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  1. #1
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    Brain Death Test, Is Family Consent Required? CA. teen Alex Pierce, June 2016

    Prof Pope's blog, June 11, 2016. http://medicalfutility.blogspot.com/...s-another.html

    "Brain Death in the Courts: Another Injunction Prohibiting Hospital from Conducting Apnea Test"
    "Do clinicians need family consent to conduct an apnea test to confirm suspected brain death?
    ... June 3, 2016, Alex Pierce nearly drowned .... then to Loma Linda University Medical Center. Two days later, Loma Linda informed the Pierce family that they were going to conduct a brain death test on Alex.
    The family "ardently opposed" this plan, concerned that the brain death exam itself specifically the apnea test during which Alex would be taken off the ventilator for several minutes and exposed to dangerous levels of CO2 in his blood could cause further injury to Alex's brain."


    http://thaddeuspope.com/images/Pierce_v_Loma_Linda_petition_June_2016.pdf links to June 7, 2016 filing, Mother's Petition, asking ct to issue Temp Restraining Order/Injunction on four issues.

    Pierce v. Loma Linda University Medical Center (Bernardino County, Cal. June 7, 2016) TRO
    June 7, 2016, on an ex-parte basis, court issued TRO, granting Mother's requests:
    1. Precluding LLUMC from performing any apnea tests.
    2. Precluding LLUMC from removing him from respiratory support or withholding medical treatment.
    3. Requiring LLUMC tocont. maintenance treatment & limit/prohibit Rx which may interfere w accuracy of tests.
    4. Allowing independent neurological exam w aid from LLUMC & to repeat EEG and Cerebral Blood Flow Study.

    June 21 (Tues) hearing is scheduled.

  2. #2
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    Brain Death Court Cases, List, Links to pdf of filings

    http://thaddeuspope.com/braindeath/courtcases.html
    Professor Pope's website lists many brain death ct cases, in eight categories, w links to pdf's of petitions, responses, ct orders & opinions.*

    "1. Consent to Apnea Test
    2. Challenges to Pregnancy Restrictions
    3. TROs Granted to Families
    4. Rulings for Hospitals & Insurers
    5. Damages for Stopping Physiological Support
    6. Damages for Continuing Physiological Support
    7. Damages for Emotional Distress
    8. Other."



    * Professor Thaddeus Pope, Major Professional Positions
    --- Director, Health Law Institute, Mitchell Hamline School of Law
    --- Professor of Law, Mitchell Hamline School of Law
    More about him at http://thaddeuspope.com/



  3. #3
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    Interesting. Is there precedent for the mother's petition?
    Last edited by MamaJoJo; 06-14-2016 at 01:19 AM.

  4. #4
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    Quote Originally Posted by MamaJoJo View Post
    Interesting. Is there precedent for the mother's petition?
    Precedent? Well, kinda sorta. If you have not yet read thread referenced below, I highly recommend it. K_Z is a medical professional who does a fantastic job of explaining medical and legal issues. From W/S, Current Events / Up to the Minute, re a VA. case (w my bolding).
    -----------------------------------------------------------------------------------------------

    http://www.websleuths.com/forums/sho...2#post12628892

    Mirranda Lawson, 2 yo- Family goes to court to prevent brain death tests
    Several cases of children with brain death have been in the news recently, with their families challenging the hospitals thru the courts to prevent withdrawal of life support after the diagnosis of brain death.

    This case in Virginia, IMO, signals a new strategy on the part of the activists, especially Dr. Paul Byrne (who is also advising this family), as they arrive and advise families in similar situations. The particular strategy in the tragic and very sad case of Mirranda Lawson is to attempt to legally prevent the hospital physicians from conducting diagnostic tests to determine brain death. As long as those tests are not conducted, the patient, Mirranda Lawson, is not *legally* diagnosed as brain dead.
    --------------------------------------------------------------------------------------------------------------------------------------

    An interesting twist = pt. fam/ pt. fam's atty asking ct to preclude hosp/med center from performing brain death tests.

