Determination of Death and the Dead Donor Rule: A Survey of the Current Law on Brain Death

cDCDD-NRP is consistent with US legal standards for determining death

Donation after circulatory determination of death (DCDD) has increased organ donation rates in the US over the past decade within an established legal framework, which is consistent with and supports individual and family decisions regarding organ donation in the context of end-of-life care. A new application, controlled DCDD donation utilizing thoracoabdominal normothermic regional perfusion (NRP) protocols (cDCDD-NRP), provides the opportunity to maximize a donation decision by recovering additional organs for transplant, including the heart, and to limit the detrimental impact of warm ischemic time by perfusing organs in situ following the declaration of circulatory death. In this viewpoint, we narrate our rationale for why cDCDD-NRP is consistent within the existing legal framework for organ donation in the United States and recommend no changes to the Uniform Determination of Death Act.

Brain Death and the Dutch Organ Donation Law

According to many legal systems that regulate organ donation, such as Dutch law, a brain-dead patient is regarded as a mortal remains. In general, these systems do not take into account the fact that this definition is being heavily criticized and the far-reaching consequences thereof. In the case of organ transplantation, vital organs are procured from persons who, from a biological perspective, may not yet be dead. A government that values scientific data and wants to provide honest and reliable information to its citizens has to account for this critique of its policy as citizens have the right to be well-informed. Whoever makes the decision to donate organs performs a special act of human solidarity, but the readiness to donate organs in the case of brain death is not inherent to the demand to love one's neighbor as one loves oneself.

Summary

According to legislation on organ donation in many countries, a brain-dead patient is regarded as a mortal remains. The law disregards the fact, however, that this definition is being heavily criticized and that it has far-reaching consequences. In the case of organ transplantation, vital organs are procured from persons who, from a biological perspective, may not yet been dead. A government that values scientific data and wants to provide honest and reliable information to its citizens has to account for this critique in its policy. Citizens have the right to be well-informed.

Does the Uniform Determination of Death Act Need to Be Revised?

Prompted by concerns raised by the rise in litigations, which challenge the legal status of brain death (BD), Lewis and colleagues recently proposed a revision of the Uniform Determination of Death Act (UDDA). The revision consists of (i) narrowing down the definition of BD to the loss of specific brain functions, namely those functions that can be assessed on bedside neurological examination; (ii) requiring that the determination of BD must be in accordance with the specific guidelines designated in the revision; and (iii) eliminating the necessity for obtaining consent prior to performing the tests for BD determination. By analyzing Lewis and colleagues' revision, this article shows that this revision is fraught with difficulties. Therefore, this article also proposes two approaches for an ethical revision of the UDDA; the first is in accordance with scientific realism and Christian anthropology, while the second is grounded in trust and respect for persons. If the UDDA is to be revised, then it should be based on sound ethical principles in order to resolve the ongoing BD controversies and rebuild public trust.

Summary

This article critically examines the recent revision of the Uniform Determination of Death Act (UDDA) advanced by Lewis and colleagues. The revision only further reinforces the status quo of brain death without taking into account the root cause of the litigations and controversies about the declaration of death by neurological criteria. In view of this deficiency, this article offers two approaches to revising the UDDA, both of which are founded on sound moral principles.

Public opinion and legislations related to brain death, circulatory death and organ donation

BACKGROUND

It is poorly understood how public perception of the difference between brain death and circulatory death may influence attitudes towards organ donation. We investigated the public opinion on brain death versus circulatory death and documented inconsistencies in the legislations of countries with different cultural and socioeconomic backgrounds.

METHODS

Using a crowdsourcing approach, we randomized 1072 participants from 30 countries to a case report of organ donation after brain death or to one following circulatory death. Further, we sampled guidelines from 24 countries and 5 continents.

RESULTS

Of all participants, 73% stated they would be willing to donate all organs, while 16% would want to donate some of their organs. To increase the rate of donations, 47% would agree with organ donation without family consent as the default. Exposure to "brain death" was not associated with a lesser likelihood of participants agreeing with organ donation (82.1%) compared to "circulatory death" (81.9%; relative risk 1.02, 95% CI 0.99 to 1.03; p = .11). However, participants exposed to "circulatory death" were more certain that the patient was truly dead (87.9% ± 19.7%) than participants exposed to "brain death" (84.1% ± 22.7%; Cohen's d 0.18; p = 0:004). Sampling of guidelines revealed large differences between countries regarding procedures required to confirm brain death and circulatory death, respectively.

