Jahi McMath, Brain Death, and the Lies of the Medical Establishment


After post-tonsillectomy bleeding, Jahi McMath suffered a cardiac arrest that damaged her brain. She was declared brain dead. The hospital wants to remove her ventilator, but the family is opposed. While there have been extensions granted by judges, the hospital, the medical establishment, the State of California, and the bioethics establishment have ganged up to force Ms. McMath’s ventilator to be removed. The hospital refuses to do a needed tracheotomy since “we can’t operate on a dead person” (this in spite of the fact that the hospital would support removing the organs of a person declared “brain dead” even though that is surgery as well). The hospital refuses to authorize transport, and under California law, the coroner “has to release the body.” This is an example of declaring a person dead by fiat and is a logical consequence of the acceptance of “brain death” criteria beginning in 1968.

Henry K. Beecher was the chairman of the Harvard committee on brain death. In an article in the 1968 JAMA, he argued that brain death should be considered death in part because organs could then be harvested from the patient while they are still perfused with oxygenated blood. In later articles he was more explicit in saying that death was redefined in the interests of organ transplantation. The 1981 Uniform Determination of Death Act (UDDA) or a compatible law has been passed in all fifty states. The law says death can either be declared after cardiopulmonary arrest or when the “whole brain” is dead. The President’s Commission report claimed that once the brain is dead, the body’s organic unity is gone.

Brain death criteria are not well-supported by evidence. Cicero Coimbra, a neurologist in Brazil, has noted that one of the tests to determine brain death, the apnea test, which involves removing the ventilator from a patient suspected of being brain dead for three minutes to check for spontaneous respiration. Dr. Coimbra points out that this test can itself cause brain death in patients who are not initially brain dead. He also argues that there is hope for some of these patients–hypothermia and other treatments to preserve brain cells may have good results. There have been cases in which a person was about to have organs removed for transplantation–and the person fully recovered. It is possible that removing a ventilator from Ms. McMath might take the life of a person who might not otherwise die from her head injury.

The entire brain is not dead in most cases of brain death–studies have found EEG activity in the majority of so-called “brain-dead” patients tested. For organs to be removed, body temperature has to be close to normal, and body temperature is mediated by the hypothalamus, which is part of the brain (along with the pituitary gland, part of the endocrine system). Supporters of brain death claim that these parts of the brain do not count–one wonders what else they would say would not count if further evidence of continuing brain activity is found.

As the recent President’s Council report points out, brain dead people are organic unities. Their blood circulates, and oxygen/carbon dioxide exchange continue. While the ventilator provides oxygenated air, machine dependence is not equivalent to death. Some conscious people are ventilator-dependent, and no sane person would consider them dead. The President’s Council identified death with loss of respiratory function combined with permanent loss of consciousness. Why, then, does ventilation count for life and not the heartbeat? Also, given that our knowledge is limited concerning the generation of consciousness in the brain, claims of permanent unconsciousness are arrogant at best.

I respect Arthur Caplan as a significant scholar in bioethics. What I cannot respect is his ignoring opponents of brain death in his public statements as if there is no current debate on the topic in academia. It reveals a lack of respect for opponents of brain death criteria, some of whom are physicians (Dr. Coimbra and Dr. Alan Shewmon as well as the late Richard Nilges practice or practiced neurology). Professor Caplan is surely aware that just because a law says death occurs at a certain point does not imply that the law is correct. Many bad laws have been passed–the UDDA may be another example of bad law.

Current bioethicists tend to think that patient autonomy is fine when the patient (or the patient’s family in the case of an incompetent patient) refuses care. But if a patient or patient’s family wants continued care, then there are appeals to “futility,” as if “futility” is not a value-laden term. “Death” is also a value-laden term and can be used for utilitarian ends such as justifying organ harvesting from heart-beating donors or to save money by removing a ventilator from a little girl. The hypocrisy of many doctors, hospital administrators, and “bioethicists” is sickening. The trashing of the value of Ms. McMath’s life is ethically monstrous. Given the history of movements such as the eugenics movement and experiments such as the Tuskegee Syphilis Experiment, I wonder what motivations are really in the minds of some of those most eager to remove Ms. McMath’s ventilator. Utilitarianism now trumps the value of human life, and medicine is corrupted to the point that I wonder whether some doctors are really practicing medicine any more.

If it were determined that Ms. McMath could not recover, the family’s wishes should be honored, even if the care Ms. McMath receives is “extraordinary care.” The family would also have the moral right to ask that the ventilator be turned off — but autonomy goes both ways and not only in the direction that cynical “bioethicists” desire.