    As K_Z post ref'ed ^, until there is a declaration of death, the 3rd party payors (private health ins, Medicare/Medicaid) continues payment for med services provided. IOW, hosp/med center is 'stuck' w BD pt, w no 3rd parties who will pay for treatment & unlikely to get $ from fam.

    Hosp/med center cannot simply demand that the fam come & pick up pt, whose BD status is subject of dispute.
    Not like a (hypothetical) computer store saying to PC purchaser Okay, you bought PC here and brought it back for service, but we are just not able to fix it, so here. There is no hope for cont'ed functioning, so take it elsewhere. Just leave.

    In situations in which hosp/med center has already determined pt to be BD, hosp/med center is obligated -
    - to find another facility which will accept the BD pt or
    - to cont providing med 'care/treatment' to pt.
    ------Medical professionals, pls correct ^ if inaccurate. Thx in adv. -----------

    A patient w fam who wants hosp/med center to continue treatment even after a BD finding, now tries to prevent hosp/med center from determining BD.

    JM2cts, could be all wrong.







    Last edited by sillybilly; 06-14-2016 at 05:42 PM. Reason: add link as per member request

  5. #5
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    I have to admit, the apnea test bothers me. Does it always need to be performed, or are there alternatives? How many types of tests are available for determining brain death?

  6. #6
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    Quote Originally Posted by CCmakes3 View Post
    I have to admit, the apnea test bothers me. Does it always need to be performed, or are there alternatives? How many types of tests are available for determining brain death?
    https://www.aan.com/Guidelines/home/...ineContent/433

    Apnea tests are safe and have specific guidelines in place to prevent any further brain injury.

    I think maybe we need a law that says if parents refuse to allow brain-death testing, the child is immediately discharged into the parents' care and the hospital has no further obligation or liability.
    JMO. MOO.

  7. #7
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    Quote Originally Posted by sonjay View Post
    https://www.aan.com/Guidelines/home/...ineContent/433

    Apnea tests are safe and have specific guidelines in place to prevent any further brain injury.

    I think maybe we need a law that says if parents refuse to allow brain-death testing, the child is immediately discharged into the parents' care and the hospital has no further obligation or liability.
    Very informative, thanks!

  8. #8
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    Quote Originally Posted by CCmakes3 View Post
    I have to admit, the apnea test bothers me. Does it always need to be performed, or are there alternatives? How many types of tests are available for determining brain death?
    There are alternatives, including a cerebral perfusion studies (brain flow); however, I completely agree that apnea tests are "safe" and have guidelines in place to prevent additional brain damage from occurring. Typically the patient is pre-oxygenated with a high % of O2 to prevent oxygen desaturation. The patient must be free of any paralytics, narcotics, or other potentially CNS depressing agents, normothermic and with at least a minimum systolic blood pressure & pulse.
    I have witnessed hundreds of brain death testing and have seen some people attempt inspiration, but many many many more who never did.
    Partially one has to consider that when brain death testing is done, it is most often after many days and hours of attempted medical care to help the patient survive the injury. Physicians will often times delay brain death testing "out of kindness for the family" or honestly for other reasons, like they just don't want to be the one to tell the family that their loved one is dead. I've seen docs write orders for "brain death testing in the morning" when another doc would be on call & have to do it.
    All my posts, unless otherwise noted are JMHO.

  9. #9
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    Quote Originally Posted by al66pine;12628492.

