Nov 11 2008
Another Brain Death Controversy
These stories are always wrapped in an unimaginable personal tragedy. In this case 12 year old Motl Brody has died of brain cancer. He has been pronounced brain dead by his doctors, who report that there is no brain activity, not even in the brain stem (the most primitive part of the brain).
Brain death meets the legal definition for death – so Motl Brody is dead. However, his body remains in the hospital, on a ventilator, and receiving medication to keep his heart functioning. This is because his family are orthodox Jews and according to their literal interpretation of scripture death is defined as the heart stopping. Therefore, in their eyes Motl still alive and treatment should continue.
According to reports, the family is not in denial about his condition and the fact that he has no chance of recovery. This is not about clinging to a false hope. Rather, they are simply trying to adhere to the dictates of their faith.
This is not a unique occurrence. Typically in this situation the hospital simply waits for the heart to give out as well, in which case the controversy is resolved. However, Motl’s heart may keep beating for days or weeks if ventilation and medication continue.
Neither is the belief that life is defined by a beating heart unique to orthodox Judaism. Two years ago Cho Fook Cheng, a 72 year old Buddhist, was declared brain dead following a cardiac arrest, but his family fought the removal of care because his heart was still beating. They proclaimed their Buddhist belief that life and consciousness reside in a beating heart.
Several important issues arise out of these situations. The first is a straightforward question of medical science – what are the biological implications of clinical brain death? Here there is no controversy. By the conservative standards in place, if there is adequate evidence for loss of all brain activity or lack of any blood flow to the brain, there is a zero chance of recovery. Medical errors are always possible, but short of a flat-out mistake, there is no coming back from brain death.
There is also every reason to believe that the absence of all brain activity means the absence of consciousness. There is certainly no credible evidence for consciousness absent brain activity.
It is therefore perfectly reasonable to legally equate brain death with death. In short, people who are brain dead are dead.
When brain death has been properly documented, therefore, what are the obligations of medical professionals? At that point (and again, this is not controversial) the deceased is treated with the respect due a corpse, but not the rights of a living person. Often, out of consideration entirely for the family and loved-ones, those who are brain dead may be kept briefly (hours, certainly less than a day) on life support, to give the family a chance to say farewell and to accept the situation.
Traditionally in this situation physicians are gentle and caring, but firm and unwavering in their diagnosis and the implications of that diagnosis for care. In most cases, this works very well. Most families are reasonable (even if understandably emotional) in these situations and everything goes smoothly. The press does not report on these cases. They do when the family decides to defy the clear dictates of the medical facts.
The potential harm done by such cases is increasingly important. Keeping someone who is brain dead in an intensive care bed on a ventilator may be using up resources that would then not be available for another patient. ICU beds can often become scarce when a hospital is busy. Further, the expense of such futile care can be enormous – and this is a financial burden the health care system can not afford.
The consequences asside, the primary ethical consideration here is who gets to decide what treatment is appropriate. This is very different from a situation where a person or family is refusing medical interventions suggested by doctors. Adults have the right to refuse whatever interventions they want for their own reasons. (Children are a different matter.) Here we are talking about families demanding medical intervention that is not warranted.
Both legally and ethically this is not controversial ether. Health care professionals cannot be compelled to deliver medically futile care. There is no ethical compulsion to do so. In these cases, when a person has been legally declared brain dead, the hospital and doctors are no longer ethically or legally compelled to treat them as anything other than a corpse (even if that sounds cold). They are certainly not compelled to give any medical treatment, which is by definition futile.
I have no doubt that if in this and similar cases if the hospital simply removed all treatment and shipped the remains down to the morge, they would prevail in any lawsuits that resulted. But there’s the rub – they want to avoid those law suits. Therefore they seek legal permission to do so ahead of time. The family may also seek a legal injunction against removal of care. So cases like this can wind up in court, even when there is no real legal issue at stake.
It seems to me that such cases should be decided ahead of time by law or precedence – if the legal definition of brain death is met, then doctors and hospitals are allowed to withdraw all care and are protected from being sued simply for doing so.
But the thorniest question here is the religious one – do individuals and families have the right to impose their religious beliefs on the system? Again, if they are simply refusing care on religious grounds, that’s their right. If treatment needs to work around their religious beliefs, that is appropriate. But do they have the right to demand medically futile (and arguably unethical) care based upon their personal religious beliefs. I believe the answer is no.
Arthur Caplan, a professor of bioethics at the University of Pennsylvania,agrees. He is quoted as saying:
Doctors are well within their rights to say, “We are stopping.” I don’t think medicine can become subservient to religious, spiritual or mystical hopes and beliefs concerning how to manage death.
Personally, I also think this is mistake from a religious point of view. Religious faith is not a proper basis for a scientific claim. It is easy to understand why the belief emerged thousands of year ago that the point of death can be defined as the moment at which the heart stops beating. That was a practical definition for a pre-technological society. But why try to apply that today? Why should we be beholden to the scientific beliefs of primitive societies from the distant past?
I also don’t quite understand how, in these cases, the family concludes that treatment must continue. Even if you take as an article of faith that the person is still alive because their heart is beating, that does not mean you must continue all care. Again, this is not about taking steps to actively end the person’s life, but rather just removing futile interventions. Take them off the ventilator and stop the medications, (let nature take its course) and their heart will stop beating fairly quickly.
In other words – how we define the moment of death in these cases is only an issue if one also believes that being alive means that all medical interventions, no matter how aggressive and futile, should always be given. Is it not reasonable and more consistent to say that, even if the person is still technically alive by scriptural definition, their condition warrants removal of heroic measures to keep the organs going?