The Fundamental Goal of Medicine

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The fundamental goal of medicine is the patient‘s good. Edmund Pellegrino and David Thomasma both focus on that point in their 1981 book, A Philosophical Basis of Medical Practice, the book that has most influenced my approach to medical ethics. All other goals–having an up-to-date facility, having the best equipment at a clinic or hospital, turning a profit, and efficiency in finances, must be subsumed under that primary goal. The good of the patient may involve curative care, or it may involve palliative care in the case of a dying patient. The human person is a whole, body and soul, so medical practice must focus on the good of the whole person and not just on body parts and diseases. The good of the patient may include physical good, but it may also include psychological and spiritual good. Recognizing the complex dimensions of personhood and treating a patient as a person, not as a thing, will do more for the good of the patient than merely diagnosing and treating a physical disease. Even a “physical disease” contains a psychological component, since the patient’s mood can influence the course of the disease for good or ill. Sometimes a physical disease can be triggered by psychological stress. Extreme emotional stress can activate the HIV virus so that a person gets full-blown AIDS. Other diseases may be activated by stress: cardiovascular disease, cancer, rheumatoid arthritis, lupus, infectious diseases. Part of a medical practitioner’s job is to recognize when a patient is having a great deal of emotional stress and encourage the patient to deal with that stress.

Treating the patient as a person implies that assembly line medicine is not ideal. Despite massive debt that young physicians often try to pay off with a high volume of appointments, at some point a provider is spending too little time with patients and comes across an uncaring. Constantly looking at one’s watch does not help. Talking to a patient in a real conversation does. Of course any doctor, PA, or nurse practitioner must have some limitations on patient appointments in order to receive all those in need. Finding the correct balance is not subject to exact rules and is a matter of prudence. Prudence is the ability to make a good decision in both routine and in more troublesome and complex situations. It is an essential virtue, necessary for both everyday medical, as well as for moral, decision making. A list of absolute rules to follow will not help in ethical dilemmas in which rules conflict and are only prima facie, which higher-level rules may supercede.

The fundamental end of medicine implies the principles of benevolence, nonmaleficence, and justice. Autonomy is trickier, since it is an enlightenment concept that may be conditioned by contemporary Western Culture. Kant himself thought we would autonomously give ourselves the moral law, but the term is used today for “the right of every adult to make choices based on their own value systems.” In practice, there is limited autonomy in medicine; not everyone can practice medicine, and drugs must pass FDA approval before being placed on the market. These limitations are so patients will not be misled by quacks or those pushing an untested, ineffective, and perhaps dangerous, drug. Autonomy in patient decision making recognizes that it is the patient’s body who is being affected by medical treatment, and that the patient’s values are not necessarily the physician’s values. I think of respecting autonomy in terms of respecting the free will of patients to make their own decisions regarding health care.¬† This helps preserve the dignity of the patient in a setting in which the sick patient, feeling powerless, tends to lose a sense of dignity.

There are a number of controversial issues in medical ethics that focus on the nature of the patient’s good, or even if there is a patient present to whom the health care provider does good or harm. The abortion issue is one of these–if the fetus is a patient, then abortion amounts to murdering a living human person. If the fetus is not a patient because he is not a person, then the opposite conclusion seems stronger. My own view is that personhood begins at conception, so that any doctor or health care worker helping with an abortion is violating the fundamental end of medicine. The same would follow for euthanasia and for physician-assisted suicide. Many people will disagree with these positions, and I welcome rational argument on any position I set forth in this blog.

Most issues regarding the fundamental good of medicine are more mundane that the large scale bioethical issues often discussed in undergraduate medical ethics courses. Usually the practical everyday issues involve the amount of time spent with patients, dealing with difficult patients, keeping information confidential, keeping medical records accurate instead of falsifying “the little stuff,” and so forth. All these issues involve remembering that the patient is a human person with feelings, with a life, with loved ones, just like the health care provider–and that providers can help a person leave better than when he arrived.

For Profit Medicine: An Oxymoron


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As a traditional conservative I oppose for profit medicine. The classical liberal who calls himself a “conservative,” would probably label the previous sentence as an oxymoron. However, conservatives are not all of one stripe. The ethics of medicine must stem from the nature of medicine itself as an inherently moral enterprise. A patient, sick or injured, in need of help, comes to a health care practitioner. The practitioner, whether he be a physician, a D.O., a physician assistant, or a nurse practitioner, has the moral responsibility to use his skills and knowledge for the good of the patient. The profit motive should not enter into the patient-practitioner relationship–if it does, it becomes inherently corrupting.