    In situations in which hosp/med center has already determined pt to be BD, hosp/med center is obligated -
    - to find another facility which will accept the BD pt or
    - to cont providing med 'care/treatment' to pt.
    [FONT=comic sans ms
    ------Medical professionals, pls correct ^ if inaccurate. Thx in adv. -----------
    [/FONT]
    I would disagree with the above statement, snipped by me. When a patient who has been declared brain dead, absent of any court order directing them to do otherwise, the hospital is NOT obligated to "find another facility to accept BD patient" nor to "continue providing medical care to BD patient".
    Before my explanation I want to semi-apologize for using blunt language below. Brain death is something I am extraordinarily familiar with, and frankly is not well understood by the general public, partially because of misleading terminology used by both media and medical professionals for a variety of reasons. I use frank language below for the sake of clarity, and apologize in advance if it seems insensitive. It is not intended.
    First, there is no "patient" after brain death is declared. There is a dead body. There is no one to give "medical care" to - there is a dead body. There is ostensibly no medical facility who can care for a dead patient. Just as in cardiac death. This is no different than a person whose heart has stopped beating and who has no pulse (assuming no IABP, no VAD, or no extracorporeal vascular support device is in place). Who would attempt to obtain a court order to prevent a hospital from diagnosing cardiac death? It simply doesn't make sense.
    Absolutely a family experiencing brain death especially in a child is 100% going to experience denial.
    They are going to experience anger, and every other emotion that we can, and can't imagine.

    The hospital is at this point providing more 'care' to the family than the 'patient'.

    In the best case, and honestly, most cases that I've witnessed, hospital staff should prepare the family well before brain death testing by clearly describing the injury, the ramifications, the gravity of the situation and the possible outcomes. As the situation grows more bleak, the medical professionals should honestly describe that to the family. As cranial nerve function is lost (assuming there was some to start with) the family should be educated on what that means.
    Brain death testing should never come out of the blue. Brain death testing has to be explained in advance, not for the family's agreement, but for their education and understanding of the situation.
    After brain death testing the hospital the family some time with the patient before discussing the next steps.

    Insurance or Medicaid or Medicare will stop paying as of the time of death. Again, not to be crass, but after the time of death, the "covered person" isn't a living person.

    Hope I have shed some light on the situation - certainly there is no denying it is a heart wrenching situation, as is any loss of a child.
    Last edited by ALansby; 06-15-2016 at 03:52 PM. Reason: correct typo
    All my posts, unless otherwise noted are JMHO.

  10. #10
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    My Apologies. TY ALansby for the correction

    Thank you ALansby for your correction above. I must have been sleep-posting.
    Now w sufficient caffeine, etc, I see how far off base it was. Since it's too late for me to edit my post, I'll ask a Mod to flag my post as incorrect and to prompt sleuthers to read your post #9.

    I appreciate your taking the time to explain and share the benefit of your professional education & experience.


  11. #11
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    Posted 12 hours ago.

    An "update" of sorts-- not from msm, but from Life Legal Defense Foundation website (who supply lawyers in cases like these when parents disagree with brain death diagnosis or testing).

    BBM.

    Allison Aranda, Senior Staff Counsel for the Life Legal Defense Foundation, filed a petition on behalf of Alex and his mother and requested an emergency restraining order against the hospital that would prohibit them from conducting the “brain death” exam and specifically the apnea test that would remove Alex from his ventilator for a dangerous period of time. Life Legal also asked the court to order that Loma Linda give Alex nutrition and thyroid hormone that is essential to brain healing and function. As of Tuesday, June 7th, Loma Linda had not provided any food or nutrition to Alex since his arrival Friday evening. The judge mercifully granted Life Legal’s request in its entirety.

    Another hearing is scheduled for Tuesday, June 21st. However, Loma Linda is trying to conduct dangerous brain death test before we even go back to court.

    At this time, the Pierce family is holding out hope that their son will respond the life-saving nutrition and hormone treatment that he is finally being given. The family is looking for a long-term care facility that will allow Alex the time needed to recover from this horrific event. Life Legal has located several facilities that are able to care for Alex and give him the time he needs to recover, but these facilities require that Alex have a tracheotomy and a gastric feeding tube. Loma Linda refuses to perform the procedures needed to facilitate the transfer.
    http://www.lifenews.com/2016/06/16/h...ys-objections/

    In this particular situation, it *appears* the judge actually ordered the hospital to give "thyroid and nutrition" to the boy. That is utterly REMARKABLE, in my opinion, and very, very disturbing. However, the court stopped short of ordering the hospital to perform a tracheostomy and gastric feeding tube placement.

