Friday 29 June 2018

When people are classed as brain dead, are they really dead?

Doctors in Oakland, California, declared that 13-year-old Jahi McMath was brain dead on December 12, 2013 three days after she underwent a tonsillectomy and adenoidectomy. The McMath family fought in court to keep the teen on a ventilator, and announced that they had moved the girl to another care facility.

While family attorney Christopher Dolan told reporters that for her safety, Jahi's destination wouldn't be announced.  A New York facility said  that it was ready to accept her.

The facility said, "We are aware of Jahi McMath's dire situation, and we are willing to open our outpatient facility to provide 24-hour care," said Allyson Scerri, founder of New Beginnings Community Center in Medford, New York. "Her brain needs time to heal."

"This child has been defined as a deceased person yet she has all the functional attributes of a living person despite her brain injury," the center said on its website,  When routine surgeries go wrong

However, barring a misdiagnosis, medical experts say that the teen will not recover if she is truly brain dead.

While laymen tend to use the words "coma" and "brain dead" interchangeably, in medicine they mean very different things.

"Coma" is the broader term used to describe a prolonged state of unconsciousness, according to the Mayo Clinic.

Outwardly, it resembles sleep. Doctors may sometimes purposefully put a patient into a coma to give the brain time to heal. Comas rarely last longer than a couple of weeks, according to the clinic; patients can fully regain consciousness or may transition from a coma into a persistent vegetative state. One man lived in a comatose state for years and eventualy he woke up. He  never would have been conscious if his upper brain was completely dead.

Someone in a persistent vegetative state has lost most of his higher cognitive function, but his or her brain shows some activity. The patient may open their eyes or exhibit small movements, but cannot speak or respond to commands, according to the National Institutes of Health. Some patients can recover from this state, according to the NIH.

Both these situations are different from brain death. According to the Uniform Determination of Death Act, an individual is dead when he or she "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."

What that essentially means is that the brain, that is an extremely complex organ, no longer helps the patient function.

The human brain is divided into what doctors call the Lower Brain and the Upper Brain.

The Lower Brain is where the top of the spinal cord goes up through our necks and into our brains  It regulates body functions such as spontaneous breath, reflexes, our heartbeat, body temperature and sleep/wake cycles.

The Upper Brain is behind all the "higher" functions in a person's nervous system. This gives us the ability to use our senses   to see, taste, smell, hear and feel.

"Brain death" means both the upper and lower part of the brain are not functioning. That command center of the body that regulates the central nervous system is unable to perform. However, some function, such as a heartbeat, may linger.

"It's a little difficult for a layperson to understand how a person is dead if the heart is still beating," said Dr. Panayiotis Varelas, director of the neurosciences intensive care service at Detroit's Henry Ford Hospital.

But without brain function, the body eventually shuts down, unless there is medical intervention. Someone on a ventilator may appear to be breathing, but cannot breathe on their own. While the heart usually stops within 72 hours, it could continue beating for "a week or so," Varelas said.

Jahi's mother, Nailah Winkfield, has said, "I would probably need for my child's heart to stop to show me that she was dead. Her heart is still beating, so there's still life there."

The term "brain dead" can be misleading, said Cynda Hylton Rushton, professor of clinical ethics at Johns Hopkins University, because it sounds like a person really isn't dead. If someone dies of a heart attack, doctors don't say they're "cardiovascular dead," for example.

Doctors should be more transparent about the finality of brain death, said Arthur Caplan, director of the Division of Medical Ethics at NYU Langone Medical Center.

Terms such as "mechanical support" or "artificial machine support" should be used to refer to sustaining the functioning of a brain dead person, he said. "No one wants to take away 'life

"Dead is dead," agreed neurologist Dr. Richard Senelick in The Atlantic. "Brain death isn't a different type of death, and patients who meet the criteria of brain death are legally dead."

The American Academy of Neurology updated its brain death guidelines for adults in 2010, asking doctors to follow a step-by-step checklist of some 25 tests.

All criteria in the guidelines must be met before a person can be considered brain dead; however, the legal definition of brain death can vary from different jurisdictions.

