We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.

A physician asked the following question:

While rounding on one of my own patients in the ICU, I just saw a neurologist explaining to a patient’s parents that their son, who had driven his motorcycle helmet-less into a wall, had reached the point of brain death. The father got insanely angry and began to scream that the hospital just wanted to dump his son because he was on Medicaid. He screamed he’d sue.  The neurologist stayed cool and just called administration to assist. But this got me thinking – can we be sued for malpractice for declaring a patient brain dead?

The neurologist was absolutely right to stay cool.

The likelihood of a medical malpractice action based on alleged inappropriate determination of brain death is essentially nil. That is because the damages issue is lacking – the patient would have been deprived of, at most, a few days of lingering in a terminal condition.

However, there are some important issues that doctors should bear in mind when involved in a brain death situation. Even though a malpractice claim is unlikely, complaints can still be filed to state board or peer review committee if a family member or staff member objects to how the matter was addressed.

  1. Technical issues

These are critically important.

As codified under the Uniform Determination of Death Act and in all states and in the District of Columbia, brain death means that there has been “irreversible cessation of all functions of the entire brain, including the brain stem.”

The American Academy of Neurology practice parameters on brain death outline the process for determining this, including:

  • Unresponsiveness, absent brainstem reflexes and absence of effective respiratory movements in the presence of adequate oxygenation and arterial pCO2 of 60 mm Hg
  • Clinical or radiologic evidence of an etiology adequate to explain the clinical findings
  • Adequate observation period to guarantee irreversibility
  • Exclusion of reversible factors that can confound assessment, such as drug intoxication or body core temperature less than 90°F

The element that is most likely to be trigger technical error is the apnea test because it can be complicated by issues such as sedatives, neuromuscular blockers, facial trauma, or preexisting pulmonary disease with high CO2 retention.

In the situation that the questioner described, physical trauma to the patient’s face, for example, should be accounted for carefully.

If there is clinical uncertainty, serial exams or confirmatory tests (e.g.; EEG, blood flow studies) should be employed.

  1. Dealing with the family

(i) Addressing the concerns of the family

The most likely medico-legal issue for the physician involved in a brain death case is family resistance, due either to religious or emotional issues, that then ripens into a complaint because the family feels “pressured” to accept what the doctor is telling them about their loved one.

For example, in the case the questioner described, the circumstances of the accident might raise the question of  suicide, something the father may be having a great deal of trouble coping with, making him resistant to accepting medical reality.

In such a situation, the best medico-legal self-protection is also the most appropriate care: address the family’s actual concerns.

The reason for the resistance should help determine the response. A religious issue might warrant calling in pastoral care. An emotional issue should be dealt with by a calm discussion with the physician and a patient advocate and, if the family is still uncertain, convening an ethics committee consultation.

(ii) Dealing with the correct family member(s)

It is essential to find out if the patient has an advanced directive and, if so, who is their medical care proxy. Only that named individual has the standing to make final decisions for them.

Don’t assume that the next-of-kin is empowered to act for the patient in terms of withdrawing supportive measures. Allowing the wrong individual to make a dispositive choice might be an actionable lapse.

That general rule having been stated, it is also essential to know how your state treats advanced directives in the brain death setting.

The legal problem: the authority of a named proxy may apply only to treatment decisions and lapse upon the patient’s death.  If your state views it this way, a patient’s statement in his advanced directive that he “does not want to be maintained in a terminal condition” would actually not keep the power of attorney for healthcare valid. The reason: “terminal condition” means a condition in which the patient is dying but does not mean actual death. And a patient who is brain dead is not dying, but dead. This would make that advanced directive invalid based on the diagnosis of brain death.  In such a situation the decision-making capacity would likely default to the next-of-kin.

If you are not certain as to the scope of an advanced directive, don’t try to figure it out on your own.  Refer it to the hospital’s legal department because following their advice is a defense if a complaint is later made you acted under instructions from a now-invalid authority.

If other family members disagree with a named proxy (if there is a valid advanced directive) or with the next-of-kin (if there is no advanced directive), it is up to them to get a court to appoint an alternative. The treating physician must step away from any such conflict other than to answer basic medical questions. He should not side with any faction of the family as such can later be perceived as wielding undue influence, the doctor substituting his judgments for that of the family.

(iii) Overriding the family

Despite all appropriate explanations from the treating physician and the intervention of a patient advocate or ethics committee, if the appropriate decision-maker remains unwilling to accept the fact of brain death, the treating physician should not argue. Instead refer the matter to administration.

The options for the hospital are to either seek a court order to have the patient removed from life support or to transfer the patient to a facility that will honor the family’s wishes.

The treating physician should expect to be called as a witness if a judicial hearing is held.

While any such matter as described in (ii) and (iii) is pending, the physician should take no further action to reduce supportive care even if such is in accord with the patient’s expressed wishes in an advanced directive and/or the orders of a named proxy or next-of-kin.

(iv) Organ donation

This is a potential minefield because families that perceive the doctor to be hovering for organs may believe the doctor was precipitous in declaring their loved one dead.

Therefore, if the patient is a documented organ donor it is important to not broach the issue until brain death has been definitively confirmed and the family can be told that the patient is now legally dead and that any support will be maintained only until the organs are “donated” (never say “harvested” to a family or let it be said by staff where they can hear it!) so as to temporarily maintain those organs in a healthy condition.

If, despite the patient’s expressed intent to be an organ donor, there is resistance from the family, the doctor should not take a stand and get into a conflict with the family. Instead, the doctor should explain any time-based limitations on tissue health and offer to bring in a patient advocate or pastoral care to discuss the matter with the family.

If this is rejected, the matter should be referred to administration because to simply proceed based on what the patient had specified when alive may be actionable.  This is because, as with autopsies, many states recognize a quasi property right in a loved one’s remains that entitles the family to reclaim the body in its intact form unless they waive that right.  This situation then becomes one for the hospital’s attorney, not the treating physician, to deal with.

Summary: Although family members may become agitated and threaten to sue in brain death cases a malpractice action should not be expected because there is no sustainable damages claim. Physicians involved in these cases should, however, be concerned with family or staff members making a disciplinary complaint. Careful documentation of brain death, including attention to technically complicating factors, respect for the religious and emotional concerns of family members and compliance with valid advance directives are therefore essential. The treating physician should maintain a professional distance from any conflicts that arise among family members and should refer any intractable issues to administration to be settled through a legal proceeding. Organ donation should not be discussed until death has been established and should not occur over the wishes of the family irrespective of what the patient may have specified.

[Medical Justice note: Frequently, conflicts emerge when the patient’s family hears the words “brain death” instead of “death.” This linguistic parsing is confusing for families who likely do not understand that “brain death” equals “death.” If the family hears “brain death”, it might assume that heart and lungs need to be supported pending the expected miracle. By being upfront with patient’s families and not tip-toeing around the issue of death, it’s more likely follow-up steps will be less acrimonious. To state the obvious, an unexpected death is a tragedy for a patient’s family. Many doctors are appropriately sensitive to this and will afford adequate time for relatives to congregate at bedside before support is withdrawn. This act of kindness helps a family heal. Whether or not organ donation is an option, the teams that oversee this process are exquisitely skilled in its nuances. Often it’s a good idea to bring them into the decision making process (for approaching the family), generally after the diagnosis of brain death is made. Very few cases require referral to a court to determine the outcome. Courts generally defer to a doctor’s clinical diagnosis of brain death as being adequate to initiate withdrawal of systemic support.]

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