In a recent issue of Neurology, Burkle et al. systematically review how challenges to brain death determinations have been treated in U.S. courts.[1] They conclude that court rulings consistently uphold the medical practice of death determination using neurological criteria. I wish to comment on the study's methodology and limitations.
Burkle et al. reviewed nearly 400 court cases and selected nineteen for analysis. These cases were all drawn from a Westlaw database. While this is a valid research instrument, it has serious limitations. Most medical practice cases are brought in the state courts. Very few of these are litigated to a final judgment. Even fewer are still further litigated to a published appellate decision. Since Westlaw state court databases are comprised almost exclusively of appellate decisions, they provide only a narrow window into how brain death is being treated in the courts.
It is a common feature of brain death disputes, as well as end-of- life treatment disputes more broadly, that they become moot before the slow wheels of justice reach a final resolution on the merits. Looking beyond the universe of published appellate opinions, it is less clear that cases challenging brain death determination are quite as uncommon as Burkle et al. suggest. To be precise, the legal standards are well- settled. But the application of these standards to any particular patient is often controversial. Just one notable example is Utah's Jesse Koochin case from October 2004. There are other examples. Families regularly bring lawsuits seeking injunctions against the removal of life-sustaining treatment. And the courts often issue those injunctions, at least temporary ones.[2,3,4,5]
1. Burkle CM, Schippen AM, Wijdicks EFM. Brain death and the courts. Neurology 2011; 76:837-841.
2. Cole v. University of Kansas Medical Center, No. 06-CV-830 (Wyandotte County District Court, Kansas 2006).
3. Shively v. Wesley Medical Center, No. 06-CV-640 (Sedgwick County District Court, Kansas 2006).
4. Vincent J. Judge grants request for restraining order. The Journal [Martinsburg, WV] 2009; Sept. 9.
5. In re Motl Brody, No. 1:08-CV-01898 (HHK) (D.D.C. 2008).
Burkle et al. reviewed nearly 400 court cases and selected nineteen for analysis. These cases were all drawn from a Westlaw database. While this is a valid research instrument, it has serious limitations. Most medical practice cases are brought in the state courts. Very few of these are litigated to a final judgment. Even fewer are still further litigated to a published appellate decision. Since Westlaw state court databases are comprised almost exclusively of appellate decisions, they provide only a narrow window into how brain death is being treated in the courts.
It is a common feature of brain death disputes, as well as end-of- life treatment disputes more broadly, that they become moot before the slow wheels of justice reach a final resolution on the merits. Looking beyond the universe of published appellate opinions, it is less clear that cases challenging brain death determination are quite as uncommon as Burkle et al. suggest. To be precise, the legal standards are well- settled. But the application of these standards to any particular patient is often controversial. Just one notable example is Utah's Jesse Koochin case from October 2004. There are other examples. Families regularly bring lawsuits seeking injunctions against the removal of life-sustaining treatment. And the courts often issue those injunctions, at least temporary ones.[2,3,4,5]
1. Burkle CM, Schippen AM, Wijdicks EFM. Brain death and the courts. Neurology 2011; 76:837-841.
2. Cole v. University of Kansas Medical Center, No. 06-CV-830 (Wyandotte County District Court, Kansas 2006).
3. Shively v. Wesley Medical Center, No. 06-CV-640 (Sedgwick County District Court, Kansas 2006).
4. Vincent J. Judge grants request for restraining order. The Journal [Martinsburg, WV] 2009; Sept. 9.
5. In re Motl Brody, No. 1:08-CV-01898 (HHK) (D.D.C. 2008).
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