For-profit hospitals are a monstrosity. When part of the responsibility of the physician is to the shareholders, business decisions often end up trumping medical decisions. This can lead to suboptimal patient care in order to bring more profit to the corporation, especially in a capitation system in which the practice keeps money left over that is not spent on patient care. . Even in “non profit hospitals,” business decisions affect medical care, and business people “run the show.” Hospital administrators are paid enormous salaries (500,000+ per annum in some cases) along with expensive benefits. I know of a case in which a CEO received a huge bonus even though the hospital had been in the red the previous year. Does this sound familiar? Remember the Wall Street bankers.

The American system of medicine, then, is run as a business rather than as a practice. It is no longer a true profession. Physicians are distrusted. Lawsuits are common and sometimes result in big judgments against a physician.

In reading UK newspaper articles about accidents or shootings, I have found (informally) that paramedics and physicians in the UK are more aggressive in starting trauma codes than their American counterparts. This is, of course, anecdotal–it would be interesting if a large-scale study could be done to compare the numbers in both systems. American physicians used to work up to two hours on a patient in a medical code (that did happen with my mother, who lived with no neurological sequelae). Now, three shocks interrupted by CPR, and often that’s it. Twenty minutes, perhaps thirty, and in rare cases, over an hour–but shorter periods are becoming more and more the norm. Doctors will say this is due to the low success rate–still, twenty minutes even in witnessed arrest in which the patient has no DNR is a short time to say, “He’s dead Jim,” given the utter finality of death. Money may play a bigger role in these decisions than medicine. The UK lacks the profit motive in medicine outside the private health facilities there, so the incentive is to keep trying in a code rather than stop in order to save money (I am indebted to my friend Megan for this insight).

Is it possible for a traditional conservative to endorse a non-for profit single payer system of health care for the United States? It has already happened: Paul Craig Roberts, whose conservative credentials are stronger than most self-styled “conservatives,” has endorsed that system. Affordability in the age of massive deficits is the problem, but if the system is run correctly more money might be saved in the long run due to decreasing health care costs–and if tort law is revised so as to protect physicians from frivolous suits, this could help even more. I am not quite ready to endorse such a system, but the more greed I encounter in the present privatized system the more I am tempted to endorse a nationalized system of health care.¬† It would at least take out the profit motive that is corrupting current medicine and taking it away from its proper ends.

“Evidence-Based Medicine”: Dangers and Opportunities


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“Evidence-based medicine” (EBM) is a mantra mouthed by many physicians and health care policy makers today. The idea sounds good on the surface: that medical treatment be based on sound studies showing a significant statistical benefit (vs. harms due to side-effects) of a particular drug or treatment. When wasteful and ineffective treatments are rooted out of the system, patients will benefit, and treatments will be more cost-efficient. This is, advocates of EBM affirm, a continuation of the tradition of medicine since the scientific revolution of the seventeenth century: good medicine is based on the best science of the day. What could be the problem with that?

Set the clock back to the 1970s. Medicare and Medicaid, even then, were costing taxpayers dearly. Medical costs were rising rapidly, and policy makers sought some means of controlling such costs. Government officials began to collect data from doctors and from hospitals on the drugs and medical procedures used to treat particular diseases and injuries. This included data on the average number of days spent in the hospital, for example, after surgery for acute appendicitis. In this way Diagnosis Related Groups (DRGs) were born.

DRGs were originally meant to be useful data so Medicare and Medicaid could better know how their money was being spent. But in the early 1980s, Medicare¬† and Medicaid used DRGs to limit care to what had been customary. These federal programs would only pay for customary care; if a patient had to stay in the hospital an extra day after surgery, tough. Later, private insurance firms established similar policies, policies that ignored the needs of individual patients. Not everyone is “customary” in the care needed. Someone with a fever after appendicitis surgery might need to stay in the hospital an extra day or two, but insurance companies make it difficult for the patient to be compensated.

