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Brain death and organ donation: you can have one without the other.

Brain Death and Organ Donation: You Can Have One Without the Other

Brain death and organ transplantation are so closely linked that is sometimes seems you can't have one without the other. This is certainly true in transplantation, which requires a brain dead corpse whose circulation is maintained by mechanical ventilation to preserve the organs. The converse, of course, is not true: transplantation does not have to be contemplated for a determination of brain death.

But what recourse, if any, do the parents of a brain dead child have if a hospital refuses to release the body of their child to them unless they agree to organ donation? And what response should hospital administrators, hospital lawyers, and courts give when physicians ask them for directives on how to practice medicine? These questions were recently put to the New Jersey Supreme Court in Strachan v. John F. Kennedy Memorial Hospital, a case in which physicians, hospital adminstrators and lawyers all failed in their duties to the deceased's family.

His Organs or No Body

At 4:30 p.m. on Friday, April 25, 1980, twenty-year-old Jeffrey Strachan intentionally shot himself in the head. He was rushed to the emergency room of New Jersey's John F. Kennedy Memorial Hospital. By 5:25 p.m. spontaneous respiration had ceased. The emergency room physician placed the young man on a mechanical ventilator, advised his parents that their son was "brain dead," and asked them to consider donating his organs. At 8:10 p.m. a neurologist confirmed that Jeffrey was dead, and again asked the parents if they would donate their son's organs. When the parents could not decide, the neurologist suggested that they think about it and return in the morning. The neurologist wrote in Jeffrey's chart:

...this patient is brain dead. At present we are working with parents trying to obtain permission to harvest kidney and corneas and possibly heart. Our staff is working with transplant team personnel in this effort. If they get permission to harvest, proceed.

A representative of the Delaware Valley Transplant Program advised the parents that a decision would have to be made by 11:00 a.m. the next day, as thereafter the organs would deteriorate.

On Saturday morning the father informed the attending physician in the ICU, to which Jeffrey had been transferred, that he and his wife did not wish to donate their son's organs and wanted him removed from "life support" systems. The physician asked them to think about it further, but nonetheless wrote in the chart: "The family has decided not to permit the harvesting of any organs [the neurologist] ... is informed; the case is dismissed." The phrase "case dismissed" apparently meant that the organ procurement agency would no longer consider using the organs for transplant.

Jeffrey's father returned to the hospital on Saturday evening. He spoke with another neurologist who confirmed (again) that his son was dead. The new neurologist informed Mr. Strachan that his son would be removed from mechanical support systems "as soon as the hospital administrator tells us the procedure...."

Late Saturday evening, the hospital administrator called the hospital lawyer, who advised him to "run EEGs until we have a clear understanding of what the boy's condition is and on Monday discuss further what to do and if necessary call the Prognosis Committee together." The lawyer also indicated that if the Strachans wanted their son's body before Monday, they would have to obtain a court order. The family was so advised at 2:00 a.m. Sunday morning.

EEGs were performed on Sunday and Monday. At 9:40 a.m. on Monday morning, yet another physician examined Jeffrey and again concluded that he was dead. At 2:00 p.m. he noted in the chart, "patient officially brain dead...." At 2:30 p.m. the parents were informed that the respirator would be removed if they would sign a release prepared by the hospital lawyer. It read:

We have been advised by the attending physicians of our son, Jeffrey Strachan, that he has been declared "brain dead." It is therefore requested that all life support - life-support-death devices [sic] be discontinued as soon as possible. In making this legal request we are fully aware of our legal responsibilities and further hold harmless John F. Kennedy Memorial Hospital and the attending physicians with regard to discontinuance of life support devices.

At 4:05 p.m. all support systems were discontinued. Shortly thereafter another physician, who had not been previously involved in the case, pronounced Jeffrey dead and signed a death certificate. The parents claimed his body almost immediately.

