University of Michigan Journal of Law Reform

Volume 48 | Issue 2

2015

Piercing the Veil: The Limits of Brain Death as a Legal Fiction

Dr. Seema K . Shah

Department of Bioethics, National Institutes of Health

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Recommended Citation
Seema K. Shah, Piercing the Veil: The Limits of Brain Death as a Legal Fiction, 48 U. Mich. J. L. Reform 301 (2015).

Available at: http://repository.law.umich.edu/mjlr/vol48/iss2/1

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[ Dr. Shah’s article is too long for one posting so here is the introduction, more will follow in subsequent postings.  Emphasis and {commentary} in red type by Abyssum ]

PIERCING THE VEIL: THE LIMITS OF BRAIN DEATH AS A LEGAL FICTION

Seema K. Shah*

Brain death is different from the traditional, biological conception of death. Although there is no possibility of a meaningful recovery {this is Dr. Shah’s opinion, with which I am many others disagree}, considerable scientific evidence shows that neurological and other functions persist in patients accurately diagnosed as brain dead. Elsewhere with others, I have argued that brain death should be understood as an unacknowledged status legal fiction. A legal fiction arises when the law treats something as true, though it is known to be false or not known to be true, for a particular legal purpose (like the fiction that corporations are persons). Moving towards greater transparency, it is legally and ethically {this is certainly disputed and contested}  justifiable to use this fiction to determine when to permit treatment withdrawal and organ transplantation.

However, persistent controversy and recent conflicts between hospitals and families over the treatment of brain-dead patients demonstrate the need for clearer limits on the legal fiction of brain death. This Article argues that more people should recognize that brain death is a legal fiction and further contends that existing scholarship has inadequately addressed the appropriate use of the legal fiction of brain death in legal conflicts.

For instance, as in Jahi McMath’s case (in which a mother wanted to keep her daughter on a ventilator after she was determined brain dead), families may distrust physicians and hospitals who fail to acknowledge that brain death is a legal fiction. Legislators in most states have ignored the need to permit statutory exceptions for individuals with strong sanctity of life views. When hospitals treat brain-dead pregnant women, as in Marlise Mun ̃oz’s case, courts have failed to weigh the fundamental constitutional rights of pregnant women against the state’s interests.

Finally, judges and legislators should sometimes “pierce the veil” of brain death and should not use the legal fiction in cases involving: (1) religious and moral objections, (2) insurance reimbursement for extended care of brain-dead patients, (3) maintenance of pregnant, brain-dead women, and (4) biomedical research.

The Research Program of the NIH, and the Warren G. Magnuson Clinical Center supported this research. The opinions expressed here are the views of the author. They do not represent any position or policy of the National Institutes of Health, the Public Health Service or the Department of Health and Human Services. The author is a U.S. government employee who must comply with the NIH Public Access Policy, and the author or NIH will deposit in NIH’s PubMed Central archive, an electronic version of the final manuscript upon acceptance for publication, to be made publicly available no later than twelve months after the official date of publication. The author would like to thank Frank Miller, Michael Nair-Collins, Alan Wertheimer, Ben Berkman, Meg Larkin, Harry Surden, Nisha Shah, and Mahesh Somashekhar.

301 Faculty, Department of Bioethics, National Institutes of Health. The Intramural

302 University of Michigan Journal of Law Reform [VOL. 48:2 Article concludes with general guidance for judges, legislators, and other legal actors to use regarding legal fictions.

INTRODUCTION

Considerable public attention has centered on two cases, in which hospitals and family members have disagreed over the treatment of brain-dead patients.1 These cases demonstrate that the controversy over brain death cannot remain confined to scholarly literature2 and that clearer guidance is needed regarding when brain death should or should not be used to resolve legal controversies.