Finally, I think it would actually be a great favor to families for these situations to more legally defined ahead of time. As I said, these cases are always tremendous personal tragedies. I don’t think the family is being helped in any way by having to wrangle between common sense, the medical system, and their religious beliefs. It would be better for all concerned if, once pronounced legally brain dead, medical care was removed as a matter of course. The option of demanding futile care for the dead should not exist.
57 Responses to “Another Brain Death Controversy”
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This is a very tragic situation, and a situation where religious beliefs are compounding that tragedy.
There are a number of circumstances where providers may refuse to participate in procedures that they find objectionable from their personal moral perspective; participating in performing an abortion is something some individuals find themselves unable to do.
Participating in keeping the organs of a corpse alive after the brain is dead may be a procedure that some providers would be unable to participate in. I would find myself unable to waste resources on the dead when the living don’t have enough. Those resources are not only financial, individuals providing care to a corpse as in this case could well burn-out that much sooner.
I sent this to some friends and one, who happens to be a “buddhist”, took issue with the bit about the “Buddhist belief that life and consciousness reside in a beating heart”
He said “That is not even remotely an aspect of Buddhism.”
My first instinct is to say “perhaps not in your sect”, but I really don’t know much about it, could you by any chance guide my internet searching?
I’m sure flying planes into battleships isn’t part of his particular brand of Buddhism either.
Yeah – there are many sects of Buddhism. The Buddhists in the article I linked to clearly held this belief. That’s really the only point.
mannik5000 – Like all major religions, Buddhism has many different branches and beliefs. Buddhism – like Christianity – absorbed local traditions so many animistic beliefs have become part of different local varieties of Buddhism. The secular form of Buddhism seems to be promoted almost exclusively in the West, though highly theistic and animistic versions also exist here (Tibetan Buddhism being highly theistic and animistic). It sounds like your friend has learned a Western secular version of Buddhism and is unaware of how it’s practiced by most people in Asia (which is not unlike how most people are everywhere in the world – including our countries – about religions they’re born into and just do because that’s what your family does).
I very much agree with Steve. My brother was pronounced brain dead a few years back – we had him unplugged after a short goodbye. As Steve said, the doctors were gentle but firm that there was nothing that could be done. Luckily there were no religious considerations we had to consider.
Keeping someone on ‘life support’ longer than necessary (apart from a short goodbye, which helped me a lot with dealing with the loss) could have major consequences for other people needing the care (of doctors/machines) which are kept occupied unnecessarily.
Here in the Netherlands doctors are cannot be prosecuted for terminating treatment which is “medically useless”, even if it results in the death of a person. Of course such termination should ideally happen after consulting close relatives, but the wishes of the relatives are not binding in any way.
I’m Buddhist and I don’t take offense to this. You are right, Buddhists all over the board when it comes to stuff like this. My own particular flavor, Theravadan with a dash of Japanese Zen and pragmaticism; tends to stress the use of reason and critical thinking skills, so science is very important.
Which surprises me about Tibetan Buddhism and the Dalai Lama. Though they tend to be much more mystical, the Dalai Lama has stated that if science and religious belief contradict each other, one should change one’s belief first, not the other way around.
jamieguinn – Tibetan Buddhism is interesting because it’s also about theocracy since Tibet was a theocracy with the Dalia Lama at the head. (A rather smart way to maintain institutional power over the long term really.) There’s been quite a signficant conflict going on between different factions within Tibetan Buddhism for a while now that involves murder, demonic rituals and power. This is an internal power struggle, as far as I know it’s not related to the other issues regarding Chinese support for an alternative Dalai Lama to suit their political purposes.
The Dalai Lama does seem to have a keen personal interest in science which can give the impression that Tibetan Buddhism is more secular than it is when practiced by Tibetans. Debating scriptures is a vey big part of Tibetan Buddhism – for monks. Monks in other world religions have similar practices and, of course, for all its repression the Catholic church also played a role in advancing knowledge…particulary through philosophical/theosophical debate.
So, it seems that while the Dalai Lama as an individual is a big fan of science and perhaps even not a theist at all, and is very good at selling Buddhism in the West, Tibetan Buddhism as practiced by everyday Tibetans and even many monks is really quite different than how the Dalai Lama presents it and how it’s often practiced and perceived in the West.
Nothing wrong with taking what works for oneself and leaving the rest of course. I’ve found Buddhist philosophy very useful and some Westernized versions can and do – if one gets rid of the gods, priests and monsters and detaches it from its roots – get along very well with science. (An argument can be made that Buddha was advocating no gods and being one’s own master – but that can be said of many prophets/reformers and we do tend to impose whatever narrative is the most convenient to us onto writings that are often quite ambiguous and transcribed and translated many, many times.)
Religion should not enter a hospital. specifically for reasons like these where the science conflicts with the crazy belief
The Dali Lama has said that He is a non-theist.
As part of an assignment I wrote for my specialty training program a few years ago, I came to the conclusion that whatever my individual spiritual beliefs were, within my practice as a doctor, I felt that secular humanism probably came closest to describing the values of the medical enterprise. Respect for an individual in his/her world, and using that as the measure of appropriateness of treatment should mean that the patient would not be unreasonably denied access to medical technology that the doctor could provide, and do so ethically. For example, at present surgeons do not deny operations to most obese patients or smokers except where the anaesthetic risk is high enough to warrant it, even though many have strong personal beliefs about weight and smoking.
If doctors are expected to put aside their individual spiritual beliefs (or in fact their non-beliefs) then I think it is reasonable for relatives and patients to accept that the religious beliefs of the brain-dead person do not have to be the final arbiter of their medical treatment.
