Judge: Brain Dead Toddler May Not Remain on Supportive Measures Indefinitely
On Friday May 13th, 2016, U.S. District Judge Kimberly J. Mueller denied a family’s request to keep their brain dead toddler on supportive measures indefinitely. The judge did, however, grant a one-week extension to the order restraining Kaiser Permanente Roseville Medical Center (Kaiser Permanente) from taking the boy off a ventilator.
In early April, two-year-old Israel Stinson suffered an asthma attack, depriving his brain of oxygen for more than forty minutes. After a second attack, and after suffering a cardiac arrest, Israel was placed on a ventilator and declared brain dead. When Kaiser Permanente staff moved to take Israel off the ventilator in accordance with California Health and Safety Code § 1254.4(a), his parents filed an ex parte application with the court to block the staff from disconnecting mechanical support. Israel’s mother argued that it is on the basis of religious grounds, constitutional rights to privacy, and due process as his mother, that she is objecting to the removal of the ventilator. In a heartbreaking video posted recently by Life Legal Defense Foundation, Jonee Fonseca can be seen tickling her little boy and saying “Israel, you have to stop fooling everybody” and “I know you’re going to come out of this, baby.” And therein lies the second tragedy. In the days and weeks following Israel’s placement on a ventilator, the boy has been declared brain dead by no fewer than three physicians at Kaiser Permanente. According to the Uniform Determination of Death Act, brain death is defined by either: (i) irreversible cessation of circulatory and respiratory functions, or (ii) irreversible cessation of all functions of the entire brain, including the brain stem. There is no recovery from brain death. Arthur Caplan, head of the Division of Medical Ethics at New York University, and David Magnus, Professor in Medicine and Biomedical Ethics at Stanford University spoke bluntly about brain death in Time Magazine:
Concepts matter in medicine… Brain death is death. It has nothing to do with being in a coma. It does not refer to a permanent vegetative state. It does not refer to being severely brain damaged.
Caplan and Magnus would like to see the phrases “brain dead” and “life support” stricken from the conversations that take place between hospitals and families as i) the use of “brain dead” gives the impression that the person is not really dead and ii) “removing life-support” sounds a lot like termination of care for a living person. While acknowledging that a brain death diagnosis can be “a devastatingly hard thing to accept”, they argue strongly that such language confuses families and fundamentally lays the groundwork for cases such as this one, and that of Jahi McMath and Marlise Munoz, discussed in a previous blog.
Complicating matters is the assertion by one doctor that there may be hope for little Israel. In a court declaration, Dr. Paul Byrne, a pediatric neonatologist, stated that the toddler “may achieve even complete or nearly complete neurological recovery if he is given proper treatment soon”. Dr. Byrne is a former president of the Catholic Medical Association and current president of a faith-based group called Life Guardian Foundation. According to their website, Life Guardian Foundation is an organization dedicated to the belief that a brain death diagnosis is one promoted by physicians “for the sole purpose of organ transplantation and human medical experimentation”.
Israel’s parents will use the one week extension to take the case to the 9th Circuit U.S. Court of Appeals. They also intend to use the one week reprieve to continue their desperate search for a medical facility in New Jersey that might accommodate the family and agree to take over the boy’s “care”. New Jersey is one of only two states in the United States with a law allowing religious objection to a declaration of death on the basis of neurological criteria. Jahi McMath, for example, lies today in a bed in a New Jersey rental apartment with 24-hour nursing care, as she has for the past two years, while her parents await a ruling on their recent lawsuit to have her death certificate revoked.
Kaiser Permanente is complying with the order to leave Israel on a ventilator until Friday May 20th. A GoFundMe page set up by Fonseca has raised more than $15,300 towards the costs of Israel’s care and transfer.