Presenter: Dr. David Kelly
Moderator: Neil Funnell
Dr. David Kelly is the author five books, the latest of which is Medical Care at the End of Life, as well as numerous articles on ethics and medical ethics in various professional journals. David is well known as a speaker on medical ethical issues. He now lives on Hilton Head Island in South Carolina and has recently released a second edition of his textbook, Contemporary Catholic Health Care Ethics, for Georgetown University Press. He retired in 2006, after 25 years at Duquesne University in Pittsburgh, PA, where he was appointed Professor Emeritus. David was the Founding Director of the Duquesne University Health Care Ethics Center.
David stated the following: There has been a good deal of discussion, mostly in professional publications, about whether or not organ donors of vital organs are really dead when their organs are taken. Organ donation has saved thousands of lives and is supported by most people. But whether “dead” donors are really dead remains an open question. It used to be easy to know when someone died. Their hearts stopped and they stopped breathing and there was no way to get them breathing again.
But this changed with CPR and especially with mechanical ventilators. With CPR there is a way to get them breathing again, even after some time, as for example a child who drowns in cold water. And with ventilators it is possible to keep someone breathing who otherwise would not be able to breathe on his or her own and who has lost brain function. So the question is whether or not some or all of these are alive.
To deal with questions like these, states have adopted a law called the Uniform Definition of Death Act (UDDA). It has been accepted legally in all American jurisdictions. It says that a person is dead when there is either irreversible cessation of all cardiac (heart) function or irreversible cessation of all brain function, including that of the lower brain or brain stem which controls breathing and other similar bodily activities. The key word here is irreversible. And this seems logical. The child who recovers after the cold water was never dead. Her loss of heart function was not irreversible. CPR started it up again. And if a person on a ventilator in a coma can recover brain activity then there was no irreversible loss of brain function.
But there are problems. One set of problems deals with so-called “brain death.” Here most, though not all, agree that the person really is dead and that the organs can be taken. The problems are mainly theoretical ones and we will not bother with them now. We are going to concentrate instead on another set of questions that have practical implications: are donors dead who have been declared dead because their hearts have stopped? The UDDA says that a person is dead when there is irreversible cessation of the heartbeat. This was, after all, the old fashioned way of knowing someone is dead. So when a person dies this way, the organs can also be taken.
This is called: DONATION AFTER CARDIAC DETERMINATION OF DEATH (DCDD)
The problem here, of course, is that once the heart stops, the oxygen does not get to the organs and they start to die. With a brain-dead person the ventilator keeps the heart beating, and even though the person is dead the organs get oxygen. But here the heart is stopped. So time is essential. And that causes real practical problems. The most usual case of this is the following. A clearly alive patient is on a ventilator. He is clearly not at all brain dead. He is not even in a coma. Perhaps he is capable of significant interaction. He is capable of communicating to his doctors and of telling them what he wants. But he has a terminal illness that will kill him and only his ventilator allows him to breathe. Clearly this person is not dead. But he has reached the time when he does not wish to continue his life-sustaining treatment. He knows he will die soon regardless of what is done. He finds the ventilator uncomfortable, perhaps even agonizing. He has various aches and pains and if they sedate him he loses his capacity for thought and interaction. He wants to be allowed to die.
The doctors tell him he has organs they can use to save other lives. He agrees to be sedated and to have the ventilator turned off so that he can die peacefully. After his heart stops they declare him dead and take his organs. Is he really dead? How long do we have to wait to declare him dead after his heart stops?
Remember we noted the law called the Uniform Definition of Death Act (UDDA). It says that a person is dead when there is either irreversible cessation of all cardiac (heart) function. The key word here is irreversible. How long do we have to wait to be sure it is irreversible?
The most well-known protocol for doing this is the one used by the University of Pittsburgh Medical Center (UPMC). UPMC has written widely about this in the professional literature. At UPMC once a dying patient on a ventilator has agreed to have the ventilator turned off so that he can die and to have his organs taken, he is put into a coma and after the ventilator is turned off, they wait until his heart stops and then they wait two more minutes (the “two minute protocol”), declare him dead, and take his organs.
But two minutes is too short a time to get to the point of irreversibility required by the UDDA. CPR could still start his heart. If they discovered, for example, that some terrible mistake had been made and they had the wrong person, they could still start his heart and he could still recover consciousness. So in the normal understanding of being dead, he was never dead. But if they wait longer, the organs start to deteriorate.
Now here is what UPMC and all the scholars who support this kind of protocol–and many do– say to defend it.
First, they point out that when a person’s heart stops in the hospital, and there is a DNR order, or there is clearly no hope of resuscitation, doctors do not have to wait any time before declaring death. So there is no need to wait in these cases either. But it seems that this is not the same thing because usually they are not going to do anything to the “deceased” which requires that he be dead. They will simply leave him in the bed for the next hour or so and by then there will certainly be irreversibility. The case of the organ donor is different. Declaring someone dead does not make him dead.
Second, they distinguish irreversibility and permanence. They admit the heart function is not irreversibly stopped. But they claim it is permanently stopped because two conditions are met: 1) It cannot start by itself. “Auto-resuscitation” is impossible. 2) It is ethically wrong and illegal to use CPR to start it up again because the donor has quite properly insisted on no further aggressive treatment. The patient has said he does not wish to be resuscitated. He has said he wishes to be allowed to die. So, they say, if both these conditions are met, the cessation is permanent.
The following solutions to this dilemma are proposed: