Jahi McMath was declared brain dead following complications related to tonsil / sleep apnea surgery at Children’s Hospital in Oakland California. Jahi developed post-op bleeding and went into cardiac arrest. Several doctors examined her and declared she satisfied criteria for brain death. And she was indeed declared dead. Under California law, brain death equals death.
The hospital wanted to remove Jahi from the ventilator. The patient’s family filed a court action arguing that the hospital should not have the power to do so. Removing the ventilator would cause cardiopulmonary arrest. The family believed it was premature to make that call.
When patients are declared brain dead, the doctors and hospitals usually wait a little while to allow family members to gather and see the patient one more time. I am unaware of any patient declared brain dead maintaining homeostasis and circulatory status for any significant length of time. Even if left on a ventilator, such patients typically go into circulatory arrest within days or weeks at most. That said, with aggressive circulatory, nutritional, and endocrine support, it is theoretically possible to prolong this state.
The judge prevented the hospital from removing the ventilator until the family and hospital had a chance to mediate next steps. As I write this, Jahi has been moved to a separate facility (that accepted the transfer). Ventilator and circulatory support will continue – but not at Oakland Hospital.
This is a tragic case. You would have to have a heart of stone not to feel empathy with the family. Death is final. Death is irreversible. But, there are a number of consequences that merge when doctors are blocked from making the final call on death.
There will almost certainly be a lawsuit related to Jahi’s care. In California, damages are calculated based on economic damages – such as lost wages and medical expenses; plus noneconomic damages – such as pain and suffering.
Economic damages: For a 13 year old, there will likely be no payment for lost wages. Medical expenses incurred until the moment the patient was declared dead would be included in the calculation. Whatever that number is, it can be calculated with certainty.
Noneconomic damages: For years, non-economic damages in California have been capped at $250,000. So, the maximum calculation here would be $250,000.
What if the declaration of death is rendered moot? Then economic damages has the potential to explode. The plaintiff would present a life-care plan estimating the cost of keeping such a patient in a facility for a long time period. Using numbers similar to those for a patient with persistent vegetative state, that number could be in the tens of millions. In fact, aggressive treatment of such a patient might even cost more than management of patient with persistent vegetative state. It’s probably closer to that of a patient with high level quadriplegia.
If you’re the doctor who has a $1M / $3M professional liability policy, what do you do? I don’t know. Presumably, you’re in the same sinking boat as the hospital.
For patients in a persistent vegetative state, it’s a bit easier for the families to consider settling. That patient will qualify for state and federal assistance. So, even if the family does not collect tens of millions to maintain a life care plan, there is a theoretical source of funds to make sure the patient is taken care of.
But, when a patient is declared brain-dead, there is no patient, per se. I am skeptical that Medicare or Medicaid (or any private insurance carrier) would pay to maintain treatment of an individual declared brain dead. Which brings us back to Children’s Hospital and the doctors who work there. If this case goes to court, and brain death is declared insufficient to define death, the jury will deliver an eye-popping verdict that affect all doctors taking care of critically ill patients.
The family’s bills from the new facility will be too staggering to consider any alternative to a multi-million dollar settlement. There will be no third party funding to make up the gap.
Let me be perfectly clear here. I make no comment on the motivations of Children’s Hospital or Jahi’s family. My baseline assumption is that Children’s Hospital is adhering to the long standing medical ethical principle that doctors are not obligated to provide futile care. I further assume that Jahi’s mother is grieving for her child and wants to do everything possible for her.
If courts are the final arbiter of death, we will need a different mechanism tham professional liability insurance to pay for the unintended consequences of this tectonic shift.
There is a book out there being widely read which suggests those who are “brain dead” are not. (Proof of Heaven: A Neurosurgeon’s Journey into the Afterlife by Eben Alexander). Since it was written by a physician it has some clout. I have not read the book but apparently he stresses the magical or supernatural aspects of his “brain dead” experience rather than dwelling on the medico-legal aspects implied by it.
If I were involved in this level of care I would be reluctant morally and practically to “unplug” the so-called brain dead at this point.
Laura Fisher
Let’s not forget. Heart muscle with no oxygen= death. Likewise, brain with no oxygen=Death!