Brain death is defined as the “irreversible cessation of all func- tions of the entire brain.”3 Notwithstanding the tremendous value of the legal standard of brain death in some contexts, “brain death” is simply not the equivalent of a traditional, biological conception of death where the heart stops beating and the body grows cold to the touch and begins deteriorating.4  Although brain-dead patients are in an irreversible coma and have no chance of regaining consciousness or the ability to breathe spontaneously, they are not biologically dead. Their hearts still beat with the aid of mechanical ventilation; their bodies can heal wounds, mount stress responses, grow feverish in response to infection, move spontaneously, and maintain a warm body temperature; and, for many brain-dead pa- tients, the brain continues to secrete vasopressin, a hormone that regulates the balance of salt and fluids in the body.5

Jahi McMath’s case received national attention. Three physicians examined Jahi, a thirteen-year-old girl, a few days after she had surgery to remove her tonsils, adenoids, and uvula; these physicians

1. See generally Benedict Carey & Denise Grady, At Issue in 2 Wrenching Cases, N.Y. TIMES, Jan. 9, 2014, at A1; Manny Fernandez & Erik Eckholm, Pregnant, and Forced to Stay on Life Support, N.Y. TIMES, Jan. 7, 2014, at A1; Carolyn Jones & Henry K. Lee, Brain-dead Jahi McMath released to her family, S.F. GATE (Jan. 6, 2014), http://www.sfgate.com/health/article/Brain- dead-Jahi-McMath-released-to-her-family-5116262.php; Jason Wells, Jahi McMath: Family of brain dead girl keeping out of public view, L.A. TIMES (Jan. 14, 2014), http://www.latimes.com/ local/lanow/la-me-ln-jahi-mcmath-family-brain-dead-body-20140114story.html.

2. See, e.g., Michael Nair-Collins, Brain Death, Paternalism, and the Language of “Death,” 23 KENNEDY INST. ETHICS J. 53, 53 (2013).

3. UNIF. DETERMINATION OF DEATH ACT § 1 (1980), 12A U.L.A. 781 (2008).
4. Throughout this Article, the term “biological death” refers to the irreversible cessa-

tion of the functioning of an organism as a whole. See FRANKLIN G. MILLER & ROBERT D. TRUOG. DEATH, DYING, AND ORGAN TRANSPLANTATION: RECONSTRUCTING MEDICAL ETHICS AT THE END OF LIFE 69 (2012).

5. See D. Alan Shewmon, The Brain and Somatic Integration, 26 J. MED. & PHILOS. 457, 467–69 (2001).

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agreed that she was brain dead.6 The family believed that Jahi was alive and could still recover, and asked the hospital to keep her on the ventilator.7 The family’s lawyer expressed that the family did not believe that Jahi had died or that the hospital should treat her as a dead person because, with the support of mechanical ventilation, her heart was still beating and her body remained warm to the touch.8 The family sought to compel the hospital to perform a tracheostomy on Jahi and insert a feeding tube to make it easier to transfer her to a local facility; the hospital refused.9 The court initially issued a temporary restraining order against the hospital.10 The court then required an independent physician to examine Jahi to determine whether she was brain dead, ultimately accepted the physician’s determination of brain death, and considered Jahi le- gally dead.11 The family eventually transferred her to a long term care facility.12

In the second case, Marlise Mun ̃oz, who was fourteen weeks preg- nant, suffered from what appeared to be a pulmonary embolism, and doctors determined she was brain dead in November 2013.13 Although her family wished to remove her from life support and felt this was consistent with her wishes, the hospital refused. It cited a Texas law that states that “life-sustaining treatment” cannot be withdrawn or withheld from a pregnant woman, regardless of how

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6. Jones & Lee, supra note 1.
7. Id.
8. Id.
9. Id.; Carolyn Jones, Jahi McMath’s family says hospital blocking transfer, S.F. GATE, (Dec.

31, 2013), http://www.sfgate.com/bayarea/article/Jahi-McMath-s-family-says-hospital-block ing-5105627.php.

10. Winkfield v. Children’s Hosp. Oakland, Case No. RG13-07598 (Cal. Super. Ct. Dec. 20, 2013), (Temp. Restraining Order Following Petition for Emergency Protective/ Re- straining Order Authorizing Medical Treatment and Authorizing Petitioner to Give Consent to Medical Treatment.), available at http://www.thaddeuspope.com/images/ Winkfield_v._Childrens_Hosp_Oakland_Cal_2013_.pdf.