The American Academy of Pediatrics added to those guidelines for children. These guidelines advises that there should be two attending physicians involved in the care of the child, and they should make separate examinations separated by an observation period.

Both must determine if the child is brain dead. In making that ruling, the doctors use the currently established criteria; there must not be a conflict of interest.

A person who is determined to be being brain dead may appear to be alive if there is a heartbeat and they appear to be breathing and their skin may still be warm to the touch.

But doctors say there is no life when brain activity ceases. Are they really right all the time?

What follows is a court case that was heard in the Province of  Ontario in Canada in November  2017 in which the parents of a young woman asked a Superior Court judge for  leave to permit videotaping of their 27-year-old Taquisha McKitty for a period of 72 hours, by a number of cameras, positioned at different angles, at William Osler Health Centre, Brampton Civic Hospital,

 Taquisha has been in the hospital since September 14, 2017 after she was found unconscious on a sidewalk. She had suffered from an overdose of drugs.  She was transported to the said hospital where she has remained as of the time this article was written.
She had been declared by the doctors at the hospital that she was brain dead.

 By September 18, 2017, Taquisha required a ventilator to support her breathing.  On September 20, 2017, she was examined by Dr. Hayani, a critical care physician.  He and Dr. Patel, another critical care physician used the testing set out in the Canadian Medical Association Journal Guide    The Applicant seeks leave to permit videotaping of Taquisha  a period of 72 hours, by a number of cameras, positioned at different angles, at William Osler Health Centre, Brampton Civic Hospital (“William Osler”).  Taquisha has been at William Osler since September 14, 2017 after being found unconscious on a sidewalk.  She was transported to William Osler where she has remained. 

By September 18, 2017, Taquisha required a ventilator to support her breathing.  On September 20, 2017, she was examined by Dr. Hayani, a critical care physician.  He and Dr. Patel, another critical care physician used the testing set out in the Canadian Medical Association Journal (CMAJ Guideline) to determine if Taquisha met the criteria for neurological determination of death (“NDD”), commonly referred to as brain death. As both doctors determined that the criteria were met, Taquisha was declared brain dead and Dr. Hayani signed a death certificate on September 21, 2017 which indicated that Taquisha died on September 20, 2017.

This application was commenced on September 21, 2017 and on that date, an ex parte order was granted that Taquisha not be removed from the ventilator.

On September 22, 2017, Dr. Healey, a critical care physician at William Osler repeated the testing for death by neurological criteria.  He found that the criteria for NDD were met.

This matter was in court again on September 28, 2017.  On that day, the judge ordered that the matter be adjourned to October 17, 2017 and in the interim, Dr. Byrne, a physician who was retained by the parents, could make arrangements to do an investigation of Taquisha, including performing tests.  The judge also ordered that Dr. Baker, a critical care physician at St. Michael’s Hospital in Toronto, could examine Taquisha and administer tests to determine if Taquisha met the neurological criteria for death.   All tests were to be completed by October 5, 2017.

When this matter was back in court on October 17, 2017, the Brampton hospital had filed an Affidavit from Dr. Baker.  He assessed Taquisha on September 30, 2017 and found that Taquisha demonstrated all the criteria for identifying and declaring death using neurological criteria as per the CMAJ Guidelines.  While Dr. Byrne visited Taquisha twice, on September 27 and 28, 2017 and made observations of her, he did not conduct any other tests.

By way of oral and then written reasons dated October 21, 2017, the judge found that Dr. Byrne, who had been proffered by the parents as an expert, was not qualified to give expert evidence.  The judge then granted the family a further adjournment to November 6, 2017 for the purpose of retaining another expert.

On November 6, 2017, after hearing submissions, I granted a further adjournment as the family did not have sufficient time to retain an expert to assess Taquisha and then prepare a report to provide assistance to the court.

Movements of Taquisha’s Body

Affidavits sworn by Stanley Stewart, Taquisha’s father, had been filed with the court describing movements of his daughter’s   body since she was declared brain dead. Other Affidavits had been sworn by Marquel Stewart, Taquisha’s brother and Angela Downey, Taquisha’s cousin, describing movement that they observed.  In addition, cell phone videos were filed with the court recording some of the observed movement.