Now “evidence-based medicine,” if used the wrong way, can function like DRGs. It can be used to place all treatments and patients undergoing those treatment into a single category that ignores individual differences between patients. This can lead to undertreatment, in the case of a patient that needs more drugs or a treatment that “evidence-based medicine” does not support. Or it could lead to overtreatment if a patient has a condition that would normally be considered risky, but that patient is an exception. Take the rule of thumb that more than six PVCs (“skipped heartbeats” that originate in the ventricles, the lower chambers of the heart) a minute are a danger sign. Often I get far more than six a minute–sometimes fifteen a minute, sometimes ten, sometimes with runs of bigemeny (one normal beat, one PVC, and so on), sometimes trigemeny (two normal beats, PVC, two normal beats, PVC, etc.) But after I was given a stress test it was determined that I was one of the exceptions and that these PVCs are not dangerous for me. But suppose a physician followed the general rule and treated me with beta blockers. These carry their own side effects and risks. The point is that even the best evidence-based conclusions may not fit every individual patient. So prudence remains necessary in applying evidence based medicine to particular patients–medicine is based on science, but medicine itself is a practical art. Hopefully, evidence-based medicine will be used wisely to benefit patients and prevent needless or harmful treatments. Applied solely as a cost-cutting measure or applied legalistically without prudence, it can do patients more harm than good.

Physician Assisted Suicide and the Ends of Medicine

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When I ask my medical ethics students whether they support physician assisted suicide (in the sense of the physician prescribing a deadly dose of a drug, usually barbituates, for the patient to take when he wishes), the vast majority raise their hands. Even most students in my classes who oppose abortion support physician assisted suicide (PAS). To me this is disturbing, especially since the strongest support for PAS has been in my class of future physician assistants.

What is so wrong, you may ask, about physician assisted suicide? After all, even with ideal pain control, some terminally ill patients either remain in a great deal of pain or have to be totally sedated. Why not allow such patients to “control the time and manner of their own deaths?” Surely PAS will encourage more dignified deaths among patients in intractable pain. And in referendums, Oregon and Washington have passed laws permitting PAS. Shouldn’t this practice spread to other states?

Although PAS sounds attractive, its practice would be a fundamental distortion of the proper goals of medical practice. The internal goods of medicine include restoring a patient to health, and when a patient cannot be restored to health, to make that patient as comfortable as possible. But supporting a patient’s suicide indirectly involves the physician in killing a patient. Physicians have a great deal of power over patients, power which, if misused, can lead to pain, suffering, and death–as the Nazi medical experiments and the Tuskegee Syphillis Experiment revealed. Now a physician can withhold or withdraw medical care that is only prolonging the dying process. The goal is not to hasten death per se, but to relieve the patient’s suffering. But prescribing a deadly dosage of a drug is designed to let the patient hasten his death. One may say that the motive is to relieve suffering, but there is a difference between allowing the disease process to take its course and giving a drug so a patient can actively commit suicide. This abuse of medical power has already spread in the Netherlands, where PAS is legal, to doctors actively killing patients without the patient’s permission or the patient’s family’s permission. Once the line forbidding a physician from assisting in a patient’s death is crossed, it will be difficult to turn back. Doctors participating in PAS will not be practicing medicine, but doing something else entirely–being accessories to suicide.

There is an assumption in the modern world that pain is the worst thing that a person can experience. That was not the view of the premodern world. Socrates was willing to suffer pain and death to keep his integrity. The early Christians suffered excruciating torture via persecution–they believed that they were sharing in the sufferings of Christ. And without modern pain control methods, people suffered far more from diseases than they do today, yet the drive for PAS is a modern movement (David Hume was among the first to defend suicide as an option in a person in great pain). This does not mean that we should not try to stop pain as much as possible short of actively killing the patient or giving the patients the means to suicide. Relieving suffering is a moral obligation of physicians as long as medical power does not cross over the line into aiding a patient in his active demise. Even in this post-Christian world, would secularists really want doctors to cross the line into PAS? Could PAS be controlled once the genie is out of the bottle? I do not believe so–but even if PAS is the only line that is crossed, it remains inimical to the ends of medicine and is wrong.

Ethics and Resuscitation

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Contemporary medicine brings with it ethical problems that human beings have not faced before. With the advent of modern resuscitative techniques, issues arise of when to start and stop cardiopulmonary resuscitation. In the 1950s, doctors in hospitals often carried a scalpel that was used when a patient went into cardiac arrest–the chest would be opened, and the heart massaged directly. This method saved the lives of many surgical patients as well as generally healthy pregnant women who had reactions to the anesthesia then routinely given during labor and delivery. It is still used today on trauma victims and on some heart attack victims. In 1960, William B. Kouwenhoven and his associates published an article in the Journal of the American Medical Association on closed-chest heart massage, which is still taught to the general public in CPR classes today. In the early days, doctors would sometimes work on a patient for over an hour, and some of these patients recovered without significant brain damage. Over the years, many other patients suffered severe, disabling brain damage. As CPR spread beyond drowning victims and victims of cardiac death due to a medical condition (such as a myocardial infarction, a “heart attack,” debates over when to use it intensified. CPR might, for example, bring back briefly a dying cancer patient, but what would be the point (unless the patient was waiting for a family member he wished to see before he died or another personal reason)? “Do-not-resuscitate” forms came into vogue, in which the patient or a proxy could let his wishes be known on whether he should be given CPR. I have had several relatives and friends die in peace because they did not go through CPR and advanced cardiac life support after cardiac arrest.