CONCLUSIONS

Implementation of organ donation after circulatory death is unlikely to negatively influence the willingness to donate organs, but legislation is still brain death-based in most countries. The time seems ripe to increase the rate of circulatory death-based organ donation.

The use of apnea test and brain death determination in patients on extracorporeal membrane oxygenation: A systematic review

OBJECTIVE

To review practices of brain death (BD) determination in patients on extracorporeal membrane oxygenation (ECMO).

METHODS

A systematic search was applied to PubMed and 6 electronic databases from inception to May 22, 2019. Studies reporting methods of BD assessment in adult patients (>18 years old) while on ECMO were included, after which data regarding BD assessment were extracted.

RESULTS

Twenty-two studies (n = 177 patients) met the inclusion criteria. Eighty-eight patients (50%) in 19 studies underwent the apnea test (AT); most commonly through decreasing the ECMO sweep flow in 14 studies (n = 42, 48%), followed by providing CO₂ through the ventilator in 2 studies (n = 6, 7%), and providing CO² through the ECMO oxygenator in 1 study (n = 1, 1%). The details of the AT were not reported in 2 studies (n = 39, 44%). In 19 patients (22%), the AT was nonconfirmatory due to hemodynamic instability, hypoxia, insufficient CO₂ rise, or unreliability of the AT. A total of 157 ancillary tests were performed, including electroencephalogram (62%), computed tomography angiography (22%), transcranial Doppler ultrasound (6%), cerebral blood flow nuclear study (5%), cerebral angiography (4%), and other (1%). Forty-seven patients (53% of patients with AT) with confirmatory AT still underwent additional ancillary for BD confirmation. Only 21 patients (12% of all patients) were declared brain-dead using confirmatory ATs alone without ancillary testing.

CONCLUSIONS

Performing AT for patients with ECMO was associated with high failure rate and hemodynamic complications. Our study highlights the variability in practice in regard to the AT and supports the use of ancillary tests to determine BD in patients on ECMO.

Controversies in Brain Death Declaration: Legal and Ethical Implications in the ICU

Purpose of review

This article provides a brief overview of the history and complexities of brain death determination. We examine a few legal cases that highlight some of the controversies surrounding the validity of brain death tests in light of varying state laws and institutional policy, the appropriateness of making religious accommodations, the dilemma of continuing organ-sustaining support in a pregnant brain-dead patient, and the issue of whether to obtain informed consent from surrogate decision makers before proceeding to testing.

Recent findings

In response to physician concerns about navigating these complex cases, especially with laws that vary from state to state, the American Academy of Neurology has published a position statement in January of 2019 endorsing brain death as the irreversible loss of all functions of the entire brain. It provides positions on the determination of brain death as well as guidance surrounding requests for accommodation.

Summary

Although death by neurologic criteria has been accepted as death medically for over 40 years, legal variance exists throughout the states, especially regarding religious accommodations and in pregnancy. Questions of whether to obtain informed consent from surrogate decision makers prior to brain death testing remain, and there is no guideline regarding obtaining ancillary testing. We expect to see continued cases that cause medical, legal, and ethical controversies in our ICUs. As such, uniform training in proper methodology in performing the brain death examination and appropriate use of ancillary testing is crucial, and there is a need for legal consistency in the acceptance of the medical standard.

Top Ten Tips Palliative Care Clinicians Should Know About Caring for Serious Illness in Pregnancy

Palliative care (PC) teams are increasingly being called upon to provide care earlier and more remote from end of life. Because much of the field has grown out of hospice and geriatric care, most teams have little to no experience caring for pregnant women or their fetuses when serious or life-threatening illness strikes. This article, written by a team of oncologists (gynecologic, medical, and radiation) and PC providers, seeks to demystify the care of seriously ill pregnant women and their fetuses by exploring the diagnostic, treatment, prognostication, symptom management, and communication needs of these patients. Truly comprehensive PC extends throughout the life span, from conception to death, regardless of age. Accordingly, increased knowledge of the unique needs of these vulnerable groups will enhance our ability to provide care across this continuum.

