Thursday, December 19, 2013

Legal Definition of Death in California

With worldwide discussion of the Jaha McMath case, it is worth clarifying California law on dead patients.

First, like most states, California adopted the Uniform Determination of Death Act in 1982 (Cal. H&S Code 7180-81):
(a) 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. A determination of death must be made in accordance with accepted medical standards. . . .
When an individual is pronounced dead by determining that the individual has sustained an irreversible cessation of all functions of the entire brain, including the brain stem, there shall be independent confirmation by another physician.
In 2009, a new California statute (Cal. H&S Code 1254.4) expanded the obligations of hospitals with respect to patients declared dead on the basis of neurological criteria. 
(a) A general acute care hospital shall adopt a policy for providing family or next of kin with a reasonably brief period of accommodation, as described in subdivision (b), from the time that a patient is declared dead by reason of irreversible cessation of all functions of the entire brain, including the brain stem, in accordance with Section 7180, through discontinuation of cardiopulmonary support for the patient. During this reasonably brief period of accommodation, a hospital is required to continue only previously ordered cardiopulmonary support. No other medical intervention is required.
(b) For purposes of this section, a "reasonably brief period" means an amount of time afforded to gather family or next of kin at the patient's bedside.
(c)(1) A hospital subject to this section shall provide the patient's legally recognized health care decisionmaker, if any, or the patient's family or next of kin, if available, with a written statement of the policy described in subdivision (a), upon request, but no later than shortly after the treating physician has determined that the potential for brain death is imminent.

(2) If the patient's legally recognized health care decisionmaker, family, or next of kin voices any special religious or cultural practices and concerns of the patient or the patient's family surrounding the issue of death by reason of irreversible cessation of all functions of the entire brain of the patient, the hospital shall make reasonable efforts to accommodate those religious and cultural practices and concerns.
(d) For purposes of this section, in determining what is reasonable, a hospital shall consider the needs of other patients and prospective patients in urgent need of care.
(e) There shall be no private right of action to sue pursuant to this section.
It appears that the hospital has already provided the family of Jaha McMath with the required "period of accommodation."

1 comment:

Anonymous said...

Unfortunately the medical determination of neurologic death does not always comply with the legal standard that all functions of the whole brain including the brainstem have irreversibly ceased. Furthermore, if whole brain death has truly occurred, then an autopsy should confirm this determination by demonstrating necrosis of the whole brain including the brainstem
However, some viable brain structures retain functions in those medically determined brain dead. The neurologic viability can be illustrated on continuous monitoring of the electroencephalography; stimuli-evoked electric potentials, hypothalamic production of hormones, etc.

If the medical determination of neurologic death does not comply with the legal standard set forth in the Uniform Determination of Death Act adopted by California in 1982 then unilateral withdrawal of treatment cannot proceed based on the death criterion.