11. Lisa Fernandez, Judge Declares Oakland Teen Legally Dead, NBC BAY AREA, http://www .nbcbayarea.com/news/local/Third-Doctor-Declares-Jahi-McMath-of-Oakland-Legally-Dead- 237179681.html.

12. Natalie Neysa Alund, Jahi McMath: Timeline of events in case of brain-dead Oakland teen, SAN JOSE MERCURY NEWS, http://www.mercurynews.com/nation-world/ci_24852090/jahi-mc- math-timeline-events-case-brain-dead-oakland; Jahi McMath arrives at long-term care facility, says family, CBS NEWS (Jan. 6, 2014), http://www.cbsnews.com/news/jahi-mcmath-arrives-at-long- term-care-facility/. Recent reports suggest that Jahi McMath is still maintained on a ventilator at this long-term care facility. Kristin J. Bender, Jahi McMath still hooked to machines 1 year later, S.F. GATE (Dec. 14, 2014), http://www.sfgate.com/news/us/article/Jahi-McMath-still- hooked-to-machines-1-year-later-5952198.php.

13. Manny Fernandez, Texas Woman Is Taken Off Life Support After Order, N.Y. TIMES, Jan. 26, 2014, at A9.

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far along the pregnancy has advanced.14 The family sued the hospital, arguing that the statute requiring hospitals to keep pregnant patients on life support should not apply to Ms. Mun ̃oz because Texas law considers a person biologically dead when they are brain dead.15 Although the court ultimately accepted this argument and granted the family’s request,16 a strict application of the legal fiction of brain death could have led to a different outcome under even slightly varied circumstances.

Because brain death is actually a legal fiction, courts should not, by default, extend the legal standard of brain death to the types of cases discussed above. A legal fiction exists when the law treats something known to be false (or not known to be true) as if it were true for a particular legal purpose.17 Fictions are devices that simplify the extension of the law. For example, although corporations are not persons, the law treats them as such to apply statutes and case law to their circumstances. Moreover, courts are aware that sometimes exceptions to this legal fiction are warranted and have “pierced the corporate veil” when the strict application of the legal fiction would produce an unjust outcome.18 Unlike the fiction of corporate personhood, however, the legal fiction of brain death is not widely acknowledged, which makes it hard to recognize when the courts use the legal fiction inappropriately. As a result, scholars, courts, and legislators have not addressed the need to limit the legal fiction of brain death. Important and valid uses of the legal fiction of brain death exist, for example determining when to withdraw life-sustaining therapy and allow organ donation {this is very much disputed}. In contrast, using the traditional, cardiopulmonary standard for death, instead of the legal fiction of brain death, is important in some circumstances.

In light of scientific evidence, the existing rationales for considering brain death as a type of biological death fail.19 Although commentators argue that it is indisputable that brain death is equivalent to biological death,20 asserting this as a fact and ignoring

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14. Id.
15. Fernandez & Eckholm, supra note 1; Diane Jennings, Husband sues Fort Worth hospital

to remove pregnant wife from life support, DALLAS MORNING NEWS (Jan. 14, 2014), http://www .dallasnews.com/news/metro/20140114-husband-sues-fort-worth-hospital-to-remove-preg nant-wife-from-life-support.ece.

16. See Mun ̃oz v. John Peter Smith Hosp., No. 096-270080-14 (Tex. 96th Dist. Ct. Jan. 24, 2014), available at http://www.thaddeuspope.com/images/MUNOZ_-_Stipulation_Facts.pdf.