These videos had been reviewed by Dr. Baker, Dr. Healey and by Dr. Shewmon, a neurologist from California.  The family filed an Affidavit from Dr. Shewmon in which he described the movements he observed on the videos. The judge noted that based on his CV, (professional background) Dr. Shewmon has experience in dealing with brain death.

The family’s position was that 72 hours of videotaping of Taquisha is required to provide an objective and systematic assessment of her movements.  Their position was that her movements, which are alleged to be responsive to commands, are indicative of brain function and not spinal reflexes.

Both Dr. Healey and Dr. Baker have given evidence that the movements of Taquisha’s body, as shown on the videos, are consistent with spinal reflexes or automatisms and not reflective of brain function.

The judge noted  that Dr. Healey and Dr. Baker have both had the opportunity to observe and assess Taquisha whereas Dr. Shewmon has only seen the videotapes provided by the family.

Ancillary Tests

According to the CMAJ Guidelines, when it is impossible to complete the minimum criteria for a neurological determination of death, further testing should be performed. While the hospital’s position was that ancillary testing is not required, given the family’s views that Taquisha’s movements were more than spinal reflexes and therefore not consistent with brain death, further tests were conducted by Dr. Baker on October 12, 2017.  Despite submissions from the family’s counsel, (attorney) there was no evidence that these tests were conducted for any reason other than to respond to the family’s views about Taquisha’s movements.

The first test was a Nuclear Brain Blood Flow Study to determine if there is any blood flow to the brain over a period of time.  According to Dr. Healey’s Affidavit sworn November 2, 2017, these tests demonstrated that there was no blood flow and no perfusion of blood to Taquisha’s brain.  According to Dr. Healey, when there is no blood flow to the brain, the brain will die and death of the brain cannot be reversed even if blood flow could be reinstated.

The second test was a somatosensory evoked potentials (“SSEP”) which determines if there are any electrical signals to the brain when the limbs are stimulated.  According to Dr. Healey, the test results indicate that there is no electrical activity in Taquisha’s brain when her limbs were stimulated.  His evidence is that this test also demonstrates that the movements of Taquisha’s limbs are spinal reflexes and not controlled by her brain.

These test results were also reviewed by Dr. Shewmon.  In paragraph 25 of his Affidavit sworn November 5, 2017, he indicated that he was aware that the family was seeking to videotape Taquisha to determine her responsiveness to verbal commands in a systematic way.  He then swore in his affidavit as follows: “Although, given the blood flow results, such a recording may not be expected to demonstrate responsiveness, I believe that the Applicant’s (family) request is not unreasonable in light of the atypicality (uncommon) of the movements, their duration and the Applicant’s conviction that some movements are in response to command.”  unquote

In paragraph 26, Dr. Shewmon deposes that “If such a video were to demonstrate only a chance relationship between the commands and the movements. that could help the family accept the likely spinal origin of the movement and resolve the conflict that faces the court.”


The judge said that he was not provided with any judicial authority (court decisions ) to address the issue of videotaping after there has been a determination of death by neurological criteria. He further stated that he  had not been provided with any scientific literature that supports the proposition that such videotaping should be used in order to determine if brain death has or has not occurred. 

He said, “In reaching my decision, therefore, I have considered the medical evidence of Dr. Hayani, Dr. Healey, Dr. Baker and Dr. Shewmon.  I am also mindful of the Applicant’s  (family’s) belief that Taquisha’s movements are in response to commands and reflective of brain function despite the determinations made by the doctors who have assessed her and the results of the ancillary tests that have now been conducted.` unquote  

The evidence of all doctors who have sworn Affidavits in this matter was that there can be bodily movements after a determination of brain death and that it can be difficult for family members to determine if those movements are spinal reflexes, which are not governed by brain function, or something more volitional in nature. 

While this is a tragic situation, the judge must consider the evidence that is before him to determine if 72 hours of videotaping, by a number of cameras, would be of any assistance to the court given the results from four physicians who determined that the criteria for NDD has been met and the results of the ancillary tests. 

