- Email: [email protected]
Nonconsensual Determination of Neurologic (Brain) Death
3. Xue FS, Cui XL, Wang SY. Should video laryngoscopes be as first choice for endotracheal intubation during cardiorespiratory resuscitation?: Re: Park SO, et al. Feasibility of the video-laryngoscope (GlideScopeÒ) for endotracheal intubation during uninterrupted chest compressions in actual advanced life support: a clinical observational study in an urban emergency department. Resuscitation 84 (2013) 1233-1237. Resuscitation. 2014;85(5):e69.
Nonconsensual Determination of Neurologic (Brain) Death Is It a Violation of Constitutional Rights? To The Editor:
Lewis and Greer1 cited recent amendments (e-Appendix 1) to the Nevada Uniform Determination of Death Act (N.R.S. 451.007) (Uniform Determination of Death Act [UDDA])2 to buttress their claims that: (1) the American Academy of Neurology (AAN) guideline represents the accepted standard of determination of neurologic (brain) death and (2) consent for determination of neurologic death is not legally required. The amendments were in response to the Nevada Supreme Court’s doubt (e-Appendix 2) about whether the AAN standard is in compliance with the UDDA, that is, “.irreversible cessation of. (b) [a]ll functions of the person’s entire brain, including his or her brainstem” [emphasis added]. Lewis and Greer’s claims are problematic for two reasons. First, the Nevada legislators did not address the Court’s legitimate doubt and unresolved issue regarding the validity of the AAN standard.3 Legislators designated, without further justification, this standard and “any subsequent revisions approved by the American Academy of Neurology or its successor organization” as the authority for determination of neurologic death.2 Lewis and Greer did not comment on the legislature’s failure to address the Court’s concerns. Notwithstanding, authors of the AAN standard have conceded that: “[t]he gold standard is not the UDDA but a neurologic examination and irreversible loss of all brainstem function. We did not claim that the clinical examination of BD [brain death] implies loss of all neuronal [brain] function.”4 Indeed, the AAN standard fails to conform to the UDDA standard, because it requires only the presence of coma and absent brainstem reflexes. In a follow-up justification of this nonconformity, Wijdicks5 (coauthor of the AAN standard) stated: “[s]o, what are neurologists confirming? If documentation of a loss of all neuronal [brain] function is the ultimate goal for the definition of brain death, the goal is not attainable because no
chestjournal.org
confirmatory test can provide such documentation with certainty.” Second, the amendments also authorize performing clinical tests for determination of neurologic death without consent, because death determination “is a clinical decision that does not require the consent of the person’s authorized representative or the family member with the authority to consent or withhold consent.”2 Determination of neurologic death requires performing detailed invasive testing, including applying noxious stimuli such as injecting ice cold saline into both ears and disconnecting the ventilator. Therefore, obtaining consent is a necessary legal condition to administer these tests. Without such a consent in place, if a person fails to fulfill determination of neurologic death criteria, that legally alive person would have been subjected to nonconsensual, invasive, nonemergent, and nonbeneficial medical procedures, which constitutes battery. Performance of invasive tests on a deceased body also requires consent. In conclusion, we disagree with Lewis and Greer’s endorsement of and advocacy for Nevada’s UDDA amendments. These amendments introduce serious legal inconsistencies, potentially harm individuals, and violate citizens’ constitutional rights. Mohamed Y. Rady, BChir, MB (Cantab), MD (Cantab) Phoenix, AZ Joseph L. Verheijde, PhD, PT Scottsdale, AZ Greg Yanke, JD, MSBA Tempe, AZ AFFILIATIONS: Department of Critical Care (Dr Rady), Mayo Clinic Hospital; Department of Physical Medicine and Rehabilitation (Dr Verheijde), Mayo Clinic; and School of Historical, Philosophical, and Religious Studies (Mr Yanke), Arizona State University. FINANCIAL/NONFINANCIAL DISCLOSURES: None declared. CORRESPONDENCE TO: Mohamed Y. Rady, BChir, MB (Cantab), MD (Cantab), Department of Critical Care, Mayo Clinic Hospital, 5777 E Mayo Blvd, Phoenix, AZ, 85054; e-mail: rady.mohamed@ mayo.edu Copyright Ó 2017 American College of Chest Physicians. Published by Elsevier Inc. All rights reserved. DOI: http://dx.doi.org/10.1016/j.chest.2017.06.052
Acknowledgment Additional information: The e-Appendixes can be found in the Supplemental Materials section of the online article.