17. See LON FULLER, LEGAL FICTIONS 9 (1967).
18. Robert B. Thompson, Unpacking Limited Liability, 47 VAND. L. REV. 1, 3 (1994).
19. See D. Alan Shewmon, supra note 5.
20. See, e.g., Lawrence O. Gostin, Legal and Ethical Responsibilities Following Brain Death: the

McMath and Mun ̃oz Cases, 311 J. AM. MED. ASS’N 903, 903 (2014). Gostin argues that “[t]he

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the existing controversy over brain death is problematic. For instance, some argue that because brain death is the same as death, physicians should never treat a brain-dead patient.21 Yet physicians regularly treat brain-dead patients to keep their organs viable for organ donation.22

Perhaps because our medical and legal discourse employs the term “death” when it refers to “brain death” and “biological death,” the important distinctions between these two states are overlooked. When theorists believe the law treats brain-dead and biologically- dead individuals identically, relevant considerations are omitted from medical and legal discourse. The hospital’s reluctance to accommodate the McMath family illustrates this point. It was not clear whether California’s statute, requiring some brief period of accom- modation to allow family to gather at the bedside of a brain dead patient,23 generated any legal obligation on the hospital to respect the family’s views and to facilitate the transfer of Jahi McMath to another facility.

The under-acknowledged distinction between biological death and brain death causes confused reasoning and potentially problematic outcomes. In certain legal contexts, a traditional conception of cardiopulmonary death, rather than brain death, aligns better with the law’s underlying goals and policy. For instance, although the correct outcome was reached in Mun ̃oz, as argued infra, given the complexity of the issues involved and the potentially conflicting rights and interests of the mother and fetus, hospitals and physicians should not use the brain death standard mechanically to justify terminating treatment. Instead, they should weigh a woman’s constitutional rights to privacy and to consent to treatment against the state’s interest in preserving her life and the life of her fetus. Furthermore, judges and legislators engaged in this balancing should take into account the diminished interests of brain-dead individuals and recognize that states have reduced interests in preserving the lives of brain-dead individuals.

Simply stated, brain death is a useful construct in some cases. In other cases, a traditional, cardiopulmonary standard for death is

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McMath and Mun ̃oz cases are quite distinct in that both of these individuals have been declared legally dead. Once a patient has died, any conversation about the appropriate form of medical treatment is no longer relevant. This would mean, for example, that while Jahi’s mother could ask for ventilation for a short duration to enable her to come to terms with her daughter’s death, the very idea of ‘treatment,’ especially if it is of an indefinite duration, would be well beyond the bounds of prevailing ethical or legal thought.” Id.

21. See, e.g., id.
22. Pauline M. Todd et al., Organ Preservation in a Brain Dead Patient: Information Support

for Neurocritical Care Protocol Development, 95 J. MED. LIBR. ASS’N 238, 238 (2007).

23. CAL. HEALTH & SAFETY CODE § 1254.4 (West 2008).

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more appropriate. Therefore, resolving the question of when it is appropriate to use brain death as a legal fiction will increase transparency and awareness of the fiction’s limits. The McMath and Mun ̃oz cases demonstrate the need for a clearer understanding of when to use the legal fiction of brain death.

To develop this argument:

Part I describes the historical development of brain death, the current legal standards for determining death, and the widely-accepted evidence about brain death that caused controversy.

Part II explores the theoretical basis and justifi- cations for legal fictions and establishes a theoretical approach to status legal fictions. This theoretical analysis demonstrates why using a legal fiction is the best solution to the controversy over brain death.

Part III argues for greater transparency surrounding the le- gal fiction of brain death among judges, legislators, hospitals, and members of the public. That Part addresses the appropriate use of the legal fiction of brain death by using the cases of Jahi McMath and Marlise Mun ̃oz. In particular, hospitals and courts should not use the legal fiction of brain death in cases involving: (1) religious and moral objections, (2) insurance reimbursement for extended care of brain-dead patients, (3) maintenance of pregnant, brain- dead women, and (4) biomedical research.

Part IV discusses the implication of the analysis for legal actors deciding whether to create or use legal fictions. For these actors, in some cases, it is better not to employ legal fictions in the first place. When legal fictions are adopted and used, the doctrine should only be applied within appropriate limits. Finally, this Part proposes areas for future scholarship to explore the use of legal fictions in technological legislation and critically evaluates the general use of legal fictions.

[to be continued in future posts]