You don’t need to be in ICU to have a ventilator & IV drugs pushed.
Move the kid to another room (with the ventilator) if space in the ICU is an issue.
With not even a functioning brain stem I can’t imagine he’s more than a few days away from cardiac death.
Does the legal definition of death vary from country to country?
If so is it possible to change from being dead to being alive by crossing a border?
This is partly off topic but I here a related argument from HIV Denialists. The diagnostic definition of AIDS differs varies from country to country. HIV Denialists argue that therefore AIDS doesn’t exist
So according to them, if the heart of one of their kin is accidently stopped and restarted, then we have created a zombie.
Neat…but like religion in general…pretty useless.
Chris,
You are correct generally, but in this case he was dependent on pressors to maintain his heart function. In most hospitals only ICU nurses are trained to administer and monitor this treatment.
Even still, this is a side point. In a step-down unit or even on a regular floor, he would be using limited resources at great expense.
In most cases, cardiac death does quickly follow, making the controversy moot. Hospitals and physicians will often just wait for that to happen, as any legal course is likely to take longer than just waiting for cardiac death. But in this case the physicians believed that with the treatment that was being demanded the patient (or at least his organs) could live a few weeks.
daedalus – Despite the Dalai Lama’s claim there are no gods in Buddhism, Tibetan Buddhism is rife with devas, demons and supernatural beings and appeasing rituals. (In fact, the internal conflict which has led to murder is between those who fully support tradition and superstition and those who hope to modernize Buddhism to make it acceptable to secular or quasi-religious Westerners.) It’s also a very heirarchal and authoritarian religion, even though some people like to believe it’s not. I like what I’ve seen and read about the Dalai Lama but he is also partly responsible for promoting a lot of pseudoscience. He’s hardly a man without a political or social agenda!
Not necessarily true. Although the median survival of the body after brain death is usually on the order of a few days even with full life support, there have been documented cases of brain dead patients whose bodies have been kept alive for up to five or six months. (Why this was done, I have no idea.)
Also, most brain dead patients require continuous IV drips of agents to keep their blood pressure up. Patients on continuous cardiac pressor drips cannot be monitored outside of an ICU; the potential for blood pressure fluctuations is too great. Moreover, few stepdown units can handle patients on a ventilator, and none of them can handle a patient on multiple pressors. That’s because that’s not what they were designed to handle.
A. From the end of the November 6, 2008 Washington Post article:
“Zuckerman, the family’s lawyer, said he is challenging the hospital’s plans on grounds that the family’s religious beliefs must be respected under federal law.
Legal experts said that courts usually defer to the judgment of doctors in such cases.
“The case law is clear: Once you are dead, you are dead,” said George Annas, a law professor at Boston University who specializes in health law and bioethics.
Annas added that New York and New Jersey have provisions in their laws or regulations that make exceptions in similar instances for Orthodox Jews. The District does not.”
B. From an email I received on Novevember 7, 2008:
“Motl was transferred to Children’s National Medical Center from a hospital in New York, where he was receiving treatment. The only reason for such transfer was the promise of better medical treatment at Children’s National. If Motl had remained in New York, he and his parents would have been protected by New York’s compassionate law, which respects religious sensitivities in such circumstances. Having accepted the child with the promise of better treatment, it is utterly unconscionable for Children’s National now to trample on the legal rights to which Motl and his parents would unquestionably have been entitled, had they remained in New York.”
C. I do not see where Dr. Novella mentions this information about different state laws nor that the case is being brought under federal law, which I am sure includes constitutional protections.
D. Dr. Novella probably knows at least as much as I do about Fundamentalist Christians, but his statement “This is because his family are orthodox Jews and according to their literal interpretation of scripture death is defined as the heart stopping” shows a lack of knowledge of orthodox Jews and their beliefs, which I can state because I am an orthodox Jew with access to relevant information.
E. Contrary to the apparently pure speculation of Dr. Novella about how orthodox Jews make decisions about the definition of death, the issue of brain stem death is still being debated by leading orthodox Rabbis and takes into consideration the latest scientific knowledge with consultation with leading medical doctors. I do not know if this debate has been settled, but when a real life situation is presented, orthodox Jews would consult a leading orthodox Rabbi who would make a decision in the specific situation at hand. Here the Rabbi’s decision is that the 12 year-old boy is still alive and to take him off life support would be murder. Obviously, removing his still beating heart for a transplant would be murder (please note that I have no idea if that is a consideration here). In matters of murder, an orthodox Jew would follow the more strict standard, whether under Jewish law or the law of the land.
F. After reading the other comments, I request that the other commenters here try to restrain from making further negative remarks about a religion about which they are all very ignorant.
Arthur Golden of Jerusalem Israel
Arthur, I’m not going to speak to anyone else’s comments, but I think your concern about Dr. Novella’s statements might be due to his ambiguous sentence contstruction rather than his actual views.
His sentence leaves it open to interpretation as to whether “their” in the sentence refers to Orthodox Jews or to the specific family. My reading is that he meant the family, but I could be wrong. Assuming he meant the family, I would guess that Dr. Novella didn’t make it up, but rather he learned that those were the family’s views from his source. Again, maybe I’m wrong.
“After reading the other comments, I request that the other commenters here try to restrain from making further negative remarks about a religion about which they are all very ignorant.”
Which comments are you referring to, specifically? Most of the discussion seems to be about Buddhism, the only person who I can find a post who can be considered to be commenting on Orthodox Judaism specifically is eiskrystal and once again thanks to ambiguous sentence construction it is not clear exactly who eiskrystal is referring to.