References 1. Lewis A, Greer D. Rebuttal from Drs Lewis and Greer. Chest. 2017;152(4):704-705. 2. Assembly Bill No. 424. EN. 2017. http://www.leg.state.nv.us/Session/7 9th2017/Bills/AB/AB424_EN.pdf. Accessed August 23, 2017.
903
3. Yanke G, Rady MY, Verheijde JL. In re guardianship of Hailu: The Nevada Supreme Court casts doubt on the standard for brain death diagnosis. Med Sci Law. 2017;57(2): 100-102. 4. Machado C, Perez-Nellar J, Estevez M, et al. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology. 2011;76(3):307-309. 5. Wijdicks EF. The case against confirmatory tests for determining brain death in adults. Neurology. 2010;75(1):77-83.
Response To the Editor:
As we have presented, because there are numerous reasons why consent should not be required prior to an evaluation for brain death (BD), Nevada revised its Uniform Determination of Death Act (UDDA) to stipulate that consent is not needed to conduct a BD evaluation.1,2 Rady et al3 argue that this is constitutionally problematic. The revisions to Nevada’s UDDA stem from the response of the Supreme Court of Nevada to the case of Aden Hailu, a woman whose father requested continuation of organ support after she was declared brain dead using the practice parameter for determination of BD from the American Academy of Neurology (AANPP).4 The AANPP was originally written in 1995 in response to concerns raised by the authors of the UDDA and was updated in 2010.5 The Court found that organ support should be continued because the hospital did not provide sufficient evidence or expert testimony that the AANPP is the accepted criteria for determination of BD in the medical community. Notably, the Court stated that their ruling was not an attempt to “set in stone certain medical criteria for determining BD,” but rather that it was based on the “undeveloped record before [them].”4 The Nevada Assembly sought to avoid future confusion about the criteria needed to determine BD, so they proposed revisions to their UDDA to clearly state that BD determination in an adult must be made in accordance with the AANPP.2 Additionally, because questions about the need for consent prior to the determination of BD were raised in recent lawsuits in other states, the Assembly specified in the revised UDDA that BD determination is a clinical decision and therefore does not require consent. The determination is not based on “battery” as Rady et al3 claim but rather on a neurologic examination that is similar to, but more detailed than, the routine examination performed multiple times a day on comatose patients around the
904 Correspondence
world.1-3 The AANPP provides: (1) clear instructions about performing the examination and apnea testing, (2) stipulations on how to avoid complications during the evaluation, and (3) indications to abort apnea testing.5 We applaud Nevada for revising their UDDA in response to these recent lawsuits. Although claims have been made that determination of BD in the absence of consent violates a patient’s freedom of religion and privacy, determination of death should not be a negotiated standard or choice.1,6 Nonetheless, determination of whether or not Nevada’s UDDA revision is constitutionally problematic is outside the purview of physicians. Ariane Lewis, MD New York, NY David Greer, MD Boston, MA AFFILIATIONS: From the Division of Neurocritical Care (Dr Lewis), Departments of Neurology and Neurosurgery, NYU Langone Medical Center; and the Department of Neurology (Dr Greer), Boston University Medical Center. FINANCIAL/NONFINANCIAL DISCLOSURES: See earlier cited article for author conflicts of interest. CORRESPONDENCE TO: Ariane Lewis, MD, Division of Neurocritical Care, Department of Neurology, NYU Langone Medical Center, 530 First Ave, HCC-5A New York, NY 10016; e-mail: ariane.kansas. [email protected] Copyright Ó 2017 American College of Chest Physicians. Published by Elsevier Inc. All rights reserved. DOI: http://dx.doi.org/10.1016/j.chest.2017.06.051
References 1. Lewis A, Greer D. Point: Should informed consent be required for apnea testing in patients with suspected brain death? No. Chest. 2017;152(4):700-702. 2. An Act Relating to the Determination of Death, 2017 Nevada Acts ch. 315 (A.B. 424), effective Oct 1, 2017. 3. Rady MY, Verheijde JL, Yanke G. Nonconsensual determination of neurologic (brain) death: Is it a violation of constitutional rights? Chest. 2017;152(4):903-904. 4. In Re: Guardianship of Hailu. 2015. 5. Wijdicks EFM, Varelas PN, Gronseth GS, Greer DM. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology. 2010;74(23):1911-1918. 6. Alameda Superior Court Case No. RP 13–707598.