    As the legal activists become more saavy, and "get to" the families faster, their strategies are becoming more complex. The ultimate goal appears to delay, delay, delay-- and to interfere as much as possible with the usual hospital procedures that are conducted by law.

    The most recent strategy, IMO, that we have seen in the Lawson and Pierce cases is for brain-death denying legal activists (assisted by Paul Byrne's medical input) to get to the local area fast, and rapidly file for restraining orders to PREVENT the diagnostic evaluation of brain death from being conducted, and thereby prevent the diagnosis of brain death from becoming documented and legal.

  12. #12
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    From K_Z post just above:
    "In this particular situation, it *appears* the judge actually ordered the hospital to give "thyroid and nutrition" to the boy. That is utterly REMARKABLE, in my opinion, and very, very disturbing. However, the court stopped short of ordering the hospital to perform a tracheostomy and gastric feeding tube placement
    ."

    From my post 1, a link to pdf of ct's TRO to LLUMC: Pierce v. Loma Linda University Medical Center (Bernardino County, Cal. June 7, 2016) TRO
    I summarized 4 pts of ct's order. Paragraph 3 relates to "thyroid and nutrition":

    "That an Order be issued that Respondents are to provide Alex Pierce treatment to
    maintain his optimum physical health including but not limited to nutrition and
    thyroid hormone
    as needed in such a manner so as to not interfere with the
    neurological testing such as the use of sedatives or paralytics in such a manner and or
    at such time that they may interfere with the accuracy of the result.
    " bbm

    So not just that ct *appears* to have ordered but did order LLUMC to provide thyroid & nutrition. Yes, remarkable in a way. But in another way, not so remarkable. The goal in filing for TRO asks ct to order ex-parte (without other party, the hosp) hosp to preserve status quo until hosp files response and a hearing can be held on the merits. Imo, not surprising that ct issued order in face of 'irreparable injury that would result (death of Alex) if hosp were to discontinue 'treatment' or 'care,' as alleged by fam.


    For pdf of fam's petition:
    http://thaddeuspope.com/images/Pierce_v_Loma_Linda_petition_June_2016.pdf links to June 7, 2016 filing, Mother's Petition, asking ct to issue Temp Restraining Order/Injunction on four issues.

    Also, https://en.wikipedia.org/wiki/Injunc..._United_States.
    JM2cts.
    Last edited by al66pine; 06-17-2016 at 05:11 PM.

  13. #13
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    Judicial over reach, IMO

    Thank you, al66pine, for the document links above. I was in a rush without time to look them up.

    That is utterly astonishing, IMO, that the court judge would do such an outrageous thing like "order" the hospital to specifically provide "nutrition and thyroid hormone as needed" as part of a restraining order-- which the hospital clearly WAS NOT providing prior to the court order.

    In essence, the court ordered NEW and UNPROVEN treatments that cannot even be considered to be legitimately experimental, and certainly not investigational in any mainstream medical or scientific communities here or abroad. There are LOADS of implications to that for the hospital, doctors, and nurses. You see, there is no scientific or medical justification for that specific treatment in these particular circumstances. One could easily argue that "as needed" is UN-needed. What dosage? How often? What route? For what time period? etc etc etc. Yes, I "get" the fact that some doc was clearly forced to write meaningless orders for thyroid hormone and "nutrition" (enteral? parenteral? What formula? How much? for how long?). And I also get that "probably" no harm will come to AP for such "therapies" (although certainly numerous complications can result, which I won't go into now).

    My point is that the judge should have, IMO, ordered that the CURRENT therapies be continued until the next appropriate hearing, and that no current therapies be withdrawn, and that physicians continue to initiate APPROPRIATE new treatments in accordance with standard medical practice, and according to their clinical judgement of the patient's condition.

