Criteria for brain death differs in other states

Eric Risberg/AP file photoNailah Winkfield

Eric Risberg/AP file photoNailah Winkfield

This week’s question comes from Mark in Oakland, who asks:

Q: “I was reading about the case of Jahi McMath on the Internet. My child is going into Children’s Hospital Oakland and I wanted to get some additional information on the doctors so I did a search and saw the articles. Can you please explain to me why in California if someone is pronounced brain dead they can be disconnected over a parent’s objection but in New Jersey they can’t?”

A: Mark, thank you for this question. I have been asked this a lot at seminars and social gatherings but have never addressed it here.

The whole concept of brain death came out of a Presidential Commission on the subject of brain death. Before that, death was thought to be cardiopulmonary death, i.e., when the heart stopped beating and then breathing stopped. This resulted in the creation of the Uniform Determination of Death Act, which was passed by the National Conference of Commissioners on Uniform State Laws in 1980.

It was approved by both the American Medical Association (doctors) in 1980 and the American Bar Association (lawyers) in 1981. This commission involved doctors, clergy, lawyers and others who discussed the legal, medical, moral and ethical issues surrounding when death would be determined now that equipment existed that could keep a heart beating and oxygenation profusing the organs. This has implications both affecting both the criminal and civil law. Search for “Uniform Determination of Death Act 1981.”

In criminal law, a person on a ventilator, whose heart still was beating but who was brain dead, could be pronounced dead and a charge of murder or homicide could be brought. At the same time, someone who removed a person from a ventilator could not be charged for murder. In the civil context, a person who was pronounced brain dead, could be refused additional medical treatment and removed from a ventilator over the objection of their loved ones.

This also created a point in time that would make it legally and ethically appropriate to harvest organs from a person whose heart was still beating. This was important as transplants were becoming more practical with evolving technologies and healthy organs can be taken from brain dead people while their heart still beats (with consent).

California law, Health and Safety Code Section 7180, defines brain death as follows: “(a) An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”

New Jersey Law parallels the California criteria for brain death as they both stem from the UDDA, but New Jersey recognizes the First Amendment right to freedom of religion as well as the Fourth and 14th amendments, which form the basis for medical privacy and individual rights to challenge the termination process. New Jersey’s exception was the result of efforts by a religious leaders who felt individuals should retain the right over this most important of life’s decisions as cardio-pulmonary death, not brain death, was in accordance with their religious teachings and faith.

Therefore, New Jersey law has the following exception to brain death incorporated into its brain death statute: “26:6A-5. Death not declared in violation of individual’s religious beliefs. The death of an individual shall not be declared upon the basis of neurological criteria … when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria.”

Many people have labeled people who have challenged a brain death diagnosis as “crazy, stupid, ignorant, etc.” If this is true, the 8.938 million people in New Jersey who have this right must be the largest assembled mass of stupid people in the world.

As I well know, this issue is very controversial and people have said that when a doctor has pronounced a person brain dead, then the family members need to let go and not challenge that determination. I can tell you, as you will soon hear, that a brain death diagnosis made in the Bay Area recently at a well-known hospital made by four members of the hospital’s medical staff was recently overturned by two independent neurologists who conducted an examination pursuant to a court order. Like the McMath case, I handled that too albeit in a less public manner than the McMath case. So are people crazy who challenge doctors? No. Are doctors fallible? Yes. Should life be taken by mistake? Not on my watch.

Christopher DolanDolan Law FirmFeaturesJahi McMathNew Jersey

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