Ethics of keeping brain-dead pregnant woman on life support

January 15, 2014

Wednesday, January 15, 2014

Good afternoon:

How can it be unethical to keep a brain-dead woman on life support but unlawful to disconnect a brain-dead pregnant woman from life support when both women are medically dead?

Erick Munoz filed a lawsuit yesterday against the John Peter Smith Hospital in Tarrant County, TX (Fort Worth) seeking an order directing the hospital to disconnect his brain-dead wife, Marlise Munoz, from life support. Under ordinary circumstances, he would not have had to file the lawsuit because the hospital would have disconnected her. These are not ordinary circumstances, however, because she was 14 weeks pregnant when she died and the hospital is claiming that it is prohibited by law from disconnecting her.

Section 166.049 of the Texas Health and Safety Code provides in pertinent part:

A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.

Marjorie Owens, WFFA-TV, Dallas-Fort Worth has the story:

On the morning of Nov. 26, Munoz found his wife unconscious on the floor of the couple’s kitchen. Munoz said later that day he was told by doctors at John Peter Smith Hospital that his wife — who was 14 weeks pregnant with the couple’s second child — was brain dead.

Doctors told her family they suspect she suffered a pulmonary embolism.

Since then, Munoz has been in a battle with the hospital to remove his wife from life support. While tests on his wife’s fetus show a normal heartbeat, Munoz said it was against his wife’s wishes to be kept alive by a machine.

Doctors cannot determine the medical condition of the fetus until it reaches 24 weeks (it’s now at 18 weeks).

He argues that she is not a “pregnant patient” because she is clinically dead and he fears the health of the fetus was compromised by her death.

I agree.

Keeping a clinically dead woman’s lungs functioning on a ventilator so that a fetus can be brought to term in a decomposing body is too ghoulish to consider, except in Texas apparently, which ironically takes pride in executing people sentenced to death, including at least one wrongfully convicted innocent person.

This case reminds me of Jahi McMath, the 13-year-old brain-dead girl who died following surgery to correct sleep apnea by removing her tonsils, adenoids and other sinus tissue obstructing her airway. McMath was not pregnant, of course, and the hospital insisted on disconnecting her from life support over the strenuous objections of her mother, who went to court and obtained a temporary order that stopped the hospital long enough for the mother to find a place that would care for her daughter.

The hospital took the position that absence of brain activity constitutes “death” because there is no conscious awareness and the condition is irreversible. Therefore, the medical staff was ethically required to disconnect her from life support. Although the hospital initially objected to the transfer on ethical grounds, it relented and withdrew its objection conditioned on the coroner issuing a death certificate and serving as a paper middleman accepting possession of the body from the hospital and immediately transferring it to the mother who signed a document accepting full responsibility for whatever happened thereafter.

Meanwhile, Jahi’s brain is liquefying and her body is slowly decomposing on a life support machine at an undisclosed location.

These two tragic cases illustrate the importance of giving some careful thought to our own eventual death while we are “of sound mind and body.” I am referring to preparing a written “living will” that expresses our intent with regard to what we want or do not want done to us while we are alive, but unconscious and unable to communicate. For example, do we want to be resuscitated? A DNR order is an order saying do not resuscitate me.

I am not going to advise anyone about what to put in a living will. That’s for you to figure out. There may be legal requirements that have to be satisfied in your jurisdiction to have a valid living will, so you should consult a lawyer before you make one.

No discussion of end-of-life issues is complete without discussing assisted suicide.

Three states (Vermont, Oregon and Washington) have passed laws permitting physician assisted suicide. One state (Montana) has legalized physician assisted suicide by a court decision. Physician assisted suicide is unlawful in the rest of the states and the District of Columbia.

I believe every person has an inherent right as a conscious organic life form to a humane means of assisted suicide.

The issue that inevitably arises is how should we deal with the eligibility issue?

Should we ignore it?

Must a person be at least a certain age before they are eligible?

How about mental competence? Must they be competent to make the decision? Who decides? According to what standard?

Can someone else, such as a husband or a wife or a family member, make the decision for an incompetent person? For example, someone on life support or someone suffering from dementia or Alzheimer’s?

Should a change-your-mind minimum period for reflection be mandatory?

What about seeing a counselor?

If counseling is required, what qualifications must a person have to become certified as an assisted-suicide counselor?

Should religious counseling be part of the process?

What about the process itself? Big party first? Should hallucinogens be a part of the process? What about choosing among a number options? Cost?

What about starting a business that specializes in helping people plan their demise and the ethics of creating legally enforceable contracts with monetary damages for changing your mind?

