The “new brain death” in 2014


We now have a completely different complexion on the brain death = death issue.

Back in antiquity (1968) brain death was defined objectively as death so we could get dead people off ventilators. Organ issues came later.  But 1968 was a different world of “life support” than it is now and many of the fine points were unknown then. We can now maintain “lifelike” cadavers indefinitely.

Brain death = death has never rested on structurally firm ethical ground. Brain death persons maintain some bodily integration and have been maintained for months so they could deliver healthy babies. We just drew a line in the sand and made objective criteria for brain dysfunction as a practical matter. Not every cell in the brain stone dead. Brain dead persons were simply “dead enough”.

We also now live in the age of surrogates that don’t want their relatives to die and we accommodate them by maintaining warm cadavers in a lifelike appearance on “life support”. Increasingly they’re demanding their relatives stay that way because if they give the appearance of life, there is always a possibility of unexpected reanimation.

Getting surrogates to accept the concept of brain death = death has never been easy in the best of worlds. A cadaver in the morgue looks decidedly dead. A brain dead cadaver on a ventilator looks decidedly comfortable, even animated. The only reason we’ve gotten away with selling brain death so far is the preponderance of multidisciplinary certitude to families.

The number of surrogates who demand futile care for near-dead persons is increasing anyway. Because of “life support”, they simply don’t believe our prognostications of doom and gloom. Their eyes and emotions tell them differently. With this case, it’s now escalated to brain dead persons, and this has the potential to change the complexion of organ donation.

Surrogates have figured out that they don’t have to accept medical prognostication they never fully believed anyway, and now enforce it legally. The groundswell for maintaining this warm cadaver is astounding.  An Internet site to raise money for her “life support” maintenance containing at last count US$28,000, all from the grass roots. Pastors of local churches imploring the court to “save this poor innocent’s life”, 60’s style marches chanting “Don’t kill Jahi!”. The child’s uncle declaring on NBC Nightly News that the child’s mother is certain she responds to her.

This is not a fluctuation in the ether. This is a gift that will keep on giving and will grow like a sunflower seed in the noon day sun. An increasing number of surrogates have now figured out they can get their way, any way they want, simply by calling a lawyer. Once it gets into court, the justice system always errs on the side of “life” as the court understands it. Sustenance of vital signs.

This is now a totally new paradigm in organ donation. It’s been a long time coming and it’s now here.


CCM-L Member Response: An element that you don’t discuss below is the question of reimbursement. According to news reports, her family’s insurance continues to cover her care while hospitalized. If this becomes more of a trend, I suspect that the carriers will quickly stop that sort of “flexibility” around reimbursement.

I say;  Health care insurers understand the reality that hospitals must continue to care for patients whether they get paid or not. So they routinely get away with rationing and conserving at the provider level, not at the level of their insured. They cut payments to providers retrospectively on the basis of paperwork while assuring their clients they are fully insured. This is a political reality.

The truly significant part of this travesty is the groundswell at the grass roots level. People contributing to the on-line fund. The 60’s, Berkeley style marchers carrying placards, just like “End the Vietnam War”. The public media revelation that the mother “feels like the child responds to her”.

All that means that the groundswell here is NOT limited to this particular family as outliers. It’s broken into the mainstream now, and you can bet your sweet bippy it will “go viral” like a youtube video of Britney Spears naked.

As of now, the “law” pertaining to death by neurologic criteria is moot. Anyone that simply doesn’t believe in death by neurologic criteria can trump it quickly and efficiently by getting a lawyer and petitioning the court. Hungry lawyers looking for work will fall all over this. The precedent is set and a significant portion of the public seems to support it. Do you see marchers today with “This is ridiculous” placards?

This has MASSIVE implications for organ donorship.

CCM-L Member Response: Not intending to make a political statement, but I suspect even more strongly that someone covered by Obamacare will find that reimbursement stop even more quickly.

I say: There is no currently convincing evidence that the Affordable Care Act of 2008 will act any differently than any other “private” company, equally as reluctant to face the political firestorm of “saying no” to their insured. Tradition has it that “saying no” to providers is the path of least resistance.


Update:  (1/1/2014)

The family’s court filings said New Beginnings Community Center in Medford N.Y., is willing to take Jahi and provide 24-hour medical care. The center was founded by a former hair stylist whose father suffered traumatic brain injury after a 2007 motorcycle crash. New Beginnings founder and owner Allyson Scerri shared a statement on her Facebook page Tuesday explaining how her facility “is about preserving life and treating brain-injured patients with care and dignity.” “We do encourage every citizen to take the time to educate themselves more clearly on the issues of what brain death is and what it is not,” the New Beginnings statement read. “This child has been defined as a deceased person, yet she has all the functional attributes of a living person despite her brain injury.”

(Did I mention radical right-to-lifers…….)

On Tuesday, the Terri Schiavo Foundation, named for the Florida woman who provoked a national debate about end-of-life-issues when she was diagnosed as being in a persistent vegetative state, said it had been helping Jahi’s family find a facility that would take the girl.

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