Practice Variability in Determination of Death by Neurologic Criteria for Adult Patients

In 2010, the American Academy of Neurology (AAN) published updated official guidelines for specific practices involved in the determination of death by neurologic criteria for adult patients, otherwise known as brain death. Most states, however, do not have laws mandating the standard adoption of the AAN guidelines. The responsibilities for creating and implementing brain death determination policies thus falls on individual hospitals. As a result, significant variability in practice exists between hospitals and even between providers. This review highlights the ways in which and the extent to which adult brain death determination varies across the US, while also making the case that such persistent levels of heterogeneity call for improvements in standardizing training in brain death determination.

Reliability of the Telemedicine Examination in the Neurologic Diagnosis of Death

Objective

To determine whether telemedicine technology can be used to reliably determine the neurologic diagnosis of death (NDD) in patients with catastrophic brain injury (CBI).

Methods

We included a convenience sample of patients with CBI at a single academic medical center from November 2016 through June 2018. We simultaneously performed brain death evaluation at the bedside and remotely via telemedicine. Remote examiners were neurointensivists who were experienced and knowledgeable in the NDD. In addition to standard clinical examination, we used quantitative pupillometry to evaluate pupil size and reactivity. We determined the proportion of agreement for each NDD examination element and the overall diagnosis of brain death between bedside and remote examiners.

Results

Twenty-nine patients with mean age 46 ± 18 years underwent 30 paired NDD examinations. Twenty-eight (97%) patients met the NDD criteria and were pronounced dead. One patient did not meet the NDD criteria and died after withdrawal of life support. With the exception of qualitative assessment of pupillary reactivity, we observed excellent agreement (97%-100% across NDD examination elements) between bedside and remote examiners and 97% agreement on the overall diagnosis of brain death. Unlike qualitative pupillary assessment, quantitative pupillometry was consistently interpretable by remote examiners.

Conclusions

Our results suggest that remote telemedicine technology can be used to verify the findings of bedside examiners performing NDD examinations when a pupillometer is used to assess pupillary reactivity. When performed by neurocritical care experts, the telemedicine NDD examination has potential to facilitate timely and accurate certification of brain death in patients with CBI.

Classification of Evidence

This study provides Class IV evidence on the concordance of neurologic diagnosis of death by telemedicine and bedside examiners.

Teleneurology Consultations for Prognostication and Brain Death Diagnosis

The diagnosis of brain death and the determination of neurologic prognosis following cardiac arrest are important reasons for neurology consultation in the intensive care unit. In hospitals without access to neurology consultation, it may be challenging to address these important questions with high reliability in a timely manner. The American Academy of Neurology has established consensus criteria for diagnosis of brain death, which include (i) comatose state; (ii) presence of apnea; and (iii) absence of brainstem reflexes in the setting of a diagnosis of underlying brain injury compatible with brain death. It has recently been shown that virtual assessment of coma using standardized scales is feasible with good inter-rater reliability. The supervision of apnea testing and the neurologic examination of the brainstem by a remote neurologist are possible if conducted in conjunction with a well-trained and experienced bedside team. In this communication, we explore the essential clinical and legal framework that can support using virtual teleconsultations to address this complex topic.

Organ Donation After Circulatory Death and Before Death: Ethical Questions and Nursing Implications

Scientific advances have enabled thousands of individuals to extend their lives through organ donation. Yet, shortfalls of available organs persist, and individuals in the United States die daily before they receive what might have been lifesaving organs. For years, the legal foundation of organ donation in the United States has been known as the Dead Donor Rule, requiring death to be defined for organ donation purposes by either a cardiac standard (termination of the heartbeat) or a neurological one (cessation of all brain function). In this context, one solution used by an increasing number of health care facilities since 2006 is donation after circulatory death, generally defined as when care is withdrawn from individuals who have known residual brain function. Despite its increased use, donation after circulatory death remains ethically controversial. In addition, some ethicists have advocated forgoing the Dead Donor Rule altogether and allowing donation before or near death in certain circumstances. However, nurses and other health professionals must carefully consider the practical and ethical implications of broadening the Dead Donor Rule-as may be already occurring-or removing it entirely. Such changes could harm both the integrity of the health care system as well as efforts to secure organ donation commitments from the public and are outweighed by the moral and pragmatic cost. Nurses should be prepared to confront the challenge posed by the ongoing scarcity of organs and advocate for ethical alternatives including research on effective care pathways and education regarding organ donation.