What would be the definition of “primitive part of the brain.” Does that just mean no higher cognitive function?
At the risk of being provocative, surely the actual brand of religion is, to a large extent, irrelevant. This case is purely an example. The point is that any religion based on supernatural nonsense (all of them?) should have limited input in these situations.
“What would be the definition of “primitive part of the brain.” Does that just mean no higher cognitive function?”
The more primitive parts of the brain evolved earlier, are shared amongst wider groups of animals, are larger relative to total brain mas in “more primitive” animals, play more important roles in more primitive animals, and deal with simpler tasks in humans. In mammals the brain stem is the most primitive part of the brain, followed by the allocortex, followed by the neocortex. The latter two are together considered the cerebral cortex. The last is only found in mammals, but birds are extremely smart without it so “more recently evolved” does not necessarily mean “better”.
I also put “more primitive” in quotes because the animals living today have been evolving just as long as we have, so they are not really more primitive. However, they diverged from our ancestors prior to the evolution of more complex brain structures so they either lack them entirely or, more often, have different structures that play a similar role. Therefore it is not implausible that if we share one brain feature with them but not another, our most common ancestor had that feature. A spinal cord, for instance, is a feature we have in common with a wide variety of animals including earthworms and insects. On the other hand, if we don’t share a feature or if we have different structures playing the same role, it is not implausible that we diverged before that structure or those two structure evolved.
Just with regard to one of Orac’s comments, a potential reason for maintaining full support on a person who has been declared brain dead is in the case of early pregnancy; there are reports of support for up to 15 weeks in order to alow the fetus to mature before delivery:http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1459115
[...] Terry Schiavo 2: Electric Boogaloo? – Everyone’s talking about the Motl Brody, a 12-year-old boy who’s been dead since last week even though his body continues to function. I personally agree with the medical consensus that brain dead equals dead, but a whole bunch of science bloggers have gone into depth on this story, and those blogs are well worth the read: Orac, P.Z. Myers, and of course Neurologist Steve Novella. [...]
arthur golden> You seem to be arguing that Orthodox Jews do not define death as anything to do with the heart but this case clearly illustrates that they do.
According to modern medicine and I suspect- the law, the boy is dead, his brain is not functioning, he has no chance of recovery and without intensive and continuous medical intervention his other organs including his heart would shortly stop functioning. For a rabbi to declare it as murder to stop treatments when such treatments present absolutely no chance of a recovery for a brain dead patient it highlights that at least in this case the Orthodox Jewish view completely contradicts the scientific perspective.
Also, nobody is suggesting that they remove his ‘still beating heart’ so there is no need to pull on those emotional strings to shore up your position.
Arthur Golden is correct that New York has a religious exception to their statutes on brain death. But his comment contains an apparent contradiction – why would New York have an exception for Orthodox Jews if they did not have a scriptural definition of death they believe trumps the modern scientific one?
Perhaps he is referring to only the process by which the scriptural definition is determined. I was referring only to this case, in which news reports indicate the family believes, based upon their faith, that a beating heart is the definition of “alive.” I am sure there is far greater complexity to this issue – there always is.
But it’s irrelevant to this case.
Sorry to derail the comments, what they call their particular brand of superstition IS completely irrelevant.
There is another Rabbinical tradition which is quite at home on Neurological, and which Dr Novella practices with the best of the Rabbis, that of pilpul.
If we take this to the logical (or illogical) extreme, if “life” is defined by a beating heart, then all that is needed is the heart. There was a chicken heart that was kept alive and beating in tissue culture for a considerable time (20 years).
http://en.wikipedia.org/wiki/Alexis_Carrel
Is that all that it takes for a person to be considered to be “alive”, a snippet of their heart growing in tissue culture and beating? Presumably since a heart beat takes some time, and a person is not considered dead between heart beats, a person can be considered “alive” so long as their heart has the capacity to beat. During hypothermia a person’s heart beat slows considerably. Hibernating animals are “alive” even though their heart rate has dropped by many fold. If a heart beating in tissue culture is alive, slowing that heart beat through cooling would not kill it. Presumably stopping the heart by freezing it would not kill it, so long as it could be revived.
I think there are very few who would consider that preserving a few living heart cells frozen in liquid nitrogen is “the same” as keeping someone alive, and that the person who thaws those cells and allows them to “die” is guilty of murder where the person who excised the specimen and destroyed the remainder of the individual is completely innocent.
From a very real and pragmatic viewpoint, the frozen heart cells and the brain dead boy connected to machines keeping his heart beating are “the same”. The chances for recovery are exactly the same, zero.
Another religious figure once said that “the law was made for man, not man for the law”. What is the purpose of adopting the definition of “beating heart equals being alive”? Who is being served by that stance and at what cost? The boy? His chances of recovery are zero. He is beyond feeling pain, or anything else. The egos of the rabbi, lawyer, family “proving” they are right by making the hospital jump through hoops? The power of the rabbi in the Orthodox community by “fighting” for beliefs that he says are important but which are doing nothing positive for anyone?
I would like to thank arthurgolden for giving important information regarding this case.
Who can give me the experimental, double-blind evidence that you are using to base your definition of death on?
So many of the commentors seem to be experts on relgion and religious belief. Would the commentors please include the education they have (years of seminary or university education) when making comments? It would be helpful in evaluating the comments.
It may be of interest- I grew up with and know many doctors. Each one wants hospice care so they can die at home…(An odd side note)
Which is a fine example of why those ignorant of the details are adding noise instead of signal. The Jewish laws regarding death are only approximately as based on “superstition” as the US laws are:
Don’t do murder.
