This is an appeal by the guardian ad litem appointed for William Matthew Bowman (Matthew) prior to Matthew's death, from the decision of the Snohomish County Superior Court ruling that because he had suffered irreversible loss of brain activity, he was in fact dead on October 17, 1979. Issues raised on appeal are: (1) whether law or medicine should define the standards establishing when death occurs; (2) if law is to define those standards, should the brain death standard be adopted; and (3) if that standard is adopted, what role should medicine have in defining the criteria for determining whether the standard has been met. We hold that it is for law to define the standard of death, that the brain death standard should be adopted, and that it is for the medical profession to determine the applicable criteria — in accordance with accepted medical standards — for deciding whether brain death is present. Our action affirms the judgment of the trial court.
Matthew Bowman, age 5, was admitted to Stevens Memorial Hospital on September 30, 1979, after suffering massive physical injuries inflicted by a nonfamily member who was caring for him. The next day the Department of Social and Health Services filed a petition alleging that Matthew was dependent, inasmuch as his parents could not be found. A shelter care order was entered which authorized the Department to transfer him to Children's Orthopedic Hospital and give consent to such medical and surgical care as was deemed necessary by the attending physician. When the natural parents were found, the original order was amended to give the Department and the parents power to authorize routine medical care and all necessary emergency care.
A hearing was held on October 17, 1979, to determine whether the dependency petition should be dismissed because a parent was present and able to care for the child. The guardian ad litem for Matthew, who had been appointed prior to the location of his parents, resisted the dismissal on the ground that the result would be a decision to terminate the life support systems sustaining Matthew.
That testimony indicated that Matthew had been unconscious since admission to Stevens Hospital, and except for a brief period of increased neurological activity, had gradually weakened. He was being maintained on a ventilator, which enabled him to breathe and provided oxygen to his heart, and various other life support mechanisms. Numerous tests had been performed during his hospitalization to measure Matthew's brain functions.
The physician testified that on the date of the hearing Matthew showed no brain activity. An electroencephalogram (EEG) gave no reading and a radionuclide scan, which shows whether blood is getting to and through the brain, found a total absence of blood flow. No cornea reflex was present and Matthew's pupils were dilated and nonreactive to any stimuli. There were also no deep tendon reflexes or other signs of brain stem action, nor responses to deep pain or signs of spontaneous breathing. Body temperature and drug intake had been controlled to avoid adverse influence on these tests. The testifying physician indicated that he believed Matthew's brain was dead under the most rigid criteria available, called the "Harvard criteria", and that his cardiovascular system would, despite the life support systems, fail in 14 to 60 days. He further testified that all physicians in the Children's Orthopedic Hospital intensive care unit agreed that Matthew was no longer alive by October 17 and recommended that he be removed from the ventilator, a recommendation consented to by his mother. According to the physician, brain death is operative as a definition of death in the state of Washington, and medically accepted criteria exist in the state for determining when brain death occurs. These generally require coma, lack of electrical activity, and lack of blood flow to the brain.
Findings of fact entered by the trial court and supported
The trial judge then held, based on the findings of fact that:
Matthew's guardian ad litem, after the testimony, requested the court to enjoin the withdrawal of life support equipment and compel the Department to authorize extraordinary measures. The hospital was also joined as a party. The court enjoined Children's Orthopedic Hospital from terminating or removing the life support systems until October 27, 1979, in order to give the guardian ad litem the opportunity to appeal the trial court's decision to the Supreme Court. The matter was noted for argument on October 24, 1979. Despite the maintenance of the life support systems, all bodily functions of Matthew ceased on October 23, 1979. Although technically moot, the question presented meets all the criteria set forth in Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972), and the court therefore heard argument in the case.
Until recently, the definition of death was both medically and legally a relatively simple matter. When the heart stopped beating and the lungs stopped breathing, the individual was dead according to physicians and according to the law. The traditional definition did not include the criterion of lack of brain activity because no method existed for diagnosing brain death. Moreover, until recently, no mechanical means have been available to maintain heart and lung action; and respiration, heart action, and brain function are so closely related that without artificial support, the cessation of any one of them will bring the other two to a halt within a very few minutes. Wasmuth, The Concept of Death, 30 Ohio St. L.J. 32, 38 (1969). Thus, Black's Law Dictionary 488 (4th ed. 1951), based upon older medical technology, defines death as:
With the recent advancement of medical science, the traditional common law "heart and lungs" definition is no longer adequate. Some of the specific factors compelling a more refined definition are: (1) modern medicine's technological ability to sustain life in the absence of spontaneous
The numerous legal issues which look to the time and presence of death as determining factors require a legal response to these new developments. Inheritance, liability for death claims under an insurance contract, proximate cause and time of death in homicide cases, and termination of life support efforts are but a few of the areas in which legal consequences follow from a determination of whether death has occurred.
