanically." Id. at 134 [Reporter’s Note]. 11 [citation] Workshop Draft, April 2010 Not to be cited or quoted without permission Page 3 crafting a “definition” of death was a task for medicine rather than law12 was resolved by establishing a role for both.13 The debate over whether the common law standard should be revised by courts or legislatures,14 led to the conclusion “that courts should update the standards for declaring death as the issue arises in litigation” but the formulation of new standards should not “have to await judicial decision” and should instead be undertaken by legislatures which are more open and accountable and more able to “investigate both public views and the full range of expert opinion.”15 And the question whether the legislation should articulate only a neurological standard or include the traditional circulatory and regulatory definition was resolved in favor of the latter view.16 In the decade following the adoption in 1970 by Kansas of the first statute “defining” death, twenty-seven states placed laws on their books. By 1980, when the presidential bioethics commission assembled the sponsors of then extant legislative proposals—the American Bar Association (ABA), the American Medical Association (AMA), and the National Conference of Commissioners on Uniform State Laws (NCCUSL)—to develop a single statute, the major impediment to legislation in the remaining jurisdictions was the confusion caused by the slight differences in the wording 12 See, e.g., What and When is Death?, 204 J.A.M.A.