And so on.

What do you think?

For more information on assisted suicide and euthanasia, go here.


This is our 853rd post in 26 months. Yesterday, we had 650 visitors, over 1500 page views and only one donation.


What happens to a body after brain death?

January 6, 2014

Monday, January 6, 2014

Good afternoon:

If you have been wondering how long a brain-dead body can last on a ventilator and what sort of changes occur in the body over time, here is an article by Rachael Rettner in Live Science that provides a good explanation.

Children’s Hospital agrees to release Jahi McMath’s body to her mother

January 4, 2014

Saturday, January 4, 2014

Good afternoon:

The clock is ticking . . .

Pursuant to a temporary restraining order (TRO) issued by Judge Grillo of the Superior Court, Children’s Hospital in Oakland will remove Jahi McMath from a ventilator at 5 pm on Tuesday, January 7th, unless the conditions in the stipulation below are met. Nailah Winkfield (Jahi McMath’s mother) and Children’s Hospital in Oakland reached this agreement yesterday afternoon regarding the hospital’s release of Jahi McMath’s body to her mother for transfer to a hospital willing to take her.

This agreement is acceptable to both sides because the transfer will be via the Coroner, who has already issued a death certificate.


1. The Coroner has to sign a document acknowledging that it has accepted Jahi McMath’s body from the hospital.

2. Nailah Winkfield must agree that she shall be wholly and exclusively responsible for Jahi McMath the moment custody is transferred in the hospital’s pediatric intensive care unit and acknowledge that she understands that the transfer and subsequent transport could impact the condition of the body, including causing cardiac arrest.

3. The TRO existing under the Superior Court’s order of December 26, 2013, as extended to 5 pm January 7, 2014 by order of December 30, 2013 shall be dissolved and of no further enforceability effective upon the transfer of the body in the ICU.

4. The transfer team will be allowed to use the Dover Street entrance and park in the driveway circle with aaccess provided to the adjacent entrance used by the air transport teams that use Children’s heliport.

5. The transfer team will be permitted to come into the ICU-transfer Jahi to their gurney-transfer her her IV’s and other fluids to their poles, transfer the endotracheal tube and attached hose to their vent-be allowed to take the Pulse Ox Indicator-leads or other items attached to Jahi’s body (if they so desire) and then once they have her situated they take her down to the Dover Street entrance.

6. At the time of transfer, her current orders, medications, and medication orders and other recent orders and a status report on her current vital signs and instrument labs will be provided to the transport team to a new facility.

7. This stipulation lasts as long as the current TRO lasts, but no longer.

And so, this agonizing horror story continues with a brain-dead child and a mother who refuses to believe that her daughter is dead.

I feel really bad for Jahi’s mother and I hope others will join me in praying for her to accept that Jahi’s spirit has moved on to the spirit world and is no longer among the living.

Liability issues for the death of Jahi McMath

January 3, 2014

Friday, January 3, 2014

Good afternoon:

I never did figure out why the comments were closed on yesterday’s post. Crane deserves the credit for correcting the problem. She republished the post without changing it and deleted the original. I have no idea why that worked, but I’m delighted that it did.

Many excellent comments and I hope y’all will continue commenting as the tragic circumstances engulfing Jahi’s family touch us emotionally and focus our attention on the fundamental question of identity

Who are we and what is consciousness?

In what sense are we alive, if we are not conscious?

Do we want our body to be kept alive by a machine when we can no longer be conscious?

If you do not want your body to be kept alive by a machine after your brain ceases to function, please consider making a written document expressing your intent so that it can be provided to your physician if you should be in that situation.

Cielo commented yesterday about Jahi’s cause of death. Since this is a law blog, I’m going to answer her question and assume for the sake of argument that death may be defined as absence of brain activity. Pursuant to that definition, Jahi is dead and she should be disconnected from life supporting equipment.

Here’s Cielo’s comment.

Also, you wrote: except to say that I believe the anesthesiologist may be liable for her death.” I would very much like to read your reasoning. Jahi made it through the surgery alive, conscious and wanting a popsicle. The complications began AFTER she was transferred to the ICU. Several things to remember that are NOT always mentioned in the news: Jahi was obese, had sleep apnea, uncontrolled incontinence and maybe diabetes. The tonsillectomy was NOT routine but complicated by the health issues as well as the fact that they ALSO removed additional sinus material. My personal belief is that Jahi fell asleep, had a sleep apnea episode, woke up coughing violently (I get occasional sleep apnea and it is very frightening to wake up unable to breathe), tore any number of internal sutures from the coughing, drowned on the blood draining to the lungs triggering a heart attack and then she died from being unable to get any oxygen. An autopsy could find the torn sutures UNLESS after 3 weeks, no such evidence could be found. I’ve read the body continues to heal. I’ve also read that the body begins to decompose, so I don’t know WHAT is happening inside the body right now. In either case, malpractice will be very difficult to prove. Were I on a jury of this case, I could easily see a tragic medical complication that was not caused by negligence or incompetence. Not every death is someone’s fault. Your thoughts?