Don’t forget, when arterial blood from the internal carotid artery does not enter the brain, it is “dead” as confirmed with nuclear medicine scintigraphy.
Ms. Fisher,
I am a neurosurgeon. I have dealt with thousands of cases of the severely brain injured from trauma or stroke or infection and hundreds of cases of brain death. Do not confuse a vegetative state with brain death. They are not similar. Brain death represents the irreversible death of the whole brain including all of the brain stem responsible for the most basic of reflexes and functions related to breathing. All states recognize the significance of brain death and equate it with “death” of the individual. The “when” in time that clinical death occurs is determined by physicians. Daily in hospitals around the world patients suffer cardiac arrests. When this happens the “code team” responds, the chest is compressed, life support and all the chemistry that goes with it started immediately. At some point in the process however it becomes the duty of the senior physician in charge of the code to determine when the process stops and when “to call it”; when the patient is dead. The physician doesn’t go out and ask the family if the code should be stopped. Imagine a situation where the family demands that the code process continue indefinitely. Keep pumping the chest and ventilating the patient until rigor mortis sets in or the corruption of the flesh causes the entire hospital to be unsafe from the resulting disease and its effects. No, the doctor in charge, and not the patient’s family will determine when death occurs.
Finally, my fellow neurosurgeon Dr. Alexander was never brain dead and yes his book represents the eloquent description of an amazing experience.
As a physician, I have been involved in many no codes, and brain dead situations, but never considered that i would have to make this decision. Twenty years ago, at age 81, my father was hit head on by a car traveling at 50mph. He flew up over the hood of the car and through the windshield. When paramedics arried he was in in full cardio-pulmonary arrest, but aggressive treatment at the scene resurrected him and he was transferred to a hospital. Neurosurgical consultation, EEG, and MRI all confirmed that he was brain dead. When I reached the hospital 12 hours later, I father’s head was so swollen that I would not have recognized him. He also had two fractured femurs, broken ribs, and a ruptured spleen. Following Florida law concerning brain death, he was given another EEG 24 hours later and all life support was ended. I made the decision and seeing my father and knowing the facts of his case made the decision to end life support easier. My mother had also been hit by the same vehicle and suffered multiple long bones comminuted compound fractures and was heavily medicated not consulted. Unbelievable as it may sound,
my father was sued by the driver and his wife. They lost. The Florida State highway patrolman who testified in the case that if it weren’t for my father’s age, he would have survived his injuries. I refused to attend the trial as I didn’t think I could have sat still and remained quiet.
Agree with Laura above.
The key sentence in the article above is this: “I am unaware of any patient declared brain dead maintaining homeostasis and circulatory status for any significant length of time.” This collapse occurs within 1-3 hours of brain death in animals. (Acta Anaesthesiol Scand 2009; 53: 1239–1250)
The need for anesthesiologists’ involvement in beating heart organ donation speaks to this collapse in humans.
The fact that she still has a beating heart and a BP argues against brain death.
Rob: “The fact that she still has a beating heart and a BP argues against brain death.”
How is that true? Brain death is defined by clinical neurological examination – and supplemented by cerebral electrical or blood flow studies. Brain death is NOT defined by the presence or absence of beating heart or BP.
Is your point that a beating heart and sustained BP being present a few weeks after injury means the clinical brain exam was not performed properly?
I’m guessing Jahi is being maintained on pressors and hormone replacement for homeostasis.
A SPECT scan or a PET scan would demonstrate any brain activity. If the brain is actually “dead”. it would have become necrotic and caused sepsis and cardiac arrest by now. The brain is inactive due to ischemia. Hyperbaric oxygen with a SPECT scan before and after 100% 02 at 1.5ATA pressure for 1 hour would probably reveal the possibility of recovery of brain function or not. Few if any facilities in the USA are equipped to treat the patient. It is available in some nations around the world. Look up stokes and hyperbaric oxygen on the web for information.
I would expand on Dr. Schmidt’s comment.