An Investigation and Suggestions for the Improvement of Brain Death Determination in China

Background:

Brain death is the irreversible cessation of the function of the brain including the brainstem. In 2013, the Brain Injury Evaluation Quality Control Centre (BQCC) of the National Health and Family Planning Commission issued criteria and practical guidelines for the determination of brain death. This study aimed to evaluate whether the institutions have adopted these guidelines and to make suggestions for the improvement of the current criteria and practical guidelines for brain death determination in China.

Methods:

Consecutive brain death cases from 44 hospitals were evaluated for summary statistics for the following data: the performance of BQCC criteria and practical guidelines, clinical examination, apnea testing, ancillary testing, and the number of examinations as well as the waiting periods between examinations and details of who determined brain death. Data analysis was conducted from January 2013 to December 2017.

Results:

A total of 550 cases were obtained. All patients were determined to have deep coma and met the prerequisites for clinical testing. The performance rates of four brainstem reflex examinations (except cough reflex) ranged from 97.5% to 98.0%, and the completion rate as well as the coincidence rate were both 100.0%. The 238 cases (50.7%) completed apnea testing, and 231 cases (42.0%) had to stop apnea testing during the examination because of instability. The performance rates of the three ancillary tests, including electroencephalogram, short-latency somatosensory evoked potential, and transcranial Doppler, were 89.5%, 67.5%, and 79.5%, respectively; furthermore, the coincidence rates were 98.6%, 96.5%, and 99.5%, respectively. The combination of two ancillary tests was more accurate than one single ancillary test. A total of 401 (72.9%) cases successfully underwent two separate examinations to determine brain death with at least a 12-h waiting period. All brain death cases were determined by at least two qualified physicians.

Conclusion:

This study might provide suggestions for brain death determination in China.

Selected Legal Aspects of Donation After Circulatory Death in Poland

Organ transplantation is one of the most critical ethical topics in law and medicine and a matter of debate in various countries. Lack of organs for engraftment to meet the existing demand has resulted in a substantial crisis due to organ shortage and a rise in the critical conditions of certain waitlisted patients, as well as increased mortality of patients while waiting. Organ shortages for transplantation raised the issue of procurement of organs not only from living donors and cadaveric donors after brain death, but also after circulatory death. Renewed interest in donation after circulatory death started in the 1990s, and has been on the rise in recent years, reaching up 40% of donation in some countries. Both legislation on and practice of donation after circulatory death differ significantly throughout the world. Lack of unified guidelines and regulations have challenged the medical, ethical, legal, and transplant communities. Moreover, studies on legal aspects of donation after circulatory death are still lacking. In this review, we present selected legal issues in regulation of donation after circulatory death, and we address the most important legal challenges in this regard with particular attention to category III of donors after circulatory death.

Brain Death and Human Organismal Integration: A Symposium on the Definition of Death

Does the ability of some brain dead bodies to maintain homeostasis with the help of artificial life support actually imply that those bodies are living human organisms? Or might it be possible that a brain dead body on life support is a mere collection of still-living cells, organs and tissues which can coordinate with one another, but which lack the genuine integration that is the hallmark of a unified human organism as a whole? To foster further study of these difficult and timely questions, a Symposium on the Definition of Death was held at The Catholic University of America in June 2014. The Symposium brought together scholars from a variety of disciplines-law, medicine, biology, philosophy and theology-who all share a commitment to the dead donor rule and to a biological definition of death, but who have differing opinions regarding the validity of neurological criteria for human death. The papers found in this special issue are among the fruits of this Symposium.

Symposium on the Definition of Death: Summary Statement

This statement summarizes the conclusions of the Symposium on the Definition of Death, held at The Catholic University of America in June 2014. After providing the background and context for contemporary debates about brain death and describing the aims of the symposium, the statement notes points of unanimous and broad agreement among the participants, and highlights areas for further study.