Brain-Stem Death and Donor Cards: Determination and Legal Ramifications

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Brain-Stem Death and Donor Cards Determination
and Legal Ramifications

• Presented by
• Edward S. Kornreich, Esq.
• ekornreich_at_proskauer.com
• 212.969.3395
• November 15, 2006

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Topics

• Organ Donation Generally
• Determination of Death
• Consent to Organ Donation
• Equitable Allocation of Organs and
• Non-Discrimination

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Organ Donation Generally

• Organ Procurement Organizations (OPOs)
• Coordinate organ procurement in designated
  service areas, which may cover all or part of a
  state.
• Evaluate potential donors.
• Discuss donation with family members and arrange
  for the surgical removal of donated organs.
• Preserve organs and arrange for their allocation
  according to national organ sharing policies.

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Organ Donation Generally (contd)

• Uniform Anatomical Gift Act (UAGA)
• Provides a uniform process for organ donation.
• Adopted by all 50 states, including New York.
• Good faith provision protects hospitals and
  other providers from civil and criminal
  liability.
• a person who acts in good faith in accord with
  the terms of this article or with the anatomical
  gift laws of another state is not liable for
  damages in any civil action or subject to
  prosecution in any criminal proceeding for his
  act. (New York Public Health Law 4306(3))

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Organ Donation Generally (contd)

• In August 2006, Governor Pataki signed into law a
  series of bills to encourage organ and tissue
  donation. These bills require
• The prominent display of the words Organ Donor
  on a drivers license or renewal in cases where
  the person has consented to donate.
• A license application or renewal form to include
  a box for a voluntary one dollar donation to the
  Life Pass It On Fund, to be used for
  initiatives and research related to organ
  donation.
• An outreach program to inform New Yorkers about
  the need and importance of organ and tissue
  donation.

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Organ Donation Generally (contd)

1. A public report on presumed consent for organ
   donation by the Transplant Council, a division of
   the State Department of Health that advises the
   Commissioner on organ donation matters.
2. The transformation of New York State Organ and
   Tissue Donor Registry (now renamed the Donate
   Life Registry) from one of intent to donate to
   one of consent to donate.
3. A state tax break of up to 10,000 for certain
   unreimbursed expenses incurred by a living organ
   donor.

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Determination of Death

• Under New York regulations, death is determined
  when an individual has sustained either
• irreversible cessation of all functions of the
  entire brain, including the brain stem (brain
  death) or
• irreversible cessation of circulatory and
  respiratory functions (cardiac death).

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Determination of Death (contd)

• Brain Death
• The brain death standard facilitates transplant
  of certain organs that are only suitable for
  transplant if they are removed when blood is
  still circulating.
• Under New York Guidelines, the three essential
  findings for brain death are
• Coma
• Absence of brainstem reflexes and
• Apnea.

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Determination of Death (contd)

• Hospital responsibilities regarding brain death
  determination
• Provide reasonable accommodation of an
  individuals religious or moral objection to use
  of the brain death standard to determine death
• Allow physicians with the proper training and
  competency to make brain death determinations in
  accordance with accepted medical standards
• Notify the next of kin or other person closest to
  the patient that brain death determination is in
  progress and
• Determine brain death via appropriate clinical
  examinations and tests in accordance with
  accepted medical standards.

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Determination of Death (contd)

• Physicians responsibilities regarding brain
  death determination
• Evaluate the irreversibility and potential causes
  of coma
• Initiate the hospital policy for notifying the
  next of kin
• Conduct and document the first clinical
  assessment of brain stem reflexes
• Observe the individual during a defined waiting
  period for any clinical inconsistencies with the
  diagnosis of brain death

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Determination of Death (contd)

• Conduct and document the second clinical
  assessment of brain stem reflexes
• Perform and document the apnea test
• Perform confirmatory testing, if indicated
• In some patients, skull or cervical injuries,
  cardiovascular instability, or other factors may
  make it impossible to complete parts of the
  assessment safely. In these circumstances, a
  confirmatory test verifying brain death is
  necessary.

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Determination of Death (contd)

1. If the individuals religious or moral objection
   to the brain death standard is known, implement
   hospital policies for reasonable accommodation
2. Certify brain death and
3. Withdraw cardio-respiratory support in accordance
   with hospital policies, including those for organ
   donation.

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Determination of Death (contd)

• Cardiac Death
• Organ donation after cardiac death involves the
  scheduled withdrawal of a life-sustaining
  ventilator from a patient prepared for surgery.
  Following cardiac arrest and cessation of
  respiration, a prescribed number of minutes are
  permitted to elapse, and then death is declared
  and organ retrieval promptly commences.
• In New York, for most patients only the single
  individual who has been appointed as the
  patients Health Care Agent under New Yorks
  Health Care Proxy Law will be legally authorized
  to consent to the withdrawal of a patients
  life-sustaining ventilator.
• But the Health Care Agent does not have the
  authority to consent to an anatomical gift.