My answer:

You may be right about her being OK until she suffered a sleep apnea episode in the ICU. Unfortunately for us, but understandable for the protection of Jahi’s privacy, the hospital records have not been released to the public. We need the records, our own experts to read and interpret them, and an opportunity to depose their witnesses under oath in order to determine her cause of death and identify who is responsible.

The problem for the hospital is that a 13-year-old girl died in the ICU after her tonsils and some excess sinus tissue were surgically removed. That result wasn’t expected and will have to be explained.

The legal doctrine of res ipsa loquitor may prevent the hospital from escaping liability by claiming that responsibility cannot be assigned to any particular person. The plaintiff, which probably would be her mother suing for wrongful death, would only need to show that she died while in their care and she would not have died unless someone was negligent.

I don’t believe there is any question about whether she died while in their care. Therefore, I will focus on what caused her death and whether it was a reasonably foreseeable event.

Under the circumstances you have described, death occurred in the ICU due to heart failure caused by excessive post-operative bleeding into the lungs from the surgically repaired area brought on by a fit of coughing and choking during a sleep apnea episode.

With all due respect, I am going to stick with my original best guess, which is to suspect the anesthesiologist. I suspect the anesthesiologist may not have inserted the endotracheal tube properly at the junction that leads to the two lungs or it may have become displaced during surgery resulting in an insufficient flow of oxygen to the lungs. Insufficient oxygen to the brain will cause brain death.

Alternatively, I suspect the surgeon may have nicked a blood vessel causing extensive bleeding that could not be stopped precipitating a heart attack.

I believe something went wrong during surgery or she would not have been placed in the ICU. She would have been intubated in the ICU, so the scenario you described is unlikely.

I do not believe the uncle who said she asked for a popsickle in the recovery room because she would have been intubated and unable to speak. I also believe she would have been taken directly to the ICU from the OR because she was in trouble or already dead and the ICU is better equipped to deal with an emergency than the recovery room.

Finally, I do not believe Jahi underwent a difficult surgery. On the contrary, I think it was an easy surgery and she should be alive today, but for negligent acts that occurred in the OR during surgery.

Liability in tort depends on the existence of:

(1) a duty to exercise due care to avoid injuring foreseeable plaintiffs;

(2) a breach or violation of that duty;

(3) injury to a foreseeable plaintiff; and

(4) injury proximately caused by the breach of duty.

Now, the analysis:

Jahi was a foreseeable plaintiff because she was a surgical patient and the surgeon who performed the surgery had a duty to perform it according to the medical standard of practice in his community. At this time, we lack sufficient information to conclusively determine whether he violated his duty, even though the episode of excessive bleeding suggests that he did.

We differ regarding when it happened, but even if you are right and it happened in the ICU, nurses are trained to deal with that problem and should have been able to stop the bleeding. If not, then the likely cause of the bleed was something that happened in the OR, not coughing or a sleep apnea episode since she would have been intubated.

The ultimate question is whether the cause of Jahi’s death was a reasonably foreseeable event and whether the hospital acted reasonably to prevent it from happening.

This case does not involve strict liability. The legal standard is negligence and proof of negligence requires evidence that it’s more likely so than not so (i.e., preponderance) that someone breached their duty to do something they were supposed to do and, but for that breach of duty, Jahi would not have died.

I think they are going to have a difficult time escaping liability, no matter how difficult the surgery may have been, because I doubt this surgery is considered to be risky and the ICU nursing staff should have been able to prevent her death.

This is our 831st post.

To be or not to be

January 2, 2014

Thursday, January 2, 2014

Happy New Year to everyone!

I have been following developments in the Jahi McMath tragedy in Oakland. She is the 13-year-old girl who went to the hospital last Friday to have her tonsils removed. She went into cardiac arrest in the recovery room after the surgery. Efforts to revive her were unsuccessful. The medical staff pronounced her dead after determining that she had no electrical activity in her brain or brain stem. But for vehement objections from her mother, the medical staff would have disconnected Jahi from the ventilator and transferred her body to a funeral home to be prepared for burial.

