Rebuttal

Given that it is ethically justifiable for doctors to cause their patients’ death by stopping a ventilator, with valid consent, we see no good reasons for precluding procuring organs for transplantation prior to withdrawing life support. The de facto violation of the DDR in current practices of organ donation suggests that we should shift the focus of ethical inquiry from when is it legitimate to determine that an organ donor is dead to when is it legitimate to procure vital organs. When a valid decision has been made to stop life-sustaining treatments, no harm or wrong is done by procuring vital organs prior to death because the patient will be dead within a short interval of time as a result of stopping life support, regardless of whether organs are procured. The absence of harm plus appropriate consent legitimates vital organ donation. The DDR does no genuine moral work in current practices of vital organ donation because neither donors who are brain dead nor donors under DCDD protocols are known to be dead at the time organs are procured. We should be working toward honestly facing the fact that currently we are procuring vital organs from patients who are not known to be dead and that it is ethically legitimate and desirable to do so. With regard to maintaining the trust of the public, to date the assumption has been that the public is not capable of engaging in a discussion about the ethical complexities of organ transplantation and needs to be reassured that current practices accord with traditional ethical principles. Yet the limited research that has been conducted does not support the notion that the public has settled views on this issue,10 and multiple anecdotal reports suggest the existence of a diversity of opinion. In the case of a child who donated organs through a DCDD protocol, for example, the parents stated that if they had found out that another child had died because they were not able to donate their daughter’s heart, it would have been “like another slap in our faces.” They would have permitted simply taking out their daughter’s heart under general anesthesia, without the choreographed death. When pressed about the fact that this would have violated the DDR, the father replied, “There was no chance at all that our daughter was going to survive… . I can follow the ethicist’s argument, but it seems totally ludicrous.”11 We submit that he gets it exactly right. Robert D. Truog, MD Boston, MA Franklin G. Miller, PhD Bethesda, MD Affiliations: From the Division of Critical Care Medicine, Department of Anesthesia (Dr Truog), Children’s Hospital Boston; the Division of Medical Ethics, Department of Global Health and Social Medicine (Dr Truog), Harvard Medical School; and 18

the Department of Bioethics (Dr Miller), National Institutes of Health. FinancialⲐnonfinancial disclosures: The authors have reported to CHEST that no potential conflicts of interest exist with any companiesⲐorganizations whose products or services may be discussed in this article. The opinions expressed are the views of the author and do not necessarily reflect the policy of the National Institutes of Health, the Public Health Service, or the US Department of Health and Human Services. Correspondence to: Robert D. Truog, MD, Children’s Hospital, MSICU Office, Bader 6, 300 Longwood Ave, Boston, MA 02115; e-mail: [email protected] © 2010 American College of Chest Physicians. Reproduction of this article is prohibited without written permission from the American College of Chest Physicians (www.chestpubs.orgⲐ siteⲐmiscⲐreprints.xhtml). DOI: 10.1378Ⲑchest.10-0657

References 1. Truog RD. Is it time to abandon brain death? Hastings Cent Rep. 1997;27(1):29-37. 2. Truog RD, Miller FG. The dead donor rule and organ transplantation. N Engl J Med. 2008;359(7):674-675. 3. Miller FG, Truog RD. Rethinking the ethics of vital organ donations. Hastings Cent Rep. 2008;38(6):38-46. 4. Bernat JL. Point: are donors after circulatory death really dead, and does it matter? Yes and yes. Chest. 2010;138(1):13-16. 5. Guidelines for the determination of death. Report of the medical consultants on the diagnosis of death to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. JAMA. 1981;246(19):2184-2186. 6. Bernat J, Capron A, Bleck T, et al. The circulatory-respiratory determination of death in organ donation. Crit Care Med. 2010;38(3):963-970. 7. Pernick MS. Back from the grave: recurring controversies over defining and diagnosing death in history. In: Zaner RM, ed. Death: Beyond Whole-Brain Criteria. Boston, MA: Kluwer Academic Publishers; 1988:17-74. 8. Bernat JL. Are organ donors after cardiac death really dead? J Clin Ethics. 2006;17(2):122-132. 9. Miller FG, Truog RD, Brock DW. Moral fictions and medical ethics. Bioethics. In press. 10. Siminoff LA, Burant C, Youngner SJ. Death and organ procurement: public beliefs and attitudes. Kennedy Inst Ethics J. 2004;14(3):217-234. 11. Sanghavi D. When does death start? The New York Times Magazine. December 20, 2009:MM38.