Dr. Eban Alexander (as referenced above) was not only not brain dead. It’s unclear that his described “experience” even took place DURING the time he was in his coma. His described experience may have been his brain putting together an emerging narrative as he was regaining consciousness. Dreaming is a different type of altered state of consciousness; but, consciousness nonetheless.
Finally, how would Dr. Alexander even know when he took his journey? When his EEG was flat or when he was coming to?
No. Just that some level of brain function, as correctly identified in the article, is necessary to maintain cardiovascular activity and tone, endocrine function via the pituitary, subsequent renal function and electrolyte balance, etc.
I’m not arguing that the criteria were inappropriately applied in Jahi’s case, just that the criteria themselves may not be complete or accurate. There are what, nine different criteria in use across the US? Can they all be correct?
The recent identification of hippocampal-Nu complexes deeper than EEG flatline shows that we haven’t plumbed the depths of the human brain.
Dr. Stanley:
The clinical criteria for brain death really implies brainstem death. It seems plausible that islands of viable cerebral cortical tissue might remain even in a patient with brain (brainstem death). So, a scintilla of flow to one of these islands would not, in it of itself, imply absence of brain death. Brain death is defined clinically. We can press for changing the definition of brain death if we want. But, by consensus – at least among most practitioners, we have defined it for years by using neurological examination.
Rob: “I’m not arguing that the criteria were inappropriately applied in Jahi’s case, just that the criteria themselves may not be complete or accurate.”
Accurate for what end? Recovery of substantive function? Existence of consciousness? The different protocols for determination of brain death still focus on clinical brainstem examination.
I guess the deeper question is what if one patient, based on current criteria, actually survived against the odds and made a functional recovery. Would that prompt us to keep all patients on full support for weeks? Would we not harvest organs for transplantation?
Until we develop an updated consensus, we’re stuck with clinical brainstem examination with supplemental tests as the determining criteria.
I am a neurologist. Involved in writing the initial guidelines for pediatric brain death criteria.
Who is going to sue who? If the patient (Jahi) is dead, which she was (even has a death certificate), then the hospital is delivering care to a corpse. Insurance does not pay for this and the responsibility falls to the family. As stated, generally hospitals offer some slack for family to gather. But not days and weeks. I cannot see a jury rendering a judgment against the hospital for the after death care … or even a judge allowing the case to get that far. We don’t know whether there were pre-death issues that might be litigated.
Women who are brain dead (i.e., dead) and pregnant have been supported for many weeks until the infant is delivered by C-section. None, however, from as early in gestation as the current scenario in TX which involves a fetus.
Brain dead individuals do not breath on their own but require a respirator. They may have spinal cord reflexes that look like “life” but this really represents the order in which organs die. In a cardiac death, the brain ceases to function in 5 to 10 minutes, the muscles take several hours, passing through rigor mortus and then the stop and become flaccid. Hair and finger nails can continue to grow for days or longer. In brain death the sequence changes. The brain dies first and then the other organs follow, the speed of which depends on the support and person other medical issues.
These are sad cases. They are increasingly sad when there are disagreements. We do not know enough to understand the latter but can hope there is resolution and closure.
This is such a sad story. As an ENT, I can’t stand the media referring to this death as occurring after “routine tonsil surgery”. Jahi was morbidly obese with severe OSA. The fact that her insurance allowed post-operative ICU observation is unheard of, unless there are significant comorbidities.
Economics and “brain-death” aside, can someone explain how this girl was transfused and ultimately died without any reports of a return to the OR to gain hemostasis? Can someone explain why no one thought to put their finger or a sponge-stick on the bleeder till the surgeon arrived? Have there been any reports stating whether the surgeon was called? Oral bleeding within 4 hours of tonsillectomy surgery is an absolute indication to return to the OR, and I’m miffed why this did may not have occurred.
Generally, there is so much “waste” in taking care of patients in their last 2 weeks of life. In cases like these, everyone in the ICU knows the patient will have no possibility of regaining any quality of life, but family members rarely sign the DNR order and life may be prolonged for months with tracheotomy and PEG.
The conundrum in this case revolves around the unexpected death, the age of Jahi, and the family’s many reports of meaningful extremity motion to verbal stimuli. I have no doubt the McMaths do not want to keep a corpse alive: they’re not convinced Jahi has passed away, and given that, how could a parent move their child from a ventilator to the cemetery?