Recognizing that the former common law definition of death is no longer universally applicable, respondents maintain that brain death is also death under Washington law such that life supports may be terminated. Appellants, on the other hand, argue that there is an insufficient basis for the law to move away from the traditional "heart and lungs" definition, and to do so, as the trial court did, is tantamount to depriving persons of life.
The specific issue in this case is whether or not Matthew was legally dead on October 17, 1979, when the physicians declared that he had suffered brain death. We are not presented with the much more difficult question of whether life support mechanisms may be terminated while a person is still alive but in that condition known as a "persistent vegetative state," in which some brain functioning continues to exist. We are concerned here only with whether brain death, identified as the irreversible destruction of the entire brain from which cardiorespiratory death inevitably follows, is a recognized standard of death in this state.
With the ability of modern medical techniques to restore the function of vital organs or compensate for their nonfunction, medical decisions may be made based not on "scientific" fact but on the physician's concept of life and death. The decision by a physician as to whether a person is dead is thus not merely a medical, biological, or physical conclusion. It is, in part, a philosophical decision about what conditions define human life, combined with an empirical determination that those conditions are absent and not latent in a given case. Lecture by Ronald Moore, Associate Professor of Philosophy, University of Washington, at Washington Appellate Judges' Conference (April 30, 1980). The determination involves differentiating between human life and biological life, marking the dividing line between what constitutes human life and that which is purely mechanical.
Aspects of the philosophical problems involved in this issue have been frequently discussed. See generally L. Isaacs, Death, Where is Thy Distinguishing?, Hastings Center Rep. (February 1978). One of the most thoughtful is found in the June 20, 1980, statement by the Vatican Congregation for the Doctrine of the Faith. In section 4 of that statement, entitled "Due Proportion in Use of Remedies," the Congregation addressed the problem of protecting the moment of death, in terms of both the dignity of the human person and the concept of life, against a technological attitude that threatens to become an abuse. "Some people," they stated, "speak of a `right to die' which is an expression that does not mean the right to procure death either by one's own hand or by means of someone else, as one pleases, but rather the right to die peacefully with human and Christian dignity. From this point of view, the use of therapeutic means can sometimes pose problems.
"Everyone has the duty to care for his or her own health or to seek such care from others. Those whose task it is to care for the sick must do so conscientiously and administer the remedies that seem necessary or useful.
This concern is universal for all of every faith and background. One of the difficult questions discussed in the Vatican statement concerns the question of what means to maintain some bodily functions are proportionate and what are disproportionate.
A clarification of the general principle stated by the Vatican addresses the issue of proportionality and states that it is permissible to make do with normal means that medicine can offer. "Therefore one cannot impose on anyone the obligation to have recourse to a technique which is already in use but which carries a risk or is burdensome. Such a refusal is not the equivalent of suicide; on the contrary, it should be considered as an acceptance of the human condition, or a wish to avoid the application of medical procedures disproportionate to the results that can be expected, or a desire not to impose excessive expense on the family or the community.
"When inevitable death is imminent in spite of the means used, it is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted."
These issues are properly addressed by the law, as they require the striking of a balance between competing interests in our society.
P. Fitzgerald, Salmond on Jurisprudence 64 (12th ed. 1966).
While 20 years ago a victim of cardiac arrest had little chance of survival, now, however, up to one in five victims
Society does not require physicians to be experts on the philosophical aspects of these questions, or to define which physiological functions decisively identify a living human organism. Society does turn to physicians, like other scientists, to suggest which "vital signs" have what significance for which human functions. They may, for example, show that a person in an irreversible coma exhibits total unawareness to externally applied stimuli and biological needs and complete unresponsiveness, and they may project that when tests for this condition yield the same results over a 24-hour period, there is only a very minute chance that the coma will be "reversed." However, the judgment that total unawareness and complete unresponsiveness are the equivalent of death addresses questions more related to philosophy and law and is not the exclusive domain of medicine.