Vitamin C and Sepsis Framing the Postpublication Discussion To the Editor:
We read with interest the recent study by Marik et al1 published in the June 2017 issue of CHEST. The trial has many notable limitations, which, in our opinion, render
[
152#4 CHEST OCTOBER 2017
]
Nonconsensual Determination of Neurologic (Brain) Death Is It a Violation of Constitutional Rights? To The Editor:
Lewis and Greer1 cited recent amendments (e-Appendix 1) to the Nevada Uniform Determination of Death Act (N.R.S. 451.007) (Uniform Determination of Death Act [UDDA])2 to buttress their claims that: (1) the American Academy of Neurology (AAN) guideline represents the accepted standard of determination of neurologic (brain) death and (2) consent for determination of neurologic death is not legally required. The amendments were in response to the Nevada Supreme Court’s doubt (e-Appendix 2) about whether the AAN standard is in compliance with the UDDA, that is, “.irreversible cessation of. (b) [a]ll functions of the person’s entire brain, including his or her brainstem” [emphasis added]. Lewis and Greer’s claims are problematic for two reasons. First, the Nevada legislators did not address the Court’s legitimate doubt and unresolved issue regarding the validity of the AAN standard.3 Legislators designated, without further justification, this standard and “any subsequent revisions approved by the American Academy of Neurology or its successor organization” as the authority for determination of neurologic death.2 Lewis and Greer did not comment on the legislature’s failure to address the Court’s concerns. Notwithstanding, authors of the AAN standard have conceded that: “[t]he gold standard is not the UDDA but a neurologic examination and irreversible loss of all brainstem function. We did not claim that the clinical examination of BD [brain death] implies loss of all neuronal [brain] function.”4 Indeed, the AAN standard fails to conform to the UDDA standard, because it requires only the presence of coma and absent brainstem reflexes. In a follow-up justification of this nonconformity, Wijdicks5 (coauthor of the AAN standard) stated: “[s]o, what are neurologists confirming? If documentation of a loss of all neuronal [brain] function is the ultimate goal for the definition of brain death, the goal is not attainable because no
chestjournal.org
confirmatory test can provide such documentation with certainty.” Second, the amendments also authorize performing clinical tests for determination of neurologic death without consent, because death determination “is a clinical decision that does not require the consent of the person’s authorized representative or the family member with the authority to consent or withhold consent.”2 Determination of neurologic death requires performing detailed invasive testing, including applying noxious stimuli such as injecting ice cold saline into both ears and disconnecting the ventilator. Therefore, obtaining consent is a necessary legal condition to administer these tests. Without such a consent in place, if a person fails to fulfill determination of neurologic death criteria, that legally alive person would have been subjected to nonconsensual, invasive, nonemergent, and nonbeneficial medical procedures, which constitutes battery. Performance of invasive tests on a deceased body also requires consent. In conclusion, we disagree with Lewis and Greer’s endorsement of and advocacy for Nevada’s UDDA amendments. These amendments introduce serious legal inconsistencies, potentially harm individuals, and violate citizens’ constitutional rights. Mohamed Y. Rady, BChir, MB (Cantab), MD (Cantab) Phoenix, AZ Joseph L. Verheijde, PhD, PT Scottsdale, AZ Greg Yanke, JD, MSBA Tempe, AZ AFFILIATIONS: Department of Critical Care (Dr Rady), Mayo Clinic Hospital; Department of Physical Medicine and Rehabilitation (Dr Verheijde), Mayo Clinic; and School of Historical, Philosophical, and Religious Studies (Mr Yanke), Arizona State University. FINANCIAL/NONFINANCIAL DISCLOSURES: None declared. CORRESPONDENCE TO: Mohamed Y. Rady, BChir, MB (Cantab), MD (Cantab), Department of Critical Care, Mayo Clinic Hospital, 5777 E Mayo Blvd, Phoenix, AZ, 85054; e-mail: rady.mohamed@ mayo.edu Copyright Ó 2017 American College of Chest Physicians. Published by Elsevier Inc. All rights reserved. DOI: http://dx.doi.org/10.1016/j.chest.2017.06.052
Acknowledgment Additional information: The e-Appendixes can be found in the Supplemental Materials section of the online article.
References 1. Lewis A, Greer D. Rebuttal from Drs Lewis and Greer. Chest. 2017;152(4):704-705. 2. Assembly Bill No. 424. EN. 2017. http://www.leg.state.nv.us/Session/7 9th2017/Bills/AB/AB424_EN.pdf. Accessed August 23, 2017.
