How do you diagnose death?
For the last several decades, doctors have used brain death, defined as the complete and irreversible absence of all brain function, to determine when someone is legally dead. But in two recent cases in Michigan, both involving children, families have pushed back on doctors' diagnoses of brain death.
Last month, a Michigan judge rejected a family's request to force the University of Michigan hospital to keep their 14-year-old son on life support after he was declared brain dead. A similar civil suit is playing out in an Oakland County court in regards to the fate of 16-year-old Titus Cromer.
Thaddeus Mason Pope is an expert on medical law and clinical ethics. He directs the Health Law Institute at Mitchell Hamline School of Law in Saint Paul, Minnesota.
“Brain death has been recognized in the law since the 1980’s, and the medical professions have developed clinical criteria for measuring and assessing brain death,” he explained.
However, in the past five years, Pope said, more and more families have been pushing back on whether brain death means their loved ones are actually gone. Pope said in the ongoing case involving 16-year-old Titus Cromer, the family is “contesting the very legitimacy of brain death in the state of Michigan.”
There's a gap, Pope said, between how state law defines brain death, and how doctors do. Michigan law states that a person who is "brain dead" is an individual “who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem.” That phrase—"all functions of the entire brain"—is important because hormonal functions like the pituitary gland and the hypothalamus are excluded from the tests doctor use to determine brain death.
“The medical community has basically conceded that they don’t measure the cessation of all functions of the entire brain. They measure the cessation of most of the functions they think are significant,” he said. “So there is a gap between what the medical profession is doing on one hand, and what the law requires on the other hand.”
According to Pope, lawsuits contesting diagnoses of brain death have been increasing across the country. Pope said they have had mixed success. The future of cases like this is unclear, and there isn’t an easy pathway to clarity.
“We recognize there’s gaps. We recognize there’s variability in how these issues are treated from state to state. And so I don’t think there is a clear vision yet because it’s really only in the past few years that these issues have really become apparent and recognized.”