The determination by a physician that the symptoms of brain death are present, in accordance with acceptable medical standards, emphasizes that cessation of brain function is a symptom of the loss that makes a person dead, rather than the loss itself. It is the law's determination that brain death is the legal equivalent of death because — under current medical science — the capacity for life is irretrievably lost when the entire brain, including the brain stem, has ceased functioning.
However, mechanical maintenance of heartbeat and circulation can be continued only for a limited period of time when the brain stem has been destroyed. It is this limited survival period that distinguishes between brain death and the persistent vegetative state. In the latter state, irreversible damage occurs to the cerebral cortex, but the brain stem continues to function. Considerations involved in dealing with this condition are entirely different from those involved in brain death and require the drawing of a line between severe dysfunction and no function at all. That is not the case now before this court.
Determination of whether cessation of brain function has occurred may be made in a matter of minutes. The decision as to whether it is irreversible may require several days. Ingestion of suppressant drugs and low body temperature
The medical profession has established criteria by which to measure whether brain death has occurred. In Lovato v. District Court, ___ Colo. ___, 601 P.2d 1072 (1979), after extensively discussing the history of modern scientific views on the medical community's definition of death, the Colorado Supreme Court discussed the medical profession's brain death criteria. In 1968, a Harvard Medical School committee developed criteria which now constitute the basis of accepted medical standards for the determination of brain death. Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 J.A.M.A. 337 (1968). See Lovato, at 1076. These "Harvard criteria" require (1) unreceptivity and unresponsivity to even the most intensely painful stimuli; (2) no spontaneous movements or spontaneous breathing for at least 1 hour; (3) no reflexes, as shown by no ocular movement, no blinking, no swallowing, and fixed and dilated pupils. The report further recommended flat electroencephalograms (EEG's) as a confirmatory test, and that hypothermia and use of central nervous system depressants as causes be eliminated. The Task Force on Death and Dying of the Institute of Society, Ethics, and Life Sciences appraised this report, and concluded that the Harvard criteria were reasonable and appropriate. More recently, refinements in the criteria have been proposed. See Refinements in Criteria for the Determination of Death: An Appraisal, 221 J.A.M.A. 48 (1972); An Appraisal of the Criteria of Cerebral Death: A Summary Statement, 237 J.A.M.A. 982 (1977). We defer to the medical profession for further refinement of the criteria.
Both courts and legislatures have responded to these medical advances and adopted brain death as a standard of death. At least 25 state legislatures have enacted brain
In 1975, the American Bar Association sought to simplify earlier brain death legislation. It approved a model which is now used by two states,
In other states, brain death has been approved by judicial ruling. In Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 54 L.
Uniform Brain Death Act § 1, 12 U.L.A. (Supp. 1980).
As was the case in Colorado and Massachusetts, no statute in this state has been enacted to define what constitutes death as posed by the facts now before us. It is both appropriate and proper, therefore, that this court decide that question. The definition adopted in Lovato does not clarify how the concept of brain death is interrelated with the more traditional definition of death as the cessation of respiration and circulation. A revised act was submitted to the National Conference of Commissioners on Uniform State Laws on July 26, 1980. That act, approved and recommended for enactment in all states, harmonizes the two concepts, clarifying possible ambiguity previously existing.
Adoption of this standard will alleviate concern among medical practitioners that legal liability might be imposed when life support systems are withdrawn, even though the brain is irreversibly dead and circulation and respiration will inevitably cease. It will also permit discontinuation of artificial means of life support in a manner where even those most morally and emotionally committed to the preservation of life will not be offended. We do not address
We therefore adopt the provisions of the Uniform Determination of Death Act which state:
Uniform Determination of Death Act (August 7, 1980 recommendation). This standard reflects both the former common law standard and the evolutionary change in medical technology.
The action of the trial court is affirmed.
STAFFORD, BRACHTENBACH, HOROWITZ, DOLLIVER, HICKS, and WILLIAMS, JJ., and HAMILTON, J. Pro Tem., concur. ROSELLINI, J. (dissenting in part)
I would hold that an individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem, is dead. A determination must be made in accordance with reasonable medical standards.