022474 nyt To Decide What Dead Means

By ALEXANDER M. CAPRON

The questions sound like law school hypotheticals. One man shoots another in the head. The victim is rushed to the hospital and hooked up to modem life-support systems. Although his heart and lungs are functioning, the doctors decide his brain is dead. His heart is removed and transplanted. Is the assailant guilty of murder? A man has an automobile accident that causes severe brain damage to a young girl whose still beating heart is given to a waiting cardiac patient. Can he be convicted of manslaughter, or only of felonious drunken driving?

But these cases are real. Both are in the courts in California. And practicing doctors and lawyers there, and across the country, have found themselves faced with many questions and few answers. When is a person legally and medically dead? Can there be, or should there be, any difference between the medical and legal definitions? And who should decide?

California Attorney General Evelle Younger has appointed a "blue ribbon" committee of physicians, clergymen and lawyers, chaired by the eminent cardiologist Dr. George C. Griffith, to assess the impact of the recent cases and to formulate a new legal rule. The premise of the committee, Deputy Attorney General Joel Moscowitz says, is that the definition of death is a matter for resolution by public bodies, and not merely by the medical profession.

At issue is the application of the traditional legal definition of death-the cessation of all vital bodily functions, including circulation and respiration - to new medical capabilities. In the shooting and accident cases, doctors determined the victims had suffered "brain death," and transplant procedures followed. In one of the cases, now on appeal, trial court judges have disagreed about the actual cause of death.

Uncertainty about the legal definition has "scared hell out of doctors and coroners" in California, according to Dr. Folkert Belzer, chief of the transplant service at the University of California Medical Center. There's been a "precipitous decline" in kidneys available for transplant as a result of these cases, he added.

The Doctors' Dilemma

The difficulty with the "complete cessation of all vital functions" test presently applied in the courts is that so long as a patient is supported by an artificial respirator, doctors cannot tell if his heart is beating naturally. As Dr. Alfred P. Fishman, director of the Cardiovascular-Pulmonary Division at the hospital of the University of Pennsylvania, has put it: "If we turn off the machine to find out, we may prejudice the survival chances of a weak patient who still has some chance of recovering. The deterioration of the patient's organs is also accelerated, which is bad if he's slated as a donor." The dilemma is not unique to transplant cases. The question "Is this person dead?" arises even more frequently in the routine care of terminal patients whose general condition is too poor for their organs to be used.

In the past, many doctors have held that deciding when a person is dead is entirely a medical matter, in which the courts and legislatures ought not to meddle. The American Medical Association, meeting in Anaheim, California, in December, 1973, reaffirmed its opposition to any "inflexible"statutory definition. But other physicians, including , Dr Griffith, argue that the medical profession must respond to the fact that public bodies are going to have a hand in deciding how death will be defined legally.

Another issue is whether it should be the courts or the legislatures that frame a new general standard. The present definition is the result of judicial decisions taken over the years as new cases arose. Alameda County Deputy District Attorney Albert W. Meloling plans to urge the judge in one of the cases to rule that determining death should be left to the doctors, but under proper guidelines set by either the courts or the legislature.

To reach a definition favorable to "brain death," however, the courts will have to go against precedent. As recently as 1968, a California appellate court rejected the notion that new transplant techniques should lead to abandonment of the current definition. And some doctors fear that a court ruling might be slow in coming, and not be definitive.

Legislative Answers

one resolution of both the legal and medical problems in the present rule would be a statute or precedent recognizing that in cases in which artificial means of support preclude reliance on the traditional life signs (heartbeat and breathing), a patient may be declared dead on the basis of a permanent and irreversible cessation of spontaneous activity, in his brain, including cessation of those faculties that control respiration and circulation.

Dr. Thomas V. Byrne of the Los Angeles County-University of Southern California Medical Center says that transplant physicians in California have been seeking such legislation for the past year, but with no success. Deputy Attorney General Moscowitz has distributed to the California committee charged with formulating a new rule a model statute proposing such a definition.

Mr. Moscowitz has also considered the statute "relating to and defining death" adopted, in Kansas in 1970, and the similar legislation enacted in Maryland in 1972. Both measures provide two definitions of death In the first, death Is considered to have occurred if a doctor determines "then is the absence of spontaneous respiratory and cardiac function and ... attempts at resuscitation are considered hopeless." In the second, death is defined by the absence of.~ spontaneous brain function, if it appears that "further attempts at resuscitation or supportive maintenance will not succeed."

Both the Kansas and the Maryland statutes have been criticized for setting forth two "alternative" criteria but not stipulating when they are to be applied. Professor Ian Kennedy of University College, London, has argued, too, that the Kansas statute "is bound [to create] popular misunderstanding," since it suggests that a person could be dead under one definition, but alive under the other. Rather than use the Kansas statute, Mr. Moscowitz has drawn up and circulated a proposal of his own.

Dr. Griffith expects the California Attorney General's committee to consider the proposals, and other suggestions from its members. "I hope it will arrive at agreement fairly quickly," he says, "so a law could be adopted this spring."

Alexander M. Capron teaches law at the University of Pennsylvania.