After that, you’re dealing with jurisprudence. Several thousand years, in fact, of a process quite similar in many ways to US jurisprudence — and without recourse to a legislature to change the fundamental statutes.
As a result, the definition of “death” is not easy to change. It’s also not a bad one at all considering antiquity (the original test, unless I misremember, was simply “breath.”) Heartbeat is a relatively (as such things go) modern revision since it’s a bit harder to be sure of than breathing.
It may seem primitive, but considering that the “brain death” standard arose in my lifetime and took a while to be accepted even so, the time frame is an eyeblink for a legal tradition predating the Romans, much less the United States.
Sonic – “So many of the commentors seem to be experts on relgion and religious belief. Would the commentors please include the education they have (years of seminary or university education) when making comments?”
Throughout the greater part of the world, it would seem harder to go through life WITHHOUT years of reilgious instruction/education/indoctrination.
Sonic > “So many of the commentors seem to be experts on relgion and religious belief. Would the commentors please include the education they have (years of seminary or university education) when making comments? It would be helpful in evaluating the comments.”
Wohoo the first time my academic history is relevant and requested! My undergraduate degree (4 years) was in ‘Study of Religions (& Tibetan)’ and my masters (1 year) was in ‘Social Anthropology’ with my dissertation focusing on Japanese religion. My planned PhD is very likely to be in the field of study of religion. So I can honestly say religion and religious belief actually is my academic speciality.
G. I wish to note that Dr. Novella did make a comment in which he confirmed my factual statement in point C. by stating that “Arthur Golden is correct that New York has a religious exception to their statutes on brain death.”
H. However, I believe that Dr. Novella is still wrong when he then writes “But his comment contains an apparent contradiction – why would New York have an exception for Orthodox Jews if they did not have a scriptural definition of death they believe trumps the modern scientific one?” Again, as I wrote in point D., I think Dr. Novella is assuming orthodox Jews are like Fundamentalist Christians, who take scriptures literally. To the best of my knowledge, there is no “scriptural” definition of death, but orthodox Jews listen to the decisions of leading Rabbis and as I wrote in point E., the issue of brain stem death is still being debated by leading orthodox Rabbis and takes into consideration the latest scientific knowledge with consultation with leading medical doctors.
I. When I asked at point F. that I request that the other commenters here try to restrain from making further negative remarks about a religion about which they are all very ignorant, I first meant the factually inaccurate statement by Dr. Novella in his orignal blog entry that:
“Personally, I also think this is mistake from a religious point of view. Religious faith is not a proper basis for a scientific claim. It is easy to understand why the belief emerged thousands of year ago that the point of death can be defined as the moment at which the heart stops beating. That was a practical definition for a pre-technological society. But why try to apply that today? Why should we be beholden to the scientific beliefs of primitive societies from the distant past?”
Again, as I wrote above, this is not the process by which orthodox Jews make decisions. A quick Google search of “brain stem death” and “Jewish” would find as top hits a 2000 article in the British Journal of Medicine, which I recently read. Did anyone else here bother to try to find out some factually accurate information or did they merely speculate based on their irrelevant western cultural upbringing, even if they took courses in a college about other religions?
J. Although the District of Columbia does not have a law as does New York, the family is going to federal court, where the U.S. constitutional protections override the local law. So it seems to me the the religious beliefs of the family are very relevant (ever heard of the Bill of Rights in the U.S. Constitution that includes freedom of religion?).
Arthur Golden of Jerusalem Israel (but born in the U.S. in 1946, lived there in a western cultural environment until age 49 and a 1968 graduate of Harvard Law School who knows something about U.S. law)
Oops! Since I wish to be factually accurate, but I am getting old – I wish to correctly state that I graduated Harvard Law School in 1971; 1968 is the year I graduated the Wharton School at the University of Pennsylvania.
AG: “ever heard of the Bill of Rights in the U.S. Constitution that includes freedom of religion?”
As I undersatand it, (and I am not a constitutional scholar, or even an American), the relevant amendment (1st?) says something like “Congress shall pass no law respecting the establishment of a religion” or something like that.
I’m not sure how you get from there to “this family can use their religious beliefs to compel a hospital to waste money on expensive and ineffective treatments for a corpse”.
That was a little bluntly put, for effect, but don’t think I am unsympathetic to the familties position – I just don’t see how what they want is protected by the constitution – it would seem to be explicitly rejected (according to my own, amateur, understanding).
Can you elaborate?
oops – “family’s”…
Doh.
Arthur – you seem to confirm my previous comment without acknowledging it – “Perhaps he is referring to only the process by which the scriptural definition is determined.”
You say this process is not a literal interpretation of scripture. Fair enough – but then what is the process? Apparently Orthodox Rabbis feel it is within their purview to decide what constitutes biological death, and for their authority to override the consensus of scientific medical opinion. What gives them that authority? Is their deliberation not based at all on scripture?
Following your advice on search terms, I found this:
“As Jewish law is hundreds if not thousands of years old, it does not deal with the issue of a brain stem dead patient on a ventilator. However, the definition of the moment of death is addressed. In one source, physical decapitation of an animal is said to determine death even if there is some degree of subsequent movement, provided that it is “pirchus be’alma” or like the “severed tail of a lizard that twitches spasmodically.”[3] Another source states that in the case of an individual trapped under a fallen building, absence of breathing may determine death even if cessation of the heartbeat is not established.[4] Progressive Jews, who accept brain stem death as a valid determinant of death within the Jewish tradition, argue that it is physiologically equivalent to decapitation–that destruction of the brain stem means inability to breathe spontaneously and that movement of the heart as it beats falls into the category of “pirchus.”[5]”
So it is based upon Jewish law and tradition that is thousands of years old, not technically scripture. BTW – reference [4] is given as the Talmud. Is that not scripture?
