Redefining Definition of Clinical Death Under Consideration

An influential organization is considering a revised definition of clinical death that could make it easier to declare a patient dead.

A group within the Uniform Law Commission (ULC) that includes lawyers, medical professionals, and ethicists met in December to discuss updating the prevailing definition of death and revising family notification procedures. The ULC develops model statutes in a drafting process that can take several years, and that many state legislatures have adopted, is composed of attorneys appointed by state governments.

At issue is the Uniform Determination of Death Act (UDDA), a 1981 model state law defining clinical death.

“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,” states the UDDA. “A determination of death must be made in accordance with accepted medical standards.”

‘Irreversible Coma’ Defines Death

The current “brain death” standard in the UDDA is based on the recommendation of a group at Harvard Medical School, Doyen Nguyen, O.P., M.D., S.T.D., author of The New Definitions of Death for Organ Donation: A Multidisciplinary Analysis from the Perspective of Christian Ethics, told Health Care News.

“Brain death was introduced into medical practice by the Harvard Ad Hoc Committee in 1968,” said Nguyen. “The opening sentence of the Harvard Report, which states, ‘our primary purpose is to define irreversible coma as a new criterion for death,’ clearly indicates that brain death is none other than a state of coma, deemed to be irreversible based on an arbitrary set of clinical tests put forth by the Harvard Committee.”

Easier Criteria

Two changes to the UDDA appear to be under consideration: changing the word “irreversible” to “permanent” and changing “entire brain” to “brain stem,” says Heidi Klessig, M.D., a retired anesthesiologist and pain management specialist who has been a vocal patient advocate and is host of the website Respect for Human Life.

“Irreversible is commonly held to mean ‘not capable of being reversed,’” wrote Klessig in the American Thinker on October 25. “The term permanent is being offered as meaning that ‘no attempt will be made to reverse the situation.’ So, because doctors are not going to attempt to correct the patient’s problem, it now becomes ‘permanent.’”

Defining clinical death by narrowing the criteria to loss of brain stem function makes it easier to declare someone dead, wrote Klessig.

“This change recognizes that current practice does not test all functions of the entire brain, since most people diagnosed as brain-dead still have a functioning hypothalamus, a part of the brain,” wrote Klessig. “Many also still have electrical activity on an electroencephalogram (EEG), which is one of the reasons that EEG testing as a requirement for a brain death diagnosis was dropped in the 1970s.”

Harvesting Live Organs

Organ transplantation, which has become a big business, rationing of intensive care beds, and lawsuits by families challenging brain death declarations appear to be reasons driving the change.

Live organ harvesting is likely another reason prompting revision of the definition of death, says Nguyen.

“As much as the defenders of brain death claim otherwise, it remains a fact that the introduction of brain death into clinical practice was tightly connected to the need for fresh and viable organs for transplantation,” said Nguyen.

“Even Dr. Eelco F. M. Wijdicks, a leading brain death proponent, freely admitted in 2006 that ‘the diagnosis of brain death is driven by whether there is a transplantation program or whether there are transplantation surgeons.’ I do not think brain death examination now, in practice, would have much of any meaning if it were not for the sake of transplantation.”

No Informed Consent

Lack of informed consent is another concern with broadening the clinical definition of death, Kessig told Health Care News.

“If passed into law, the revised standards will remove the right to informed consent regarding brain death testing and the ability to refuse such testing,” Klessig said.

Transplant centers want legal protection from lawsuits, says Klessig.

“According to the American Academy of Neurology, the reason that these revisions are being proposed in the first place is to make it more difficult to challenge a brain death diagnosis in a court of law. Clearly, the revisions to the UDDA will stack the deck against families and will only promote the interests of the transplant industry.”

Process ‘Essentially Hidden’

Nguyen says she is concerned the redefinition of clinical death will reduce patients to “commodities and spare parts,” and Americans will be none the wiser.

“Death is a universal factual reality that affects every person, sooner or later,” said Nguyen. “If death affects every citizen, then the general public should be involved in the discussions and debates leading up to the establishment of a legal definition of death.”

The public wasn’t included in the deliberations of The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, which endorsed the Harvard group’s definition in 1981, or the current ULC group, says Nguyen.

“No involvement of the general public took place during the process that led up to the promulgation of the UDDA,” said Nguyen. “The whole process was under the control of the President’s Commission and essentially hidden from the eyes of the general public. Likewise, this time it is controlled by the ULC, and the general public is basically excluded from the decision-making process.”