The judge said, “While an adjournment has been granted so that the family  could retain an expert, that does not mean that videotaping should be ordered on the basis that Taquisha will remain on a ventilator pending the adjournment.  I must be satisfied that the videotaping will be of assistance to the court in making a final determination of this matter.” 

There was no evidence before the court supporting the request for the duration of videotaping that is proposed.  There was no medical opinion or scientific support for the proposal that 72 hours of continuous videotaping is required to provide an objective and systematic assessments of Taquisha’s movements. While Dr. Shewmon’s opinion was that 72 hours is required, he did not explain why such a length of time is necessary. 

Furthermore, there was no scientific literature before the court regarding the use of videotaping to determine if brain death had occurred.  The only evidence wasthat Dr. Shewmon was consulted on a case involving Jahi McMath from the United States.  According to Dr. Shewmon, he had experience reviewing her videos in great detail to assess her alleged responsiveness to command. 

Evidence that videotaping was used in one case in the United States, the particulars of which were not before the court hearing the family’s application  is insufficient to support a request for 72 hours of videotaping when the judge  considered the totality of the medical evidence before the court.

In paragraph 24 of his Affidavit, Dr. Shewmon acknowledges that the blood flow test results strongly implies that Taquisha’s movements are likely of spinal origin despite their atypical appearance and duration.  Nonetheless, Dr. Shewmon’s opinion was that videotaping may help the family accept the likely spinal origin of the movements.  

The judge said, “While this is difficult for the family, the court should not make orders for ongoing testing, which I consider videotaping to be, unless satisfied, after considering all the medical evidence, that such testing is necessary and will be of assistance to this court.

Dr. Shewmon relied on an article entitled “Brain Death: Associated Reflexes and Automatisms” authored by Samy Jain and Michael DeGeogia.  That article described observed movements after brain death and noted that head-turning was a movement observed after a finding of brain death.  This differs from Dr. Shewmon’s evidence as set out in paragraph 19 wherein he deposes that head- turning has not been described in the literature on spinal movements in brain-dead patients.  That was the one specific movement described by Dr. Shewmon from the videotape that he observed that he stated was not indicative of a spinal reflex.

Dr. Shewmon deposed that this article suggests that spinal cord reflexes and automatism associated with acute brain death do not last longer than 72 hours.  Dr. Baker’s evidence, however, was that he was unaware of any study where ventilation was continued more than 72 hours after a declaration of brain death. It was also his evidence that there was no reason from a physiological perspective that spinal reflexes would stop after 72 hours.    The judge  was not provided with any scientific literature documenting studies of movement or lack thereof after 72 hours of ventilation that would support the family’s position that the duration of Taquisha’s movements since the date she was declared brain dead are atypical of someone declared brain dead. 

The family’s position is that Taquisha’s movements are atypical given their frequency, intensity and duration.  In paragraph 3 of his Affidavit sworn October 15, 2017, Dr. Baker deposed that he had reviewed the videotapes and that the movements were consistent with spinal reflexes.  He also deposed that the frequency of the movements was not relevant to the source of the movement as spinal reflexes can occur once or continuously.  He also deposed that the nature and extent of the movements was consistent with spinal reflexes, including head movements.   Dr. Baker did not describe the movements to be atypical.

In paragraph 19 of his Affidavit sworn November 5, 2017, Dr. Shewmon deposes that some of the movements which he described as complex, squirming movements that involve multiple body parts, cannot be described with any degree of certainty to be of spinal origin. 

While these two opinions regarding the nature of Taquisha’s movements differ, the judge prefered the opinion of Dr. Baker who has also assessed Taquisha whereas Dr. Shewmon had not. I have also considered the evidence of Dr. Healey whose evidence was that he also reviewed the cell phone videotapes and that the movements were consistent with spinal reflexes and that these were the type of movements that would be expected after a declaration of brain death.  It was also his evidence that that he was unaware of any physiological reason why body movements would stop after any period of time.