The Lawsuit

The Strachans sued nine physicians, the organ procurement agency, the hospital, and its administrator for, among other things, the emotional harm they suffered as a result of the hospital's negligence for (1) not having proper forms or procedures for turning off a respirator; and (2) improperly withholding their son's body from them. The suits against the physicians and the transplant program were voluntarily dismissed prior to trial. The jury awarded the parents $70,000 on each count against the hospital, and the hospital appealed.

In a 2-1 opinion the Appellate Division reversed, holding that the hospital had no duty to provide consent forms or procedures (since all decisions involved were medical, not business decisions); and that there was no duty to release a body until it had actually been pronounced dead by a physician, a death certificate signed (or a notation made in the chart), and support systems removed. [1] The majority determined that in any event recovery for emotional distress could not be allowed because the parents were merely "bystanders" who did not suffer any physical injury themselves. In a powerful and persuasive dissent, Justice virginia A. Long maintained that the majority had misstated the real issues involved in the case, and thus arrived at a faulty conclusion. she reasoned that Jeffrey was determined dead days before the hwas pronounced dead, and that the parents were not bystanders at all but direct victims of the hospital's negligence. Because of her dissent, the parents had a right to have the appeal heard by the New Jersey Supreme Court.

The New Jersey Supreme Court's


The court ruled it was improper for the trial court to ask the jury to decide if the hospital had a duty to have procedures in place to deal with brain death. Duty is a question of law that must be decided by judges, not juries. Nor was the court willing to fashion and impose a specific procedural duty on hospitals:

The imposition of a paperwork duty does little to advance either the mission of health-care providers or the needs of society. If "procedures" are to be viewed as more than mere "paperwork" and considered indispensable in this area--in the nature of a standard that governs the medical community -- then those procedures should be designed and imposed by those most directly involved, the physicians and the hospitals themselves. That is the business of the medical community itself, not of the court. [Emphasis added.] [2]

As to withholding the body itself, the court began its analysis by noting that while the law has always recognized that the next-of-kin has a "right to bury the dead," the traditional characterization of this as a "quasi right in property" to the body is "somewhat dubious." The court cited Prosser & Keeton on Torts, who concluded that the property notion was fashioned "out of thin air," and that "in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer." [Emphasis added.] [3]

According to the court, the real wrong in failure to release a body is not withholding the survivor's property, but rather "the wrongful infliction of mental distress." This tort, of course, can only be committed after the individual has died. The court concluded that Jeffrey "was pronounced brain dead by the emergency room physician at 5:25 p.m. on Friday," and that at least after the neurologist confirmed brain death Friday evening cthere can be no doubt that on deeming Jeffrey brain dead, the doctors considered Jeffrey 'dead.'" Thereafter, the failure to release the body to the parents upon request "posed a plain affront to their dignity and autonomy and exposed them to unnecessary distress at a time of profound grief."

In contrast to the majority of the Appellate judges, the Supreme Court had no difficulty seeing that the parents were harmed:

Although plaintiffs were told that their son was brain dead and nothing further could be done for him, for three days after requesting that their son be disconnected from the respirator plaintiffs continued to see him lying in bed, with tubes in his body, his eyes taped shut, and foam in his mouth. His body remained warm to the touch....a scene fraught with grief and heartache....

The court agreed with Justice Long that this was not "bystander" case. The parents' distress flowed directly from the hospital's failure to perform a duty it owed them--to release their child's body for burial. The court thus recognized the "longstanding" exception to the rule that emotiona damages will not be awarded to someone who has not been physically injured: the negligent handling of a corpse. However, as the court was uncertain that the jury would have awarded as much money for improperly withholding the corpse had it not also found the hospital negligent for not having proper forms and procedures, the case was sent back for a new trial to focus solely on the issue of damages for failure to release the dead body.

Lessons and Implications

A major problem in medical practice over the past decade has been the trend for physicians to abdicate their responsibility for medical decisions to hospital administrators, lawyers, and courts, resulting in an increasing bureaucratization of medicine to the detriment of both physicians and patients. In Strachan none of the physicians seemed willing to pronounce death until the hospital administration approved. The hospital administration, instead of insisting that the physicians do their job, was also unwilling to assume responsibility and consulted the lawyer. The lawyer advised three alternative procedures, including consulting a judge, all of which could only serve to further frustrate and alienate physicians from the practice of their profession.