Since brain death typically runs it’s course over several weeks as was stated elegantly above, don’t put this family into such an uncomfortable situation. This has led to a feeling of coercion and bitterness. It’s probably best for all to let the McMath’s keep Jahi’s vital signs functioning until God is ready to receive her.
One ENT’s opinion.
Eric 🙁
“Since it was written by a physician it has some clout.” -Laura Fisher
>Let’s not forget, one purpose of writing a book is selling the book. And, I have read, as many other physicians have, many outrageous, unsupported assertions by fellow physicians.
“The “when” in time that clinical death occurs is determined by physicians.” -John Schmidt III, MD
>Didn’t you get the memo? We are ‘providers’, not ‘deciders’. Within today’s politically correctness, it is irresponsible for the physician to make that decision without the involvement of lawyers, judges, politicians, family, and the public at large, provided financial gain can be wrestled from the grieving in the name of ‘compassion’.
“Unbelievable as it may sound, my father was sued by the driver and his wife.” -Howard Robinson, MD
>Totally believable. I was once sued for a bad outcome case that took place while I was 50 miles away.
” This collapse occurs within 1-3 hours of brain death in animals. (Acta Anaesthesiol Scand 2009; 53: 1239–1250)” -Rob
>Animal hearts have been ‘grown’ and begin to ‘beat’ in a jar. (http://www.nature.com/nm/journal/v14/n2/full/nm1684.html) (http://www.nature.com/nm/journal/v14/n2/extref/nm1684-S2.mov)
I am an anesthesiologist and critical care physician. Eric M. Joseph, MD I believe is correct to question the “routine tonsil surgery” mantra. I don’t know the entire story, and likely never will. But, I do know that I am routinely surprised with the unexpected. ICU observation clearly indicates major concerns on the part of the physicians, however, with the evolving staffing standards of today, ‘ICU’ and ‘close observation’ are not synonymous. With today’s ‘push’ for operating room productivity by medical care industrial complexes and hospitals, I only hope for their sake they were not making an emergency OR unavailable while using it for an elective operation. The family needs time, and that is all they can get right now. May Jahi Rest in Peace.
Dr. Vargo,
Keep pumping the chest.
Dr. Schmidt: Only the dying chest of Liberty. BTW, for your reading pleasure:
http://www.americanthinker.com/2014/01/government_zombies_see_dead_people.html
stay healthy my friend (:
I concur with that neurosurgeon (Dr. Schmidt) and ENT surgeon above! We physicians are
the executive decision makers of medicine! The family needs to let their little girl head to
heaven!
it will be a better place for her!
Hooray for Eric Joseph!
He’s the first one to point out that this was NOT A ROUTINE procedure. Every single news story talks about this young girl who “died after a routine surgical procedure.”
But severe obstructive sleep apnea is never routine. And a severely overweight girl with no chin and a bullneck is also never routine!
And worse than the word “routine,” is that major news outlets are describing her as “dying following a botched routine operation.”
“Botched?” How do they know that it was botched? This horrible result could have happened with excellent care.
And worst of all is the tv doctor pundits don’t have either the knowledge or honesty to point this out, instead fanning the flames of an ignorant public trying to demonize doctors (which is now being used in California as an excuse to repeal MICRA.)
Bleeding does happen after tonsillectomies; in fact I bled after my own tonsillectomy, and it was due to no fault of my surgeon.
And can you imagine trying to intubate a scared, fat teenager with no neck spitting up blood in an ICU setting? That would be a nightmare for the world’s best anesthesiologist and impossible for anyone else.
On another topic – and just speculating – others on this blog have wondered by she wasn’t returned to the OR. Of course no one outside her surgery team knows. My guess is that she bled, was understandably confused and uncooperative; couldn’t be intubated, perhaps was even traumatized during an attempted intubation, and lost her airway. My bet is that she died from losing her airway and not hypovolemic shock. One day we may find out.
The lack of the public to understand brain death and for the tv docs to accurately cover this story shows the ignorance of the public and why jury trials are unreliable.