Are organ donors after cardiac death really dead?

Journal of Clinical Ethics

Volumn 17, Issue 2, 2006, Pages 122-132

  Bernat, James L ^a  

^a DARTMOUTH MEDICAL SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DEATH; DONOR; ETHICS; HEART ARREST; HUMAN; MEDICOLEGAL ASPECT; NOMENCLATURE; POLICY; REVIEW; STANDARD; TRANSPLANTATION; UNITED STATES;

DEATH; HEART ARREST; HUMANS; LEGISLATION, MEDICAL; PUBLIC POLICY; TERMINOLOGY; TISSUE AND ORGAN HARVESTING; TISSUE DONORS; UNITED STATES;

EID: 33747277693     PISSN: 10467890     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (52)

1. The total number of DCD donors in the U.S. more than tripled between 1999 and 2003. DCD now accounts for up to 24 percent of organ donation in the organ procurement organization of the most active DCD program. See F.L. Delmonico et al., "Organ Donation and Utilization in the United States, 2004," American Journal of Transplantation 5, part 2 (2005): 862-73.
2. University of Pittsburgh Medical Center Policy and Procedure Manual, "Management of Terminally Ill Patients who May Become Organ Donors after Death," Kennedy Institute of Ethics Journal 3 (1993): A1-15.
3. The most current DCD data were reported in J.L. Bernat et al. "Report of a National Conference on Donation after Cardiac Death," American Journal of Transplantation 6, (2006): 281-91.
4. Institute of Medicine, Non-Heart-Beating Organ Transplantation: Medical and Ethical Issues in Procurement (Washington, D.C.: National Academy Press, 1997)
5. and Institute of Medicine, Non-Heart-Beating Organ Transplantation: Practice and Protocols (Washington, D.C.: National Academy Press, 2000).
6. Former Secretary of the DHHS, Tommy Thompson, appointed the Advisory Council on Transplantation that recommended active pursuit of DCD in all hospitals. See Council Recommendation #14 in http://www.organdonor. gov/acotrecsbrief.html. Thompson also supports the Health Resources and Services Administration (HRSA) Organ Donation Breakthrough Collaborative, whose goal is to increase the rate or organ donation in the U.S., one of whose six key strategies is DCD.
7. Organ procurement organization DCD protocols vary on the stipulated length of time of asystole required to declare death. Most have adopted the recommendation by the IOM of five minutes, but some use two minutes. In the Netherlands, they wait 10 minutes.
8. I use the term asystole hereinafter not in its strictest sense, meaning an absence of recordable electrocardiographic activity, but in its more general sense, meaning an absence of cardiac activity sufficient to generate a pulse or blood flow. When the heart stops after apnea, the cardiac rhythm usually diminishes gradually before stopping, but the resultant weak cardiac electrical signal is insufficient to produce a cardiac contraction necessary to create a pulse or blood flow. This condition of absent pumping, despite a present cardiac rhythm, known as "electromechanical dissociation," precedes the total absence of cardiac electrical activity. But it is simpler merely to say asystole because heartbeat and circulation stops even if an ineffectual cardiac signal persists temporarily. This phenomenon has been studied in a series of patients. See E.F.M. Wijdicks and MN. Diringer, "Electrocardiographic Activity after Terminal Cardiac Arrest in Neurocatastrophes," Neurology 62 (2004): 673-74.
9. J. Lynn, "Are the Patients Who Become Organ Donors under the Pittsburgh Protocol for 'Non-Heart-Beating Donors' Really Dead?" Kennedy Institute of Ethics Journal 3 (1993): 167-78;
10. R.D. Truog, "Is it Time to Abandon Brain Death?" Hastings Center Report 27, no. 1 (1997): 29-37;
11. and S.J. Youngner, R.M. Arnold, and M.A. DeVita, "When is 'Dead'?" Hastings Center Report 29, no. 6 (1999): 14-21.
12. J. Menikoff, "Doubts About Death: The Silence of the Institute of Medicine," Journal of Law, Medicine & Ethics 26 (1998): 157-65;
13. and J. Menikoff, "The Importance of Being Dead: Non-Heart-Beating Organ Donation," Issues in Law and Medicine 18, no. 1 (2002): 3-20.
14. Approximately 25 percent of patients in DCD protocols, following ventilator removal, continue to breathe and have heartbeat for greater than one hour before they die, rendering them unsuitable for DCD for logistical reasons. See note 1 above.
15. See notes 8 and 9 above.
16. The absence of auto-resuscitation comprises a critical point of the argument and is one that is answerable using empirical data. There are relatively few studies, but all report no instances of auto-resuscitation after five minutes of asystole. These data are summarized in M.A. DeVita, "The Death Watch: Certifying Death Using Cardiac Criteria," Progress in Transplantation 11 (2001): 58-66;
17. M.A. DeVita et al., "Observations of Withdrawal of Life-Sustaining Treatment from Patients who Became Non-Heart-Beating Organ Donors," Critical Care Medicine 28 (2000): 1709-12;
18. and Institute of Medicine, Non-Heart-Beating Organ Transplantation: Practice and Protocols, see note 4 above.
19. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (Washington, D.C.: U.S. Government Printing Office, 1981), 72-84.
20. Defining Death: Medical, Legal and Ethical Issues in the Determination of Death Ibid., 31-43.
21. J.L. Bernat, C.M. Culver, and B. Gert, "Defining Death in Theory and Practice," Hastings Center Report 12, no. 1 (1982): 5-9.