Pursuant to a court order obtained by her mother, Jahi will remain attached to the ventilator and receive nourishment by tube until January 7th, unless her mother finds a hospital willing to accept her before that deadline. If no hospital agrees to take her because she is brain-dead and/or her family cannot afford to pay for her long term care, the court will have to decide whether to accept the decision by the medical staff and dissolve his order or find some other solution.

The case presents several interesting issues for us to consider. I am going to start with the end-of-life issue today and reserve discussion of other issues for a later time.

We used to determine whether someone had died by checking for a pulse. No pulse meant the person was dead or soon would be, unless we restarted the heart. First responders and others trained in emergency medicine use electric paddles to shock and restart the heart. If paddles are unavailable, they will place the palm of one hand over the back of the other and alternately press down with both hands against the flexible breastbone directly above the heart and then release the pressure allowing the bone to return to its normal position. Repetition of this process mimmicks a beating heart and it can circulate sufficient oxygenated blood to the brain and back to the lungs to prevent or minimize damage to brain tissue.

Sometimes a heart will restart on its own after a person has been declared dead. For example,I recall reading a story within the last month or so about a man in Brazil who sat up in his coffin during his funeral and demanded to know why people were attempting to bury him alive. This provoked a rather awkward moment of silence as people attempted to figure out who was playing whom.

Doctors now believe that death inevitably results when the brain is deprived of the oxygen that it needs to continue functioning. They would explain the apparent miracle that people witnessed at the man’s funeral as a practical joke or an erroneous interpretation of insufficient data or flawed data recorded improperly. They would opine that the brain must have been alive when the person was declared dead.

Absence of a detectable heartbeat could mean that a person is dead, but a final decision should be delayed until doctors determine whether any brain activity is present. The brain will not regenerate dead cells. Therefore, absence of brain activity is a more reliable indicator of death than an absence of heartbeat.

As we know from the Terry Schiavo case, a brain-dead person can be kept alive indefinitely by hooking them up to a ventilator and feeding them nutrients through a tube. I question the wisdom of a decision to use a machine to extend a life indefinitely knowing that the person will remain in a persistent vegetative state without regaining consciousness until the machine is turned off.

I understand and sympathize with Jahi’s parents. Despite a persistent and shameful record of 100,000 preventable deaths in our nation’s hospitals each year, I do not believe any parent would have foreseen that their child would die following a routine surgery in a hospital to remove tonsils. Shock, dismay, stunned disbelief, and rage probably would overwhelm capacity to reason.

I think I would cling to hope as her mother has done.

Easier for us to see that prolonging her brain-dead child’s life under these circumstances is magical thinking that will not bring her back. Moreover, creating an opportunity for a miracle to happen by extending her life with a machine is irresponsible Frankenstein behavior.

No matter how much it may hurt, sometimes you have to say goodbye and let a loved one go.

Jahi’s mother made some serious allegations of misconduct against the hospital that I am not going to discuss, except to say that I believe the anesthesiologist may be liable for her death. Res ipsa loquitur.

I also have not discussed the cost of indefinitely prolonging Jahi’s life and who will have to pay for it.

Jahi’s case has provided us with a wonderful opportunity for context in considering and discussing end-of-life decisions regarding yyour child. They are gut-wrenching and no answer can fully satisfy.

Although the Terri Schiavo Foundation has offered to assist Jahi’s family, no decision that must be made at the intersection of a brain-dead child and the cost of extending her life in a permanent vegetative state is going to be easy to make.

Should an insurance company, the patient or the patient’s medical professional decide when to disconnect the patient from life support.

What would you do, if Jahi were your child?

Would you sign a DNR (i.e., do not resuscitate)

What role, if any should religious faith play in the decision?

Who should bear the cost of paying for long term care on a vent?

Should rich and poor receive different care or should it be the same?

I do not believe the right-wing hate machine will involve itself in this matter since they place little value on the life of a child with black skin.

CNN is reporting that Jahi’s famiy:

“Together with our team of experts, Terri’s Network believes Jahi’s case is representative of a very deep problem within the U.S. healthcare system — particularly those issues surrounding the deaths of patients within the confines of hospital corporations, which have a vested financial interest in discontinuing life,” the Terri Schiavo Life & Hope Network said in a prepared statement.

The organization said it has been overseeing the efforts of several groups to help get Jahi transferred out of Children’s Hospital Oakland and brought “to a safe place.”

Read more:

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