    IMO, it is not the place of the court to be ordering any kind of un-scientific or experimental (or "alternative", or "snake oil") therapies in this type of situation when a restraining order is being requested. That is not the role of a judge or the court, however sympathetic the judge might be. This was to be an emergency restraining order-- that is to "restrain" the defendants from doing an affirmative action (testing for brain death)-- not to mandate "new" actions. That my 2 cents. The judge HUGELY over-reached in the order, IMO.

    Now there is a precedent, at least in CA. And that is very disturbing to me.

  14. #14
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    Here's another thought, since we're discussing whether or not families can or must "consent" to brain death testing.

    Should families have to "consent" to physical examination in the case of an unresponsive child? ECG monitoring? Because those are steps in determining whether a patient has cardiorespiratory function, or cardiac death. Should families specifically have to affirmatively "consent" to CPR in unexpected cardiac arrest? Should they have to "consent" to the cessation of CPR and ACLS??

  15. #15
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    For emphasis, I'veadded red & bolding to some of K_Z's phrases.
    K_Z - agreeing 100% w you - it's inapprop for ct to mandate new procedure in a TRO proceeding..

    Quote Originally Posted by K_Z View Post
    Thankyou, al66pine, for the document links above. I was in a rushwithout time to look them up.

    That is utterly astonishing, IMO, that the court judge would do such anoutrageous thing like "order" the hospital to specifically provide"
    Quote Originally Posted by K_Z View Post
    nutrition and thyroid hormone as needed" as part of a restraining order--which the hospitalclearly WAS NOT providing prior to the court order.
    In essence, the court ordered NEW and UNPROVEN treatments that cannot even beconsidered to be legitimately experimental, and certainly not investigationalin any mainstreammedical or scientific communities here or abroad. There are LOADS ofimplications to that for the hospital, doctors, and nurses. You see, there is no scientific or medicaljustification for that specific treatment in these particular circumstances.One could easily argue that "as needed" is UN-needed. What dosage?How often? What route? For what time period? etc etc etc. Yes, I"get" the fact that some doc was clearly forced to write meaninglessorders for thyroid hormone and "nutrition" (enteral? parenteral? Whatformula? How much? for how long?). And I also get that "probably" noharm will come to AP for such "therapies" (although certainlynumerous complications can result, which I won't go into now).

    My point is that the judge should have,IMO, ordered that the CURRENT therapies be continued until the next appropriate hearing, and that no current therapies be withdrawn,and that physicians continue to initiate APPROPRIATE new treatments inaccordance with standard medical practice, and according to their clinicaljudgement of the patient's condition.

    IMO, it is not the place of the court to be ordering any kind of un-scientificor experimental (or "alternative", or "snake oil")therapies in this type of situation when a restraining order is beingrequested. That is not the role of a judge or the court, however sympatheticthe judge might be. This was to be an emergency restraining order-- that is to"restrain" the defendants from doing an affirmative action (testingfor brain death)-- not to mandate "new" actions. That my 2 cents. Thejudge HUGELY over-reached in the order, IMO.

    Now there is a precedent, at least in CA. And that is very disturbing tome.


    As I posted above w links about TROs, I was thinking about the petitioner/mother's June 7 filing as seeking to preserve the status quo in terms of treatment, even tho in this situation, the status quo was established in a short time – 24 hrs? 48? 72?
    I may have mis-read/mis-interpreted the petition & ct order, as I had the impression that the hosphad already been providing nutrition and thyroid hormone June 4-5-6 aspart of the then-current treatment.

    Without reviewing Alex's med charts & doc's for those ~3 days (Mom did not let any grass grow under her feet), who knows what treatments Alex was receiving? As a medically-uninformed person, IDK, don't have the faintest idea.

    K_Z or anyone, esp med professionals--
    thoughts about w
    hether hosp was likely already giving nutrition& thyroid hormone just a few days after admission?



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