Tom Stinson:
I am writing a review article and a reviewer asked a question that I can't answer. When a patient is declared "brain dead", and some time later the ventilator is shut off, either after harvesting or not, what time is the patient legally dead, for the purposes of the death certificate? In NYC, we put down the time the ventilator is shut off; is it different anywhere else? Responses appreciated.
Jorge Deliyore:
On March 1991, we did the first heart transplant in Costa Rica. The organ donor was a young man who felt from a truck while moving. Several weeks after the party to celebrate the successful transplant, the donorïs parents sued the truckïs owner arguing that he did not provide security enough to their son while he was traveling on the truckïs roof and he died.
Surprising everybody, the truckïs owner was declared non guilty by the judge. The truck ownerïs lawyer argued that the donor did not die due to head trauma during the accident and stated that: ùthe donor died because the doctors killed him in the hospital when they took out his heartù. The worse of it: He was legally right! .
By that moment, Costa Rican law didn't consider anything about how somebody could be declared dead or brain dead. Today, legislation has changed and we state the dead time after a second evaluation, usually by a neurologist. Once the patient is declared brain dead, we stop all medical support but we don't turn off the ventilator. We know that we are wrong about the last point but it will take some time to bridge the gap between the law and the sui generis religious Costa Rican people´s mind.
Claudio Martin:
In Ontario, Canada, the time of death is officially recorded when brain death is declared. Brain death declaration requires demonstration of absence of brain stem reflexed including cold caloric stimulation and an apnea test. The tests have to be performed by two independent observers on two occasions. A brain flow scan can be used if clinical conditions invalidate the clinical exam.
Dan McNally:
In Connecticut we don't have an explicit brain death statute that defines the necessary proof. That's a blessing, because it lets us set our own institutional standard and update it when appropriate without an act of the legislature. That lets good sense prevail, and like most other responders we use the time at which the "conclusion" is reached by the second examiner. That means, of course, that the support pending harvesting is appropriately post mortem.
Brent Richards:
In Australia, death is pronounced after the second clinical examination confirming brain death has been performed. Our guidelines strongly recommend a minimum gap of two hours between the first and second clinical examinations. I would be interested to hear if others specify a time, and if not, what they consider is 'good clinical practice'.
Steve Curry:
When I have a brain-dead patient (not vegetative and breathing) I pronounce the patient dead and write so in the chart. Then I tell the family that their loved one is dead, that I have pronounced them dead and ask them to consider organ transplantation before I turn off the ventilator. The issue then becomes whether they should donate organs before we turn off the vent or should we not donate organs before we turn off the vent. Turning off the vent USUALLY, but, of course, not always, does not become an issue. They certainly ask about it and we discuss it for as long as they desire and until I feel comfortable that they completely agree with the plan of action. But the fact that their relative has already officially died usually brings them great relief.
Jack Aman:
Louis...here in Idaho, where we don't have a helmet law, unfortunately we take care of a lot of brain death/organ donor cases. Our criteria...brain death is death; therefore, "official" time of death is time of brain death declaration. In donor cases, the patient is declared, discharged as deceased, and readmitted as "Organ donor" for the remainder of the time leading up to harvest. If organ harvest is not contemplated, then life support measures are stopped when brain death is declared, thus the two events are coincident.
Dick Burrows:
He's dead when you say he's dead.i.e. when he meets the criteria for the diagnosis of brain death. Otherwise you would be removing organs from a living patient! as you would not have yet removed him from the ventilator. That is what you are doing if you remove organs before the time of death on the certificate!
Giancarlo Rossi:
In Italy we have a restrictive law about "brain death". We can consider "brain death" when there is the contemporary presence of the following conditions:
A special commettee made of a legal M.D., soecialist in anesthesiology ad a specialist in neurophisiopatology or neurology must observe the patient for six hours in adults or children over five, for twelwe hours in children aged between one and five and for twenty four hours for childre under one. The previous conditions must be stated at the beginning, at the half and at the end of the observation period.
Dick Burrows:
I would be interested to hear if others specify a time of death, and if not, what they consider is 'good clinical practice'.
In South Africa the law requires that two medical practitioners make the diagnosis - but only when the removal of organs for transplantation is contemplated. One of the practitioners must be registered for five or more years. Common sense would dictate that it is a good policy to ensure that such a diagnosis is not made by a single physician.
To my knowledge there are no legal guidelines to the timing of the diagnosis of brain death. In a legal debate on this subject Chris Barnard in a fit of exasperation said "the patients dead when the doctor says he's dead" In general I follow the line of argument of Pallis which is:-
It is important to understand that tests of mid brain function (absence thereof) are not of themselves a diagnosis of mid brain death in the absence of 1 & 2 above. We have had a number of cases referred to us as "brain dead for organ donation" only to find the depression of mid brain function was reversible.
Several years ago a registrar was bringing a patient to ICU for stabilisation prior to the harvesting harvesting of organs. Some way down the passage it dawned on him that the patient should be intubated. He picked up the laryngoscope and shoved it into the "cadaver's" mouth whereupon the cadaver woke up and said "if you try that again I'll kick your f***ing face in"!
Where there is uncertainty with 1 & 2 we wait. Individuals who are truly brain dead are the devils own job to keep "alive." They cannot maintain a blood pressure. Temperature falls inexorably and this is, as far as I am concerned, impossible to reverse. This begs another question. At what temperature do people feel it is reasonable to allow a diagnosis of brain death - 37deg 36deg 35deg 34 deg 33deg?