Given the test results to date from the various physicians who have examined Taquisha and Dr. Shewmon’s evidence that the blood tests results strongly imply that Taquisha’s movements are likely spinal in origin, the judge was  not satisfied that there is sufficient evidence that videotaping for 72 hours would be of any assistance to the court.  There is insufficient evidence to support the position that the observations regarding Taquisha’s movements that have been made by the various doctors who have assessed Taquisha to date are inadequate to address the nature of her movements and whether those are spinal reflexes or reflective of brain function. 

The family had been granted an adjournment to retain an expert to assess Taquisha and provide a report to the court.  That assessor, who the family indicates should be a neurologist, will be in a position to observe Taquisha during the assessment and comment on her bodily movement. 

The hospital raised issues with privacy and logistical concerns for the videotaping.  Had the judge found that there was support for the request for videotaping for a 72 hour period, he would not have considered such issues to prevent the testing. 

The judge then said, “I therefore decline the family’s request for 72 hours of videotaping of Taquisha.

There is no doubt in my mind that the unfortunate woman is dead. I will explain why.

Blood carries oxygen to all parts of a human body, including the brain. When oxygen is severely limited or lacking for long periods of time, the body shuts down and becomes comatose. If you are comatose, you are unconscious and do not respond to stimuli such as noise or pain. Others will not be able to wake you, and you will not perform any voluntary actions. The eventual outcome of severe hypoxia, if not reversed, is brain death. According to the American Association of Critical Care Nurses, brain death is determined by a patient demonstrating being in a coma, an absence of response to pain, a lack of all the cranial nerve reflexes and apnea, or a failure to breathe independent of machinery. Lack of oxygen in the brain will cause permanent brain damage in as little as four minutes. Another four to six minutes without the brain receiving oxygen, the damage can be permanent. The human brain has around 100,000 miles of blood vessels. The brain needs blood to flow in all those blood vessels. for the brain to function properly. There was no blood flowing in Taquisha’s brain. This means that she would never speak or move on her own volition or do anything that the human brain makes possible for all of us whose brains are functional.  

Taquisha will never, ever become conscious again. Her family has to come to terms with this unfortunate reality. I realize that it is difficult for family members having to come to the obvious conclusion that their loved one will never be alive to them. Keeping their bodies alive is like looking at a doll that moves because it is a battery-operated doll. The feeling of anyone looking at such a doll can hardly be emotional.

On February 25, 1990, at age 26, Teri Schiavo sustained a cardiac arrest at her home in St. Petersburg, Florida. She was successfully resuscitated, but had massive brain damage due to lack of oxygen to her brain and was left comatose. After two and a half months without improvement, her diagnosis was changed to that of a persistent vegetative state. For the next two years, doctors attempted speech and physical therapy and other experimental therapy, hoping to return her to a state of awareness, without success. In 1998, Schiavo's husband, Michael, petitioned the Sixth Circuit Court of Florida to remove her feeding tube pursuant to Florida law. He was opposed by Terri's parents, Robert and Mary Schindler. The court determined that Schiavo would not have wished to continue life-prolonging measures,[4] and on April 24, 2001, her feeding tube was removed for the first time, only to be reinserted several days later. On February 25, 2005, a Pinellas County judge again ordered the removal of Terri Schiavo's feeding tube. Several appeals and federal government intervention followed, which included  United States  president George W.  Bush  returning to Washington D.C. to sign legislation moving the case to the federal courts. After appeals through the federal court system upheld the original decision to remove the feeding tube, staff at the Pinellas Park hospice facility disconnected the feeding tube on March 18, 2005, and Schiavo died on March 31, 2005. The taxpayers paid millions of dollars to care for this unfortunate brain dead woman during the fifteen years she was being fed through a feeding tube. Taxpayers shouldn’t have to be saddled with enormous costs just to provide hope to families whose loved ones are hopelessly permanently brain dead. 

There comes a time  when families of  brain dead loved ones have to accept reality and let go of their beliefs that someday, their loved ones will come back to them as fully functional human beings. 

I don’t know what the present status is with respect to Taquisha, As soon as I learn what it is. I will update this article with that information.

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