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Advance Health Care Directive and Living Will in Pennsylvania: Defining Death

Advance Health Care Directives and Living Wills in Pennsylvania

Defining Death:  Uniform Determination of Death Act

Can a person be simultaneously dead and alive? One would think that it's simple enough to define death. If your heart stops and you do not breathe, you are dead, right? For most of human history, death was exclusively defined as the complete and irreversible cessation of all cardiorespiratory function, meaning that if an individual's heart was not beating and their lungs were not breathing, they were dead. In this definition, it is necessarily implied that the individual's brain is functioning at some level. After all, it is the brain that tells the heart and lungs when and how hard to work. It is a miracle of modern medicine and technology that today, unlike in centuries past, an individual with no brain function can still breathe.

With the aid of a mechanical ventilator, Jahi McMath, a thirteen year old girl, has maintained cardiorespiratory function (breathing and heartbeat) despite being declared brain dead by multiple physicians. In early December, Jahi underwent a routine corrective surgery to address issues related to pediatric sleep apnea. Although she seemed fine, Jahi lapsed into cardiac arrest and suffered severe brain hemorrhaging shortly after the procedure. Before long, all of Jahi's brain function ceased and she was no longer able to breathe on her own. Without the help of a ventilator, Jahi would have stopped breathing and passed away. Jahi, however, is breathing. A machine may be doing all of the work for her, but she's breathing. So technically, since her cardiorespiratory function has not ceased, she is not dead. On the other hand, a battery of tests and multiple evaluations revealed that Jahi is incapable of both voluntary and involuntary movement. There is no blood flow to her brain and there are no signals or impulses coming from her brain whatsoever. She is brain dead and, almost certainly, irrevocably so. Jahi's family believes that she is alive. According to the traditional definition of death, which centers on breathing and cardiac function, they're technically correct. However, Children's Hospital and Research Center of Oakland, California disagrees and believes that, as Jahi's brain is no longer functioning in any capacity, Jahi is dead. Children's hospital went so far as to issue a death certificate for Jahi and, reportedly, staff at the hospital refer to Jahi as "the body" or "the corpse", even in conversations with her family. There was a protracted legal struggle in the local courts involving injunctions which barred the hospital from Recently, Jahi was moved to another facility, the name of which is undisclosed, who has offered to care for Jahi in her current state indefinitely.

The entire sad case has turned on how California law defines "death". Under California law, an individual is dead if their cardiorespiratory function has ceased and/or they are brain dead. California, along with most other states, including Pennsylvania, has adopted the Uniform Determination of Death Act. Promulgated in 1980, the Act does not have anything to do with Living Wills or 'Right to Die' laws. Rather, the purpose of the Act is to provide a straightforward way for legislatures to define the circumstances in which an individual is dead.

The Act provides two definitions of 'death'. First is the long-standing Common Law definition of death, which states that an individual is dead upon "irreversible cessation of circulatory and respiratory functions." The Act also provides a second definition, which allows the law to catch up with modern medical technology. The second definition states that an individual is dead upon "irreversible cessation of all functions of the entire brain, including the brain stem." This definition of brain death has been approved by a number of national organizations, including the American Medical Association and the American Bar Association. For those states who have implemented the Act, death of an individual is determined based on cardiorespiratory failure and/or brain death.

Despite the Act being implemented by a number of states, legal issues relating to whether a person is alive or dead still arise. As we have seen in Jahi McMath's case, the lines are still blurred. Since Jahi is so young, she would not have a living will, which clearly spells out what her wishes are in the event she became brain dead or otherwise suffering from an end-stage medical condition. However, any individual who is able should have a living will. A living will allows an individual to make important decisions regarding medical treatment before an end-of-life care situation arises. Thus, the individual has alleviated the burden of decision making from their friends and loved ones and has a much better chance at avoiding messy litigation, such as that in which Jahi's family was engaged.  If you do not have a living will or advance health care directive, please contact the estate planning attorneys at McMorrow Law, LLC at 724-940-0100 for a consultation to discuss your needs.

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