But what about the following scenario: a young woman collapses while jogging at a marathon. CPR is immediately started, along with advanced cardiac life support by the ambulance crew, and the patient is taken to a hospital. It is twenty minutes after her cardiac arrest. Doctors immediately pronounce her “dead on arrival.” This is an actual case; I am leaving out the names of the marathon, the city, and the hospital. What troubles me is that even today some doctors do not give up after twenty minutes, and patients do recover after an hour of CPR and ACLS. Some of these patients fully recover, physically and mentally. Why pronounce a young woman dead twenty minutes after cardiac arrest–maybe her heart only had an electrical glitch that, with treatment, could be controlled, or she could be given an implantable defibrillator and live for many years. We would not know–but twenty minutes seems so short in a decision that guarantees that the woman is dead.

One reason I feel strongly about death being pronounced so quickly in such a case is that my mother suffered a cardiac arrest. Doctors worked on her over two hours (and she did have some times in which her heart would beat off and on during that time), and eventually put one pacemaker line in that did not work; the second line did. She recovered without neurological effects and received a pacemaker and implantable defibrillator.

It seems that too many CPR decisions, both by paramedics and by hospitals, are more based on triage than on what could help patients (albeit a very small percentage of patients). I once asked a PA student who had worked at a hospital whether doctors would work on a trauma patient in cardiac arrest (which they sometimes do if the patient had signs of life at the scene). He replied it depended on how much time they had. I wonder if this is the same for patients in medical cardiac arrest. Now some of these patients may have had a DNR order that was discovered, so when the newspaper says someone was pronounced dead after a short ride to the hospital the DNR is the real reason. But when I read in the paper about drowning victims who were in the water less than five minutes being pronounced DOA twenty minutes later, this is troublesome. Would not there be a moral obligation, in a life or death situation, to try a bit longer, especially given the existence of some successes in the past? If a fifty-year-old man has his first MI, a witnessed arrest with bystander CPR, is twenty minutes’ effort enough for him? I am sure doctors mean well and are looking at “evidence-based medicine,” and studies that say the success rate of ACLS after 20 minutes is extremely low. Because of such studies, paramedics are calling codes over after 20 minutes of CPR and ACLS in the field. In an unwitnessed arrest, this may be justified. If the arrest is witnessed with no CPR given before the ambulance arrived, it may be justified. I am not so sure if the arrest is witnessed.

In the case of trauma, I know of at least two instances, one in Tennessee, the other in North Carolina, in which paramedics said that a patient was dead–and the patient was not. I can understand triage at a trauma scene; the chance of CPR and resuscitative thoracotomy (opening the chest and massaging the heart directly, which is done with some trauma victims) have such a low chance of success with trauma victims) is almost nil (although, contra most articles, there have been survivors of blunt traumatic arrest who fully recovered–check out Woodbury, Minnesota). So if the number of paramedics is limited and someone else with a pulse and severe injuries needs to be treated, in those cases it is acceptable to consider the person in cardiac arrest dead. Otherwise, outside of severe head injuries with brain matter, obviously broken necks, obvious severe bodily trauma, and clear signs that too much time has passed, why not try CPR? Sometimes trauma victims swallow their tongues or get debris in their mouths, and they arrest due to asphyxiation. What is wrong with clearing the airway, trying CPR for a few minutes, seeing if there is any rhythm on the monitor. If not, what harm does it do? It doesn’t harm the patient. And a life might be saved.

I realize that physicians will say, “You’re not a physician and have no right to say anything about these issues.” No, I am not a physician; I volunteered as an EMT-Basic for eight months, but the knowledge from the training is extremely small compared to a physician’s. But I can read articles in medical journals, I can use a dictionary, and I can interpret the data and cases I read. I do know that there is a difference between someone with a shockable rhythm and someone whose initial rhythm is PEA or asystole, and that death will be pronounced more quickly in the latter situations unless a readily reversible cause of the arrest can be found. But the clincher for me is that my mother would have died if the doctors had given up on her. Thank God for them, and for my brother, who pushed the doctors to continue CPR even after they had considered giving up. It is too bad that other patients do not have such an advocate.