Here’s the link: http://findarticles.com/p/articles/mi_m0999/is_7244_320/ai_62495499/pg_1?tag=artBody;col1
I agree with what I think Dr Novella is saying. To a skeptic, “scripture” means all religious writings handed down from antiquity and all derivative works when ever derived.
One self-proclaimed religious person’s interpretation is indistinguishable from another’s unless one allows for facts from outside the system of religious writings. Unless facts and observations in the “real world” trump the religious traditions they are not actually being allowed. If the facts of this case were allowed to trump the religious sensibilities, the brain dead boy would have been disconnected long ago.
In this case the parents have filed suit to prevent the hospital from running further tests of brain activity. The parents and the court do not have the medical expertise to dictate what tests should or should not be given. This type of micromanagement of medical care puts the hospital in an impossible situation.
I fully expect the health insurance provider to disallow the extended stay in the ICU as “not medically indicated”, because in fact it isn’t. Who pays for it then?
To JamesW:
Next time take 10 seconds to do a Google search and you will find that the First Amendment to the U.S. Constitution (collectively, the first ten amendments are known as the Bill of Rights) is:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
So from your memory you did not remember the second clause which is “or prohibiting the free exercise thereof.” Dr. Novella has often written about how faulty human memory can be and on this point of pure science, we are in agreement.
Understanding how an orthodox Jew makes a decision is a much more complicated matter and with only an hour before I start the Jewish Sabbath, I cannot respond until Sunday morning. But I will state that the Talmud (and the Mishna from which the first point is taken) are not the equivalent of scriptures, they are more like U.S. Supreme Court decisions and therefore binding precedent on subsequent Rabbis, but with a sophisticated system for change when circumstances warrant, including taking into account the latest scientific advances.
Arthur Golden of Jerusalem Israel
Arthur, I am sure you are aware of a number of precedents where doctors cannot be compelled to perform procedures they consider violate their own religious sensibilities, such as performing abortions.
Medical ethics do not allow parents to dictate any and all medical procedures on their minor children irrespective of medical need. The religious sensibilities of parents cannot (within some bounds) compel medical personnel to provide unnecessary medical treatments or to withhold necessary medical treatments.
The first amendment does not provide for unlimited medical care to a dead individual irregardless of the religious beliefs of the parents. The first amendment does not compel medical personnel to perform medical procedures they consider inappropriate. There could be individuals with a sincerely held religious belief that a long dead corpse will reanimate itself and at that instant require immediate ICU treatment. A hospital cannot be compelled to keep corpses in the ICU due to that religious belief, waiting for the expected miracle.
My understanding of Orthodox beliefs and practices is incomplete. Medical personnel in the hospital consider the boy to be dead. Contact with a dead body makes one unclean according to Jewish law. Would an Orthodox Levite be willing contact the boy’s body so as to perform the necessary medical functions to keep the heart beating? Or would that make the Levite unclean?
Steven Novella:
Not really. In the present discussion it’s much more like a compendium of case law.
As noted above, every nontrivial legal tradition has some definition of “alive.” In an earlier comment you refer to “biological death,” as though this is the ultimate authority. However, “death” in the present discussion is a legal concept, and mapping from biology to law is far from trivial; there are intrinsically elements to the legal issues that are totally outside of the scope of science.
The legal definition of “alive” is, therefore, a social construct related but not subservient to the biological one.
An example is the question of forebrain death. I’ve been involved in cases of frontal trauma where the forebrain ended up as marmalade, but the patient was otherwise in fine shape [1] — good circulation, good respiration, etc. From a purely scientific perspective the sensible thing to do would have been to start organ harvesting immediately, but for (very sound) social reasons we-the-society are very reluctant to go there.
[1] Yes, I am aware of the consequences of intracranial bleeding in such cases. That’s one of the reasons we can afford to wait, no?
Arthur,
I find it somewhat odd that you would invoke the First Amendment here. After all, what this case is about is the family’s attempt to impose their religious beliefs on the hospital. It’s very explicitly a matter of “I believe X, therefore you must do Y,” which is precisely what freedom of religion forbids.
So when it comes right down to it, you’re invoking the First Amendment in an attempt to justify a violation of it!
arthurgolden: “federal court, where the U.S. constitutional protections override the local law”
I’m not a graduate of any law school, let alone Harvard, but my reading of section 1 of Amendment 14 is that US Constitutional protections override local law in every jurisdiction, since the constitution is the supreme law of the land. I’m not aware of any federal legal definition of death, so my understanding is that the federal courts would be obligated to use the law of the local jurisdiction.
I find it hard to see that one’s free exercise rights obligate medical personnel to provide medical care to a corpse.
Arthur, I was surprised by your misinformation and misdirection as to New York state law on Brain Death, stating as you do, that the law contains an exception.
It does not. It is silent on the issue.
The reason is that there was a 1984 decision by the New York Court of Appeals (People v. Eulo), which addressed this issue specifically, deciding on the side of scientific definitions, INCLUDING brain death.
