Recent dubious brain death diagnoses have some calling for an end to the controversial protocol.
Brain-Death Declaration
A prominent recent case involved a 23-year-old Jamaican woman who admitted herself to Montefiore Hospital in the Bronx, New York, for elective surgery on July 30, 2024.
In February, Amber Ebanks, a business student attending school in New York, had been found to have a ruptured arteriovenous malformation (AVM), which involves an abnormal formation of blood vessels in her brain. Although she quickly recovered, doctors recommended an embolization procedure to prevent further ruptures and potential brain damage.
The procedure did not go as planned. Ebanks suffered occlusion of a major artery, accompanied by a subarachnoid hemorrhage, and was transferred to the intensive care unit. On August 9, doctors declared her brain-dead even though she not meet the conditions of the New York Determination of Death statute or of the Uniform Determination of Death Act (UDDA), both of which require either irreversible cessation of circulatory and respiratory function or irreversible cessation of all functions of the entire brain, including the brain stem.
Hospital Pulls the Plug
Amber met neither of those criteria. Her circulatory and respiratory functions were intact, and she was normally regulating body temperature and liver and kidney function.
Even so, the hospital ceased feedings and basic care.
Two doctors, acting at the behest of Amber Ebanks’ family, submitted sworn affidavits that Ebanks was alive when the hospital pulled the plug on September 6, ending her life despite doctors’ ongoing efforts to keep her alive.
Physicians Paul Byrne, M.D., a board-certified pediatrician and neonatologist and brain-death expert, and Thomas M. Zabiega, M.D., a board-certified psychiatrist and neurologist signed affidavits that Ebanks had a “quiet brain,” a temporary condition known as Global Ischemic Penumbra (GIP). With proper treatment, patients have recovered from GIP.
Woke Up During ‘Harvesting’
Another case involved Anthony Thomas Hoover, a Kentucky man who was determined to be brain-dead following a drug overdose in 2021. The case came to light last fall when the U.S. House Oversight and Investigations Subcommittee held a hearing on organ procurement and the Kentucky Attorney General Russell Coleman announced an investigation into Hoover’s death.
Hoover was a registered organ donor. Despite complaints by some medical staff that eye movement and other signs of life indicated he was not brain-dead, doctors proceeded with organ harvesting.
One hour into the harvesting procedure, the patient woke up, physically thrashing and shedding tears. The hospital released Hoover to his family. More than three years later, he is alive and recovering.
UDDA Validity Questioned
Numerous patients’ rights advocacy groups suggest the Uniform Determination of Death Act (UDDA) is a flawed standard that causes unnecessary deaths.
“There seem to be an alarming number of such cases of ‘brain dead’ patients regaining function,” said Twila Brase, R.N., president and cofounder of the Citizens’ Council for Health Freedom.
“The only way to make sure a patient is actually dead is to return to [the standard of] circulatory death,” said Brase. “If the heart stops beating and doesn’t start again, there can be no doubt the patient is dead.
“State legislatures also need to reconsider the Uniform Anatomical Gifts Act, which allows extraction of organs if the patient doesn’t have a form on hand refusing donation or if the patient’s family cannot be reached in time to say no to the taking of organs,” said Brase. “Most Americans unwittingly believe that simply not putting ‘organ donor’ on their driver’s license will protect them. It will not.”
Dubious Origin
Heidi Klessig, M.D. is a retired anesthesiologist who writes and speaks on the ethics of organ donation and transplants. Klessig is even more blunt in her criticism of the UDDA standard.
“Brain death is not biological death, so it’s not surprising that people with this diagnosis can recover,’ said Klessig. “In 1968, thirteen men at Harvard Medical School proposed redefining certain comatose people as being dead. They did this on utilitarian grounds, saying that the lives of these neurologically injured people were a burden to themselves and others. They thought that redefining them as being dead would serve the social purposes of freeing up ICU beds and increasing the number of organs available for transplantation.”
Donor cards and “gift of life” narratives are misleading, says Klessig.
“The public has been given propaganda and slogans about brain death rather than facts and science,” said Klessig. “They are being denied fully informed consent when they sign a donor card. They are not being told that the newest American Academy of Neurology brain-death diagnosis guideline expressly allows people to be declared brain-dead who still have ongoing partial brain function. We need to tell people the truth.”
Big Money in Organ Trade
There is little research available on organ transplant trends, a report in 2020 by the Millman consulting group stated. A Millman infographic on billed charges for various organs shows a heart for transplant generates an average of $1,664,800 in billable charges, $1,240,700 for an intestine, $878,400 for a liver, and double lung at $1,295,900. Survival rates from organ transplants have been trending down.
“Particularly in the case of organ donors, there appears to be a tangible financial inducement to play fast and loose with the brain-death definition,” said Brase. “Other than eliminating organ harvesting altogether, is there a way to limit or minimize financial incentives for hospitals such that the existing conflicts of interest do not exist?”
Government health programs encourage organ harvesting and hence declarations of brain death, says Klessig.
“Hospitals are required to have relationships with organ, eye, and tissue banks, and to alert organ procurement organizations (OPOs) as soon as someone might potentially become brain-dead,” said Klessig.
“If they don’t do these things, they risk losing Medicare funding,” said Klessig. “So there’s financial pressure to comply with the desires of OPOs, which seems to have been a big part of what happened in the T. J. Hoover case.”
Kevin Stone ([email protected]) writes from Arlington, Texas.