Rebuttal

T

ruog and Miller1 criticize elements of the recent analysis of the circulatory determination of death that my colleagues and I conducted.2 Their most penetrating criticism is that in DCDD (donation after the determination of cardiac death) donors we blurred the ontologic distinction between death and dying. They correctly note that I have previously analyzed this distinction in depth in the DCDD context3 and then pose an illustrative case comparison. My rebuttal addresses this distinction and shows that the essential issue in DCDD is not one of ontology but of medical practice. Point/Counterpoint Editorials

Downloaded from chestjournal.chestpubs.org by Kimberly Henricks on July 6, 2010 © 2010 American College of Chest Physicians

Truog and Miller1 ask how we could consider the patient in case 1 to be dead if the analogous patient in case 2, who represents the typical patient we all hope will undergo a successful resuscitation, is not dead. They acknowledge that most hospital death determinations are made at the moment of asystole, which, from a purely ontologic perspective, is before the patient is dead. They observe that this practice is acceptable because “nothing consequential will happen to the patient over the next several minutes” until the patient is truly dead. Our society permits physicians to declare death earlier for social benefits, rather than awaiting signs of rigor mortis or other unequivocal signs of circulatory irreversibility. We argue that cessation of circulation and respiration is permanent at that point in time after asystole when autoresuscitation cannot occur and if CPR will not be performed. Because the transition to irreversible cessation of circulation and respiration is rapid and inevitable, permanence serves as a valid surrogate marker for irreversibility. We argue that this same situation holds for both organ donation and nondonation circulatory death determinations because identical conditions apply. However, if an ICU physician declared the patient in case 3 dead after 2 min of asystole based on the plan not to perform CPR, but then performed successful CPR, it would show that the prevailing practice of early death determination could create errors if the conditions under which it is valid have been violated. Similarly, if an ICU physician were to perform CPR on a DCDD donor (analogous to case 3), the same error would occur. From a purely ontologic perspective, neither patient is dead until irreversibility can be proved or is obvious. But we allow physicians to declare death at the point of permanent cessation without awaiting or proving irreversibility because this is what physicians and society have determined that we mean by death. Death statutes, such as the Uniform Determination of Death Act, accommodate

www.chestpubs.org

this practice by their language, stating, “A determination of death must be made in accordance with accepted medical standards.” Thus, medical practice issues, not ontologic ones, are paramount in the DCDD argument. Truog and Miller’s claim that the DCDD case is more consequential because of the lethality of removing organs is simply wrong. In fact, organ donation has no impact whatsoever on the inevitable process during which permanent cessation of circulation becomes irreversible.4 This process parallels the gradual destruction of the brain by circulatory arrest and proceeds completely unaffected by organ removal, including that of the asystolic heart. James L. Bernat, MD Hanover, New Hampshire Affiliations: From the Neurology and Medicine Departments, Dartmouth Medical School. FinancialⲐnonfinancial disclosures: The author has reported to CHEST that no potential conflicts of interest exist with any companiesⲐorganizations whose products or services may be discussed in this article. Correspondence to: James L. Bernat, MD, Neurology Department, Dartmouth-Hitchcock Medical Center, Lebanon, NH 03756; e-mail: [email protected] © 2010 American College of Chest Physicians. Reproduction of this article is prohibited without written permission from the American College of Chest Physicians (www.chestpubs.orgⲐ siteⲐmiscⲐreprints.xhtml). DOI: 10.1378Ⲑchest.10-0650

References 1. Truog RD, Miller FG. Counterpoint: are donors after circulatory death really dead, and does it matter? No and not really. Chest. 2010;138(1):16-18. 2. Bernat JL, Capron AM, Bleck TP, et al. The circulatoryrespiratory determination of death in organ donation . Crit Care Med. 2010;38(3):972-979. 3. Bernat JL. Are organ donors after cardiac death really dead? J Clin Ethics. 2006;17(2):122-132. 4. Menikoff J. Doubts about death: the silence of the Institute of Medicine. J Law Med Ethics. 1998;26(2):157-165.

CHEST / 138 / 1 / JULY, 2010

Downloaded from chestjournal.chestpubs.org by Kimberly Henricks on July 6, 2010 © 2010 American College of Chest Physicians

19