Legal Briefing: Brain Death and Total Brain Failure
Thaddeus Mason Pope
The Journal of Clinical Ethics 25, no. 3 (Fall 2014): 245-57.
This issue’s “Legal Briefing” column covers recent legal developments involving total brain failure. Death determined by neurological criteria (DDNC) or “brain death” has been legally established for decades in the United States. But recent conflicts between families and hospitals have created some uncertainty. Clinicians are increasingly unsure about the scope of their legal and ethical treatment duties when families object to the withdrawal of physiological support after DDNC. This issue of JCE includes a thorough analysis of one institution’s ethics consults illustrating this uncertainty. This experience is not unique. Hospitals across the country are seeing more DDNC disputes. Because of the similarity to medical futility disputes, some court cases on this topic were reviewed in a prior “Legal Briefing” column. But a more systematic review is now warranted. I categorize recent legal developments into the following nine categories:
1. History of Determining Death by Neurological Criteria
2. Legal Status of Determining Death by Neurological Criteria
3. Legal Duties to Accommodate Family Objections
4. Protocols for Determining Death by Neurological Criteria
5. Court Cases Seeking Physiological Support after DDNC
6. Court Cases Seeking Damages for Intentionally Premature DDNC
7. Court Cases Seeking Damages for Negligently Premature DDNC
8. Court Cases Seeking Damages for Emotional Distress
9. Pregnancy Limitations on DDNC
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