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Consent to Organ Donation

• Who may donate any individual of sound mind and
  18 years of age or more may give all or any part
  of his or her body for the following permissible
  purposes
• Any hospital, surgeon or physician, for medical
  or dental education, research, advancement or
  medical or dental science, therapy or
  transplantation
• Any accredited medical or dental school, college
  or university or the State Anatomical Board for
  education, research, advancement of medical or
  dental science or therapy
• Any bank or storage facility, for medical or
  dental education, research, advancement of
  medical or dental science, therapy or
  transplantation or
• Any specified individual for therapy or
  transplantation needed.

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Consent to Organ Donation (contd)

• Manner of executing anatomical gifts
• By will, effective upon the death of the testator
  without waiting for probate.
• Document other than a will, which may be a card
  designed to be carried on the person, signed by
  the donor.
• Gift may be made either to a specified donee or
  without specifying a donee.

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Consent to Organ Donation (contd)

• Revocation of authorization
• If the will, card, or other document or executed
  copy thereof has been delivered to a specific
  donee, the donor may amend or revoke the gift by
  
• the execution and delivery to the donee of a
  signed statement
• an oral statement of revocation made in the
  presence of two persons, communicated to the
  donee
• a statement during terminal illness or injury
  addressed to an attending physician and
  communication to the donee or
• a signed card or document, found on his person or
  in his effects.

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Consent to Organ Donation (contd)

• Next of Kin
• If the deceased has not indicated his or her
  wishes regarding organ donation, next of kin may
  make an anatomical gift.
• Authorization for donation shall not be rescinded
  by an objection by next of kin, except upon a
  showing that a donor revoked the authorization.

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Consent to Organ Donation (contd)

• Historically, out of fear of liability, practice
  has been to permit next of kin to revoke
  anatomical gifts. However
• the legislative history of this law indicates it
  was meant to reaffirm the primacy of the
  intentions of the donor and
• providers who act in good faith in accordance
  with the UAGA, which does not permit such
  revocation, are protected.
• If you would like to be an organ donor, talk to
  your next of kin about your decision.

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Consent to Organ Donation (contd)

• The following classes are considered next of
  kin in this order of priority
• spouse
• son or daughter 18 years of age or older
• either parent
• brother or sister 18 years of age or older
• guardian of the person of the decedent at the
  time of death
• any other person authorized or under the
  obligation to dispose of the body

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Consent to Organ Donation (contd)

• New York Bill A11883/S8379 Amends New York
  Public Health Law regarding anatomical gifts
• Changes the organ and tissue donor registry from
  indicating an intent to donate to providing
  consent to donate.
• Allows registered individuals to indicate which
  organs and tissues they want to donate and if the
  donation can be used for transplantation,
  research, or both.
• Indicates that any person registered in the organ
  and tissue donor registry before the law takes
  effect shall be deemed to have expressed intent
  to donate, until and unless he or she files an
  amendment to his or her registration or a new
  registration expressing consent to donate.

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Consent to Organ Donation (contd)

1. Requires the Commissioner of Health to contact
   each person registered before the law goes into
   effect, in writing, to inform him or her that at
   the time he or she registered, that the registry
   was one of intent and that the registry is now
   one of consent.
2. Requires the Commissioner of Motor Vehicles to
   provide a space on the drivers license
   application for the applicant to register in the
   organ and tissue donor registry.

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Equitable Allocation of Organs and
Non-Discrimination

• Directed donations
• Directed donationsthe gift of an organ to a
  recipient named by those authorized to make the
  donationare permissible.
• To receive a directed donation, the recipient
  must be formally accepted for a transplant by a
  transplant center and medically compatible (blood
  type, size, etc.) with the donor.

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Equitable Allocation of Organs and
Non-Discrimination (contd)

• The network of OPOs is required to establish
  policies for the equitable allocation of organs,
  including the reduction of inequities resulting
  from socioeconomic status. Allocation policies,
  among other requirements, shall
• be based on sound medical judgment
• seek to achieve the best use of donated organs
• preserve the ability of a transplant program to
  decline an offer of an organ or not to use the
  organ for the potential recipient in accordance
  with the regulations

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Equitable Allocation of Organs and
Non-Discrimination (contd)

• be specific for each organ type or combination or
  organ types to be transplanted into a transplant
  candidate
• be designed to avoid wasting organs, avoid futile
  transplants, promote patient access to
  transplantation, and promote the efficient
  management of organ placement and
• not be based on the candidates place of
  residence or place of listing.

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Equitable Allocation of Organs and
Non-Discrimination (contd)

• Can a donor request that his or her donated
  organs be allocated only to Jewish recipients?
  Should a donor be permitted to do so?
• OPOs and hospitals are subject to laws
  prohibiting discrimination.