In 1985, due to this decision, the State created the New York State Task Force on Life and the Law. From their website:
Convened in 1985, the New York State Task Force on Life and the Law has a mandate to develop public policy on a host of issues arising from medical advances, including the withholding and withdrawal of life-sustaining treatment, assisted suicide and euthanasia, assisted reproductive technologies, and organ and tissue transplantation. The Task Force members include leaders in the fields of law, medicine, nursing, philosophy and bioethics, as well as patient advocates and representatives of diverse religious communities. The New York State Commissioner of Health serves as Chair of the Task Force.
Their first project was to look at the issue of Brain Death.
The Task Force’s 1986 report, The Determination of Death, proposed that both the brain death standard and the traditional standard of cessation of heart and lung activity should be recognized for the legal determination of death in New York State. *The Task Force concluded that legislation to establish brain death as a legal standard in New York was not necessary in light of the Court of Appeals’ decision.* The Task Force instead proposed regulations to ensure that the standard would be uniformly applied in health care facilities and to provide additional guidance about the determination of brain death.
As part of its deliberations, the Task Force examined the questions raised by persons who object to the brain death standard on religious or moral grounds. The Task Force recommended that responses to individuals with religious or moral objections would best be addressed by health care facilities at the community level. It therefore proposed that hospitals should develop policies, in consultation ,with community representatives, that would reasonably accommodate the beliefs of those who reject the brain death standard on religious or moral grounds. In July 1987, the New York State Hospital Review and Planning Council adopted the regulations developed by the Task Force.
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So, for you to state in your postings that a person in New York has some sort of special protection under the laws of that state is, to be charitable, wrong.
Whether you are simply ignorant of the laws of New York, or made a deliberate misrepresentation, I don’t know. But I don’t much like people trotting out their credentials as proof of their expertise, then posting wrong and misleading information.
Shame, sham
I find it hard to see that one’s free exercise rights obligate medical personnel to provide medical care to a corpse.
It would violate free exercise, since it would be forcing someone else to participate in your religion. The free exercise clause protects people from the government preventing them from exercising their religious practices. But it does not mean you can force someone else to participate in your own religious practices because that would violate their rights. That is what is going on here, the family is trying to force other people to participate in their religious practices. There is nothing wrong with saying “I believe life ends when the heart start being” (besides it being incorrect), but that does not mean you can force someone else to support a legally dead person. Your right to free exercise does not mean you can force someone else to participate in your free exercise. Your rights to your religious beliefs does not allow you to impose those beliefs on others.
If you look at the Lemon test, the current standard for testing first-amendment religion cases, should give us some clue as to whether this would qualify as a first-amendment violation:
1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.
We can replace “government” with “hospital”. The first one is easy, the hospital’s secular purpose is to follow the law and to maintain the best quality of care for still-living patients. The second also passes, since the primary effect is to follow local law and to keep hopeless medical cases from eating up extremely scarce resources. The third case is slightly more difficult, but this policy does not entangle the hospital with religion any more than anything else dealing with death would. It entangles with religion only to the extent that is necessary to deal with an issue that has religious implications. For instance rules dealing with holding of bodies of murder victims might violate religious rules regarding when bodies have to be buried, but I have no doubt this would pass the lemon test.
Before proceeding any further with this discussion, I have tried to check the factually accurate information and I find that I have questions for Dr. Novella. In his original blog entry, Dr. Novella writes “When brain death has been properly documented…” but do we have factually accurate information about this status of 12 year-old Motl Brody? The November 8, 2008 article linked by Dr. Novella states “The dispute wound up in court Sunday [November 2, 2008], when the family asked a federal judge to block the hospital from doing any further tests for brain activity.” But I just found an updated November 13, 2008 article from AOL that states
“In court papers, the hospital said it wants to administer final tests to confirm that Motl is brain dead and then shut off life support. The family asked a federal judge to block the hospital from doing any such tests.”
What does it mean that the hospital “wants to administer final tests to confirm that Motl is brain dead?” Was Dr. Novella providing factually accurate information that “brain death has been properly documented?”
Later, Dr. Novella discusses that “if the hospital simply removed all treatment” but are we at that stage yet? Also, from my understanding of the actual position of orthodox Jews, we do not know if the family is demanding the continuation of all of the treatment or in accordance with their religious beliefs is willing to allow the removal of much but not all of the current treatment, which would soon result in the end of the heart beating, satisfying the family’s understanding of death. On the internet, I saw information that both sides requested a postponement of the court hearing so they could work out a reasonable compromise instead of the hospital’s and Dr. Novella’s position to simply remove all treatment.
There are just too many inaccurate statements about orthodox Jews for me to try to respond, so I have decided to not do so at this point. It still bothers me that such statements have been made.
Arthur Golden
Baruch Dayan Emes
While still on life support, Motl Brody’s heart stopped beating on Friday night, so there is no question about his death, about two weeks after the hospital requested to the family to agree to remove life support.
It seems that the hospital declared him dead on Tuesday November 4, 2008 and that it was the hospital that initiated the lawsuit on Monday, November 3, 2008 while the family’s lawyer was trying to negotiate a compromise (but the family’s lawyer seems to have obtained a preliminary injunction late Sunday night, November 2, 2008 to stop the hospital from removing life support). I have no information about what further tests were done by the hospital before they declared him dead.
Concerning the federal law, the family’s lawyer “Mr. Zuckerman’s response cited the federal Religious Freedom Restoration Act, under which an individual’s religious practices must be accommodated, even when they conflict with a federal law, unless there is a compelling governmental interest against such accommodation. There is no compelling governmental interest in this case, according to Mr. Zuckerman, that would overcome the Brodys’ religious rights to have their son continue to receive life support.” (quoted from “Yeshiva World News”).