22. Elsewhere I have defended the assertion that death is intrinsically irreversible. See J.L. Bernat, "The Biophilosophical Basis of Whole-Brain Death," Social Philosophy & Policy 19, no 2. (2002): 324-42
23. and J.L. Bernat, "A Defense of the Whole-Brain Concept of Death," Hastings Center Report 28, no. 2 (1998): 14-23.
24. For an opposing opinion, see D.J. Cole, "The Reversibility of Death," Journal of Medical Ethics 18 (1992): 26-30.
25. E.T. Bartlett, "Differences Between Death and Dying," Journal of Medical Ethics 21 (1995): 270-76.
26. My colleagues and I also used the words permanent and irreversible interchangeably in the past in this context. See, J.L. Bernat, C.M. Culver, and B. Gert, "On the Definition and Criterion of Death," Annals of Internal Medicine 94 (1981): 389-94.
27. The Oxford English Dictionary, 2d ed. (Oxford: Oxford University Press, 2006).
28. The Oxford English Dictionary, 2d ed. (2006). Ibid.
29. I am grateful to Don Marquis and Jeff McMahan for first explaining this distinction to me. See J. McMahan, "The Metaphysics of Brain Death," Bioethics 9, no. 2 (1995): 91-126. But we all acknowledge that in some social and clinical contexts our usages of permanent do not necessarily rely on intent or action, and mean irreversible.
30. Others have attempted to make a similar distinction by offering multiple interpretations of irreversibility. See J.A. Robertson, "The Dead Donor Rule," Hastings Center Report 29, no. 6 (1999): 6-14,
31. and Youngner, Arnold, and DeVita, "When is 'Dead'?" see note 8 above.
32. D. Cole, "Statutory Definitions of Death and the Management of Terminally Ill Patients who May Become Organ Donors after Death," Kennedy Institute of Ethics Journal 3, no. 2 (1993): 145-55
33. and see Cole, "The Reversibility of Death," see note 16 above.
34. D. Lamb, "Reversibility and Death: A Reply to David J. Cole," Journal of Medical Ethics 18 (1992): 31-3.
35. J. Lizza, "Potentiality, Irreversibility, and Death," Journal of Medicine and Philosophy 30 (2005): 45-64.
36. D. Cole, Kennedy Institute of Ethics Journal (1993): 149. Cole separates but criticizes all three construals of irreversible.
37. Youngner, Arnold, and DeVita, "When is 'Dead'?" see note 8 above.
38. L. Carroll, Through the Looking Glass: And What Alice Found There (New York: Books of Wonder, 1993).
39. J. Lynn and R.E. Cranford, "The Persisting Perplexities in the Determination of Death," in The Definition of Death: Contemporary Controversies, ed. S.J. Younger, R.M. Arnold, and R. Shapiro (Baltimore: Johns Hopkins University Press, 1999), 101-14.
40. J.L. Bernat, "The Biophilosophical Basis of Whole-Brain Death," Social Philosophy & Policy 19, no. 2 (2002): 324-42.
41. According to Alexander M. Capron, Executive Director of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, in the seminal work Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (see note 13 above), the President's Commission used the words permanent and irreversible interchangeably (see example on pp. 83-4), although they chose irreversible for the UDDA. Alexander M. Capron, communication with the author, 7 April 2005.
42. J. Menikoff, "Doubts About Death: The Silence of the Institute of Medicine," Journal of Law, Medicine & Ethics 26 (1998): 157-65.
43. Jerry Menikoff, communication with the author, 4 February 2005.
44. There is no mismatch if only the weakest construal of irreversibility is understood as the implied meaning in death statutes. But most scholars presume a stronger construal. In the discussion that follows, I will assume the intermediate (Cole's weak but not weakest) construal.
45. For a history of physicians' determination of death in previous centuries that describes the variety of tests employed to assure that the patient was truly dead, including prolonged observation to the point of rigor mortis, see D.J. Powner et al., "Medical Diagnosis of Death in Adults: Historical Contributions to Current Controversies," Lancet 348 (1996): 1219-23.
46. J.A. Robertson, "The Dead Donor Rule," see note 22 above.
47. See the discussion of this question in R.M. Arnold and S.J. Youngner, "The Dead Donor Rule: Should We Stretch it, Bend it, or Abandon it?" Kennedy Institute of Ethics Journal 3, no. 2 (1993): 263-78.
48. Elsewhere I have discussed the publicized cases showing the fragility of public confidence in the organ transplantation enterprise, particularly in physicians' determination of death in the organ donor. See, J.L. Bernat, Ethical Issues in Neurology, 2nd ed. (Boston: Butterworth-Heinemann, 2002), 262-65.
49. Tom Tomlinson criticized Cole's analysis of irreversible on ethical, not conceptual grounds. He claimed that "the possibility of reversal is not ethically significant" if the DCD patient has consented to organ donation, because declaring the patient dead at this point respects her or his wishes for organ donation. See T. Tomlinson, "The Irreversibility of Death: Reply to Cole," Kennedy Institute of Ethics Journal 3, no. 2 (1993): 157-65.
50. See, for example, R.E. Mejia and M.M. Pollack, "Variability in Brain Death Determination Practices in Children," Journal of the American Medical Association 274 (1995): 550-53,
51. and M.Y. Wang, P. Wallace, and J.B. Gruen, "Brain Death Documentation: Analysis and Issues," Neurosurgery 51 (2002): 731-35.
52. S.J. Youngner et al., "'Brain Death' and Organ Retrieval: A Cross-Sectional Survey of Knowledge and Concepts Among Health Professionals," Journal of the American Medical Association 261 (1989): 2205-10.