The good news is that the New Jersey court, with its own history of inventing procedural mechanisms to limit physicians' liability and make them feel more comfortable, refused to reinforce the bureaucratization of medical practice. It said firmly what other courts will, one hopes, say more often: procedures should be designed by the medical community itself. The courts, of course, may ultimately be called upon to rule on the propriety of the procedures. But courts should not impose them initially, just as they should not routinely permit themselves to be used by doctors, hospital adminisetrators, and their lawyers to avoid taking professional responsibility for their decisions. This case provides an instructive example of how hospital administrators and lawyers often forge "solutions" to medical practice "problems" that are disconnected from biological reality and compassionate medical practice, and serve instead to destructively bureaucratize medicine.

Since the cause of action in Strachan was based on the suffering of the family of a deceased individual, the ruling has no application to lawsuits brought by the families of living patients. When the patient is still alive, the hospital's duty is to the patient, not the family who remain traditional "bystanders." However, the ruling might apply to one narrow class of "living" patients: individuals in a persistent vegetative state (PVS). This same court has previously argued that such individuals "do not experience ... any benefits or burdens," and that decisions about their care are appropriately made by their families. [4] If this language is taken at face value, and if a family reasonably demands that a relative in PVS be removed from support systems, and the hospital negligently refuses to comply, causing the family emotional distress, it is possible that this court might permit the relatives to sue the hospital.

Though this case occurred long before "required request" laws, the physicians initially involved were extremely aggressive on organ donation. The procurement agency seems to have acted properly and professionally, but the physicians and hospital had no clear idea what to do. Indeed the hospital administrator and lawyer seemed to have had little knowledge about brain death, since the suggestion that the case be decided by a "prognosis committee" or a judge is ludicrous. The most either a committee or a court could do would be to ask the neurologist who had previously determined the patient to be dead, if the patient was in fact dead; courts and committees add nothing to this factual determination.

In the required request era, it is essential that no request for organs be made until after the patient is pronounced dead; if the request is refused, the body should immediately be released to the family. Making requests prior to the pronouncement of death leads not only to real conflicts of interest (between treating the patient as a person and as an organ source) but also to the type of suffering and confusion apparent in a case like Strachan. [5] It could also reinforce the two primary reasons the public gives for not signing donor cards: fear that doctors "might do something to me before I'm really dead" and fear that "doctors might hasten my deaht." [6]

Great discomfort and uncertainty about brain death persists. Surveys consistently show that administrators are uncertain about brain death, and this translates into inappropriate actions. Release forms, for example, are totally unnecessary and inappropriate to making a decision not to treat a corpse. Perhaps it is time to stop using the phrase "brain dead" and simply use the term "dead."


[1] Strachan v. John F. Kennedy Memorial Hospital, 507 A.2d 718 (NJ Super A.D. 1986).

[2] Strachan v. John F. Kennedy Memorial Hospital, 538 A.2d 346 (N.J. 1988).

[3] P. Keeton, D. Robbs, R. Keeton, and D. Owens, Prosser & Keeton on Torts (St. Paul: West, 1984), 5th ed., 537.

[4] George J. Annas, "In Thunder, Lightning or in Rain: What Three Doctors Can Do," Hastings Center Report 17:5 (October/November 1987) 28-30.

[5] For a more detailed discussion see S. Martyn, R. Wright and L. Clark, "Required Request for Organ Donation: Moral, Clinical, and Legal Problems," Hastings Center Report 18:2 (April/May 1988), 27-34.

[6] Task Force on Organ Transplantation, Organ Transplantation Issues and Recommendations (Washington, DC: U.S. Dept. of Health and Human Services, 1986), at 38.

George J. Annas is Utley Professor of Health Law and Chief, Health Law Section, Boston University Schools of Medicine and Public Health.
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Author:Annas, George J.
Publication:The Hastings Center Report
Date:Jun 1, 1988
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