Brain Death: Turmoil at the Intersection of Law and Medicine
In Roseville, California, Jonee Fonseca and Nate Stinson await a decision by a federal judge with respect to the fate of their little son. On April 2nd 2016, two year old Israel Stinson suffered an asthma attack, depriving his brain of oxygen for more than forty minutes. He was seen in the E.R., admitted to hospital, suffered a second attack, lapsed into a coma, and was placed on a ventilator. Days later, he was declared brain dead by doctors at Kaiser Permanente Center in Sacramento (Kaiser Permanente). According to the Uniform Determination of Death Act, an individual is dead when he or she “has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”
California Health and Safety Code § 1254.4(a), mandates that “after a reasonably brief period of accommodation”, a hospital may shut down the cardiopulmonary equipment that keeps the heart of a brain dead patient beating. However, when Kaiser Permanente moved to take Israel off the ventilator, his parents filed an ex parte application with the court to block the medical center from disconnecting this supportive measure. Israel’s mother argued that it is on the basis of religious grounds that she is objecting to the removal of the ventilator; “We won’t give up. God won’t give up. Who is a doctor to go against God?” The ex parte application further seeks an order compelling placement of a tracheostomy tube and gastric feeding tube so that the toddler can be provided respiratory support and nutrition. Ultimately, the parents hope to have Israel transferred to a medical facility in New Jersey. Why New Jersey? Unlike other states, the New Jersey Declaration of Death Act provides that “the death of an individual shall not be declared upon the basis of neurological criteria when … such a declaration would violate the personal religious beliefs of the individual.” Such religious beliefs subscribe to the principle that the heart is the sole indicator of death, even if that heart is artificially supported by mechanical means. On April 30th, the United States District Court issued a temporary restraining order preventing Kaiser Permanente from removing Israel’s ventilator. On May 2nd, an extension to that order was granted; supportive measures must be maintained until May 11th, at which time another hearing will be held.
If any of the facts of this case seem tragically familiar, it is because they echo the case of young Jahi McMath. You may recall Jahi, the 13 year old girl whose complications after a routine tonsillectomy rendered her brain dead in a California hospital in 2014. Jahi’s parents would not accept the declaration of brain death by their daughter’s hospital, fought to have mechanical ventilation continued, and successfully won the right to have her body transferred to a facility that agreed to sustain supportive measures (ventilator, tracheostomy and gastric feeding tube). To this day, Jahi remains in a hospital bed in New Jersey.
Kaiser Permanente has indicated that they will comply with the decision of the federal judge next week.