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Brody case highlights brain-death dilemma
The recent case of a 12-year-old boy named Motl Brody brought attention not only to the occasional dilemmas presented by the designation of brain death, but also how to address faith traditions in determining death.
In the well-publicized case, according to published reports, the Children's National Medical Center had declared Brody brain-dead; however, his parents, of Brooklyn, NY, who are Orthodox Jews, did not want their child removed from care due to the fact that their faith indicates that death does not occur until the heart and lungs stop functioning.
Brody's situation became a court case, with reports suggesting that the hospital maintained that because young Brody had been declared brain-dead, which the District of Columbia recognizes, he should be removed from the ventilator and not allowed to occupy the ICU bed he was in at that time.
According to an Associated Press article, the family requested that a judge prohibit the hospital from doing further tests to determine brain activity. The AP report states that the hospital responded by asking a District of Columbia Superior Court judge for permission to discontinue treatment.
The hospital maintained that Brody's brain had begun to decompose, according to AP.
Ultimately, Brody died in mid-November when his organs stopped functioning.
Hospital protecting resources?
John Banja, PhD, professor, department of rehabilitation medicine; and medical ethicist at the Center for Ethics at Emory University in Atlanta, as well as director, section on ethics in research, suggests that the hospital has a right to protect scarce resources.
"Even more than a hospital saying, 'Well, gee, we might take a financial loss on this case.' Even more important than that is the fact that, oftentimes, ICU beds are very scarce in hospitals," he notes. "And the idea that a person who is legally dead is taking up such a bed and using the ventilator, using those resources might create a lot of discomfort among hospital staff."
In fact, Banja says, it could be argued that in the case of such ICU beds, "somebody else maybe deserves more or deserves better because they have a treatable condition."
Banja says his understanding from published reports was that Brody's parents "were not demanding more aggressive treatment or demanding treatment to keep him alive." Rather, they felt that they were religiously obligated to keep him alive and to keep him on the ventilator.
"So, for them, it was a religious issue — not even so much a clinical issue," Banja says, adding later that "the issue is: Should the state-funded entity that operates — and must — as required to acknowledge state law, should it make an exception in this particular case to respect and acknowledge the exercise of religion by a family?"
The Brody case, he said, was a "pretty good example of church vs. state."
Hospitals can accommodate
In New Jersey, brain-death determinations are exempted under law if they would violate religious beliefs. In New York, there is a state regulation known as a "reasonable accommodation clause."
"What that means, no one is entirely sure of; and we, over the years, have tried to clarify what the state's intent was of that regulation, but if there's a religious or moral objection to a brain-death determination, we need to make a reasonable accommodation," says Joseph J. Fins, MD, professor of medicine, professor of public health and professor of medicine in psychiatry at Weill Cornell Medical College in New York, where he also is chief of the division of medical ethics and director of medical ethics at New York Weill Cornell Medical Center.
Over the years, the hospital has had "a number of cases" wherein there was an objection to the brain-death determination. Fins also has written about the issue in a number of articles.
"I can't go into specifics about individual cases, but I can say that I think that it's a difficult situation in that it creates a kind of secular vs. theological divide," he says.
However, Fins believes that the brain-death category also "serves an important legal and instrumental purpose in defining a category of defining death so as to allow organ transplantation, which was its original impetus back in 1968, after the Harvard Brain Death Criteria were established."
The state regulation requiring "reasonable accommodation," does not, however, mean that the hospital cannot declare a patient brain-dead, Fins notes. What it does mean is that the hospital has to make an accommodation for the family to be there and to "try to talk it through."
"When we've had cases over the years, we've sought [guidance from] sister and brother institutions in the state and also from regulators," he says. "And there's a vagueness to the term, I think, probably intentionally."
Fins says he finds it "helpful to look at brain death as the ultimate in medical futility; that is, anybody who is brain-dead is never going to have any recovery from that state."
Families with religious beliefs that do not recognize brain death, or have another definition of death, see it differently. He notes that it is not only one particular religious group, such as Orthodox Jews, that does not recognize brain death. Fins cites other cases involving patients from Japan, China, and the Caribbean.
"Most families who are not religiously inclined will understand and accept it," he says. "For those families that come from a faith tradition that doesn't accept brain death, I think the questions have to be reformulated within the ethical junctures of their tradition."
Ways to accommodate faith
In cases where there is an objection to the brain-death determination, Fins says he strives to understand the family's faith tradition. For example, in Judaism, "there's this notion of a 'goses,' which is someone who is imminently dying," he notes.
If the ventilator of a brain-dead patient is removed, for example, the person may have cessation of cardiopulmonary function, "because they don't have a brain stem, so they have no respiratory drive," Fins says.
With patients, Fins says he talks to the family and says, "Look, whether you accept this person as brain-dead, he or she can certainly be considered to be a goses, and Jewish law proscribes prolonging the dying process."
The challenge is that in Jewish law, there also is a requirement to seek healing, and balancing those two obligations is sometimes difficult, he says. In some instances, the hospital has brought in the family's rabbi to seek out his or her wisdom, and perhaps a resolution.
"What we try to do is, one, we reframe it in their own faith tradition without bringing up the question of brain death — frame a compromise position; and, two, make sure that what they're saying is actually part of an organized faith tradition," Fins explains.
(Editor's note: In next month's Medical Ethics Advisor, the newsletter will look further at the brain-death determination.)