903
3. Yanke G, Rady MY, Verheijde JL. In re guardianship of Hailu: The Nevada Supreme Court casts doubt on the standard for brain death diagnosis. Med Sci Law. 2017;57(2): 100-102. 4. Machado C, Perez-Nellar J, Estevez M, et al. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology. 2011;76(3):307-309. 5. Wijdicks EF. The case against confirmatory tests for determining brain death in adults. Neurology. 2010;75(1):77-83.
Response To the Editor:
As we have presented, because there are numerous reasons why consent should not be required prior to an evaluation for brain death (BD), Nevada revised its Uniform Determination of Death Act (UDDA) to stipulate that consent is not needed to conduct a BD evaluation.1,2 Rady et al3 argue that this is constitutionally problematic. The revisions to Nevada’s UDDA stem from the response of the Supreme Court of Nevada to the case of Aden Hailu, a woman whose father requested continuation of organ support after she was declared brain dead using the practice parameter for determination of BD from the American Academy of Neurology (AANPP).4 The AANPP was originally written in 1995 in response to concerns raised by the authors of the UDDA and was updated in 2010.5 The Court found that organ support should be continued because the hospital did not provide sufficient evidence or expert testimony that the AANPP is the accepted criteria for determination of BD in the medical community. Notably, the Court stated that their ruling was not an attempt to “set in stone certain medical criteria for determining BD,” but rather that it was based on the “undeveloped record before [them].”4 The Nevada Assembly sought to avoid future confusion about the criteria needed to determine BD, so they proposed revisions to their UDDA to clearly state that BD determination in an adult must be made in accordance with the AANPP.2 Additionally, because questions about the need for consent prior to the determination of BD were raised in recent lawsuits in other states, the Assembly specified in the revised UDDA that BD determination is a clinical decision and therefore does not require consent. The determination is not based on “battery” as Rady et al3 claim but rather on a neurologic examination that is similar to, but more detailed than, the routine examination performed multiple times a day on comatose patients around the
904 Correspondence
world.1-3 The AANPP provides: (1) clear instructions about performing the examination and apnea testing, (2) stipulations on how to avoid complications during the evaluation, and (3) indications to abort apnea testing.5 We applaud Nevada for revising their UDDA in response to these recent lawsuits. Although claims have been made that determination of BD in the absence of consent violates a patient’s freedom of religion and privacy, determination of death should not be a negotiated standard or choice.1,6 Nonetheless, determination of whether or not Nevada’s UDDA revision is constitutionally problematic is outside the purview of physicians. Ariane Lewis, MD New York, NY David Greer, MD Boston, MA AFFILIATIONS: From the Division of Neurocritical Care (Dr Lewis), Departments of Neurology and Neurosurgery, NYU Langone Medical Center; and the Department of Neurology (Dr Greer), Boston University Medical Center. FINANCIAL/NONFINANCIAL DISCLOSURES: See earlier cited article for author conflicts of interest. CORRESPONDENCE TO: Ariane Lewis, MD, Division of Neurocritical Care, Department of Neurology, NYU Langone Medical Center, 530 First Ave, HCC-5A New York, NY 10016; e-mail: ariane.kansas. [email protected] Copyright Ó 2017 American College of Chest Physicians. Published by Elsevier Inc. All rights reserved. DOI: http://dx.doi.org/10.1016/j.chest.2017.06.051
References 1. Lewis A, Greer D. Point: Should informed consent be required for apnea testing in patients with suspected brain death? No. Chest. 2017;152(4):700-702. 2. An Act Relating to the Determination of Death, 2017 Nevada Acts ch. 315 (A.B. 424), effective Oct 1, 2017. 3. Rady MY, Verheijde JL, Yanke G. Nonconsensual determination of neurologic (brain) death: Is it a violation of constitutional rights? Chest. 2017;152(4):903-904. 4. In Re: Guardianship of Hailu. 2015. 5. Wijdicks EFM, Varelas PN, Gronseth GS, Greer DM. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology. 2010;74(23):1911-1918. 6. Alameda Superior Court Case No. RP 13–707598.
Vitamin C and Sepsis Framing the Postpublication Discussion To the Editor:
We read with interest the recent study by Marik et al1 published in the June 2017 issue of CHEST. The trial has many notable limitations, which, in our opinion, render
[
152#4 CHEST OCTOBER 2017
]