Arthur Golden
CORRECTION – I was in error when I wrote that “the family’s lawyer seems to have obtained a preliminary injunction late Sunday night, November 2, 2008 to stop the hospital from removing life support.” I made this assumption from the Washington Post newspaper report relied on by Dr. Novella which stated “The dispute wound up in court Sunday [November 2, 2008], when the family asked a federal judge to block the hospital from doing any further tests for brain activity.” But the actual court filings from the family’s lawyer, posted on the internet since November 7, 2008 (four days before the original blog from Dr. Novella) shows that the family, through its lawyers in Washington (since the family was in New York and does not have internet access) did contact a federal judge on Sunday night, November 2, 2008 but did not initiate any court proceedings, not even a preliminary injuction, and while trying to negotiate a reasonable compromise, the hospital took the initiative to go to court.
I look forward to Dr. Novella issuing CORRECTIONS for his more significant factual mistakes before I have to bring them to his attention.
Arthur Golden
The legal definition of brain death varies from state to state. However, from a medical point of view, it can be adequately documented by bedside exam (including a couple of specialized examination techniques to try to provoke signs of brainstem activity). No final or definitive tests are required, but they are sometimes done in order to reassure the family or end a controversy.
I did assume that if the physicians and hospital concluded that Motl was brain dead they had made an appropriate medical determination. In such cases when I am relying upon the media, I do not have direct access to the patient or the medical data. Confidentiality prohibits it.
Also – in this case there did not seem to be any controversy over whether or not Motle meets the definition of brain death. Therefore there was no reason to delve into this non-controversy. Rather, the controversy was whether or not the family could demand continued medical treatment of someone who did meet criteria for brain death but whose heart was still beating – so that is what I focused on.
Sometimes one card the family plays in such circumstances is to demand more tests to confirm brain death, even when such tests are not strictly necessary. If that is going on here, it’s a side show.
This case, however tragic, demonstrates how our medical system is bogged down by costly legal constraints. It also demonstrates how the lack of enforceable medical standards, supported by government, also drive up costs.
Virtually any patient in a hospital, or their family, can wreak expensive havoc on a hospital and its staff by threatening legal action to obtain additional procedures or a longer hospital stay.
Similarly, a complaint to the state or local board overseeing hospital care can trigger a costly, humiliating investigation, and a prolonged hospital stay despite the complaint being trivial.
Finally, it is the legal system that makes the removal of incompetent physicians and staff a tremendous effort. The legal rights of even an egregiously performing doctor are astonishing. The medical community would remove the bad eggs from the system quickly, but the legal system hampers this.
We will never bring our health care costs under control until medical personnel can make decisions unhindered by legal and bureaucratic constraints and until the financial incentive to provide marginal care is removed.
KMMD,
I did not notice you comment when I posted earlier today.
While you are technically correct that it is not a “law” in New York State but a “regulation” promulgated in accordance with the laws of New York State – 10 N.Y.C.R.R. sect. 400-16 (1987) – this is what I was referring to.
By regulation, New York requires medical personnel to make a reasonable effort to notify family members before a determination of brain death and to make “reasonable accomodation” for the patient’s religious beliefs. In practice, this procedure has been completely satisfactory to meet the needs of all orthodox Jews in New York because when invoked it prevents a determination of brain death.
Your negative language against me is grossly overstated and I feel it is highly improper. I hope you will avoid such conduct in the future.
Arthur Golden
Thank you for an interesting discussion.
Since Dr. Novella does not seem to understand my concerns about the CORRECTIONS that should be made and I am quite busy with other urgent matters, I will have to let matters remain as they are.
Arthur Golden
Arthur – I wouldn’t take it personally. It’s simply that anyone asking for special pleading on religious grounds is going to receive little sympathy on this blog.
So far, Arthur, it does not seem that you have actually addressed Dr. Novella’s argument. You have provided nitpicks about timing, complaints about differences between different states, and criticized his knowledge of the details of Orthodox Jewish religious law, but none of this is at all relevant to the actual argument.
So let’s get back to the real issue here. What are doctor’s obligations when it comes to death? Are hospitals required to waste valuable and scarce resources and manpower on medical cases with absolutely zero probability of success just because the family demands it, thus denying that care to other people who have some chance to benefit from it and putting an extreme strain on an already over-taxed health care system? When do the rights of a dead body trump the rights of the still living? What sort of care can a hospital be forced to provide and to who?
The treatment the boy was getting had absolutely no chance whatsoever of benefiting him, either in improving his condition or in lessing pain and suffering. There are people, however, who desperately need the care that is being totally wasted on him. The local law on the issue is clear. The rules of medical ethics seem clear. Considering health care is a scarce resource, where do the rights of this boy’s family end and the rights of still living people begin?
TheBlackCat – You raise a good point. What do the ethics this particular school of Orthodox Judaism (since there are many and they don’t all agree with each other on all matters) say about causing the death and suffering of another? Does taking the life or causing the death of another have any weight in terms of ethics? Does this particular sect also forbid heart transplants? Are people who have heart attacks not revived?
It is now about 9:00 p.m. here in Israel and I have to assist my 36 year-old son with severe autism get ready for bed.
Any reply from me will have to wait until after tonight.
Arthur Golden
Perhaps I misunderstand your position, Arthur.
Let me pose a hypothetical, since there are many hypotheticals in your arguments:
If a palestinian family with a similar situation, with their son in an Israeli hospital, stated that their religious belief was that a person was not dead unless their fingernails had fallen off, would you consider that the jewish state was morally required to continue to provide life support to this dead child?
The cost to Israel will be over $1 million a year, and projections are that the fingernails may not fall off for years.