Brain Death Is Under Attack: New Legal Challenges

This week, in JAMA Neurology, some of the most distinguished neurologists in the world bemoan the high level of variability in how U.S. institutions assess brain death.  Institutions vary in terms of: (a) expertise required, (b) number of exams, (c) method of testing, and (d) use of ancillary testing.  

The authors speculate that one reason clinicians feel no need to adjust their brain death standards is that they feel they work fine.  There has never been a legitimate false positive determination of brain death.

Alieta Eck, Jahi’s attending
physician in New Jersey
But that is precisely what Jahi McMath’s lawyers allege they have.  Jahi was determined to be dead in December 2013.  But two lawsuits allege that she is not dead now.  

Here are key allegations from the December 23 federal lawsuit seeking to amend or correct Jahi’s California death certificate:
  • 16: Jahi is not brain dead.  So, any possible cessation is December 2013 was not “irreversible.”
  • 51: “There has never been a case like Jahi’s ever before in the history of the US medical or judicial system.”
  • 186: The cessation of brain function “sufficient for the court ruling in December 2014 turned out to not be ‘irreversible cessation of all functions of the entire brain’ but rather, at most, a temporary cessation of some functions of some portions of Jahi’s brain.”
  • 227:  Jahi “does not now (and therefore did not ever) meet the criteria for being declared dead.”

Here are allegations in the state court December 23 opposition to demurrer:
  • There are new facts after the prior adjudication in December 2013
  • Jahi’s condition is far from “static, fixed, or permanent”
If either of the McMath lawsuits is successful, that would be the “false positive determination of brain death” that the JAMA Neurology authors say has never before been identified.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.