I find the easiest way to do an apnoeic test is to put the patient on 100% O2 and set the rate at 2/min. It can take an awful long time for CO2 to build up - far too long in my experience to allow apnoeic ventilation and not cause hypoxia (which will do the job for you). Occasionally, especially in children and victims of near drowning (to see if they are now drowned) and other cases where cerebral oedema is a problem I will do a radionucleotide perfusion study to see if there is perfusion to the brain. Clearly if there is no perfusion the individual is dead. We would not do an EEG
I frankly do not see the sense in repeating the tests provided that steps 1 & 2 have been properly carried out. Two of us would however always make the diagnosis.
The diagnosis is a rare diagnosis for us however. Less than 1% of cases per year.
Colin McArthur:
When a patient is declared "brain dead", and some time later the ventilator is shut off, either after harvesting or not, what time is the patient legally dead, for the purposes of the death certificate? In NYC, we put down the time the ventilator is shut off; is it different anywhere else?
Not wishing to add too much to the 'me too' chorus... In New Zealand you are dead when a doctor says you are dead; there is no statutory definition of death. This is in contrast to most of Australia and the US; we note the same advantages that Dan McNally has found in Connecticut where a similar situation exists.
Therefore, in the case of the brain dead organ donor of Louis Brusco's, the time of death is at the completion of the second examiner's assessment. EEG is not a requirement. When clinical examination is not possible we use absence of cerebral blood flow on angiography.
For those that are interested, the Australian and New Zealand Intensive Care
Society (ANZICS) produced a concensus document on brain death and organ
donation in 1993 (currently having some minor revisions) which is the
accepted standard of practice in Australasia. Contact the secretariat at
I twould be nice to stop using the term "brain dead" however, at
least in New York City, we cannot. In the preparation for the article I
am writing on the perioperative care of the Brain Dead Organ Donor
Patient, I spoke with our hospital lawyers and administrators, who then
discussed it with the New York City medical examiner. They require that
the time of death for the death certificate be the time that the
ventilator is turned off. That is the policy that we have to live by. I
agree with all of what you say, which is why I questioned it so far to
begin with.
Aviel Roy-Shapira:
In Israel, and I think elsewhere, the time of death is the time the patient
is declared brain dead. ( In Israel, this is when the second of the
necessary two physicians signs a note in the the chart pronouncing the
patient) That is the time to put on the death certificate, regardless of
when the ventilator is turned off.
Ken Mattox:
In Texas (Tex. Health & safety code ## 671.001-671.002)
"A person is legally dead if in the announced opinion of a physician, based
on ordinary standards of medical practice, there is irreversible cessation
of all spontaneus brain function. Death will have occured at the time the
relevant functions ceased."
"Death is to be pronounced before artificial means of supporting respiratory
functions are terminated"
The usual interpretation of these codes is that death occurs at the time the
usuall tests have established brain death.
A little reflection shows that this MUST be so. If the time of death is the
time the ventilator is turned off, it means that the ventilator was turned
off on a live patient, or that harvesting was performed on a live human
being. Either way this would be homicide. If the time of death is the
declaration time, then the ventilator or the harvesting are done on a
corpse. The fact that the heart is still beating does not make it less of a
corpse.
This means that your practice is wrong. I would look up the law, which is
usally explicit, since the exact time of death may have legal implications
regarding the estate.
Louis Brusco:
WHat you say meakes sense, which is why I had our hospital
administrators check with the NYC Medical Exmaininer's office, and they
confirmed that they want the time the ventilator is turned off as the
legal time of death for the death certificate. It isn't the first time
that NY did something against the common sense.
Aviel Roy-Shapira:
This is weird. But the medical examiner may be wrong. I would check the
relevant statute, and read it carefully. I am willing to bet it is in the
books, and available in the public liberary. As far as I know all states
recognize brain death and hence will have statutes to clarify it.
The requirement of the ME office makes it practically illegal for you to
turn off ventilators or harvest organs. It also makes possible a nonguilty
plea for a murderer whose victim donated his organs.
Spoke with the ME's dept. myself this am. They said that they
are interested in Cardiopulmonary death because that is the fist time
that they can do an autopsy. I have the hospital's legal dept. looking
into the matter right now.
Mike Darwin:
Dr. Brusco, I am never certain who I got mail from who is going to get when I respond using the CCM-L set up. I studied the "header" on your response and it seems it was
private, as was my initial response to you private as well. You say that the New York City Medical Examiner's Office (ME) requires that death be listed in so-called "brain dead" patients as having occurred when the ventilator is trurned off.
I can see from your response that YOU see how stupid this is, indeed how it
flies in the face of common sense. For instance, the NYC ME does not put down
as time of death the date/time on the death certificate that skeletal remains
which are recovered when a hiker long lost is at last "found" is the moment of
legal death! What you are seeing here is something very special which I may seem
arrogant in recommending to your attention. Several points I wish to make:
Now perhaps you can understand the strength of my reaction and why I got the
costly but hopefully profitable lesson I got re: bureacrats and the law. And why
I spent a day in handcuffs while people milled around tearing open sterile trays
of instruments and pouring them in a heap on the floor, and opening every
sterile disposable product right down to suture packages and adding them to that
heap. I wish you the best. I just hope you never really have to deal with these
people from a position of weakness in an area of ambiguity.
I cannot but cite the endlessly cited ancient Chinese Curse:
"May you live in "interesting" times and come to the attention of important
people."