Online Symposium on Munoz and McMath Cases

By Michelle Meyer

UPDATE: Following Friday’s court order (discussed below), the hospital today (Sunday, Jan. 26, 2014) removed the ventilator from Marlise Munoz, who has met the criteria for brain death since Nov. 28, 2013.

Two high-profile, rapidly evolving cases involving death by neurological criteria — better known as “brain death” — raise vexing and sometimes novel legal, ethical, and medical questions at the edges of life and death. I’m organizing an online symposium on these cases over at The Bioethics Program Blog, and will be cross-posting my contributions here, beginning with this introduction to the symposium, which brings readers up to date with legal developments through today. Please contact me if you’re interested in participating.

The Marlise Munoz Case

On November 26, 2013, Erick Munoz found his wife, Marlise, unconscious on their kitchen floor. She was then 14 weeks pregnant with their second child. Erick resuscitated her and she was transported, alive, to John Peter Smith Hospital, where she was placed on a ventilator to assist her breathing and given other life-sustaining treatment. Not long thereafter, however, Erick says that the hospital told him that Marlise was brain dead.

Although Marlise did not have a written advance directive, according to Erick, both he and Marlise had

worked as paramedics during their marriage, and thus were knowledgeable of and had personally witnessed injuries that resulted in death, including brain death. Erick and Marlise frequently discussed their requests, beliefs and desires with each other, and expressed clearly to each other, family members and friends, their respective desires not to be resuscitated should either of them become brain dead.

Erick requested, with the “full support” of Marlise’s parents, that the ventilator be removed from her body and that he be given possession of it for burial.

The hospital refused. It argued that § 166.049 of the Texas Advance Directives Act (TADA) — which provides that “a person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” — prohibits it from removing the ventilator. It was not entirely clear whether the hospital believed that Marlise was in fact dead or not. The media was reporting as late as December 24 that the hospital had said that Marlise was in “serious condition,” and the hospital had not released Marlise’s medical records, which Erick said would show a diagnosis of brain death, to him.

After the jump, this week’s developments in the Munoz case, the McMath case, and a list of symposium participants.

On January 14, 2014, Erick sued the hospital, asking the court to declare that TADA does not apply to Marlise, who is dead, or, in the alternative event that the court finds that Marlise is alive, that TADA violates her 14^th Amendment liberty rights to liberty and equal protection under the law, and asking the court to order the immediate removal of the ventilator. Erick, through his lawyers, also released information suggesting that the fetus is “distinctly abnormal.” His affidavit describing what it has been like for him to “watch[] JPS provide medical treatment to my wife’s corpse,” is here.

On January 23, in its response, the hospital — represented by the District Attorney — finally acknowledged that Marlise met the clinical criteria for brain death — and had since November 28, 2013. It argued, however, that TADA continues to apply after her death:

Since the Act allows withdrawal of life sustaining treatment from a patient who is not pregnant, the reasonable inference is that section 166.049 was enacted to protect the unborn child against the wishes of a decision maker who would terminate the child’s life along with the mother’s.

The state’s interest in protecting fetal life, the hospital argued, does not cease upon the death of the pregnant woman. “If this were the case, the Legislature would not have provided that life sustaining treatment must continue for the pregnant woman or would have provided for withdrawal of treatment upon the death of the mother.” The hospital argued that Erick’s constitutional claims were not ripe for consideration but that TADA is constitutional, “because it properly balances the interest of the state in protecting the life of the unborn child against the right of Ms. Munoz to have life sustaining treatment withdrawn.”

On January 24, the court ruled that § 166.049 does not apply to the deceased, and that someone who meets the criteria of brain death is dead under Texas law. It ordered the hospital to pronounce Marlise dead and remove the ventilator no later than 5 p.m. on Monday, January 27, 2014. The fetus is now 22 weeks’ gestation. It remains to be seen whether the District Attorney’s Office will appeal.

The Jahi McMath Case

Meanwhile, in California, thirteen-year-old Jahi McMath was declared brain dead on December 12, 2013, following complications from the tonsilectomy she had undergone three days earlier. The Oakland hospital that had been treating her wanted to remove the ventilator and cease all other treatment, but her family believes that Jahi is alive until her heart stops beating, a criterion for determining death to which some religions adhere. Jahi’s family won a court order temporarily preventing the hospital from removing the ventilator and, later, negotiated her transfer to an undisclosed facility (rumored to be this one in Medford, New York) that agreed to accept and “treat” her. In the brain dead, cardiopulmonary and other organ functions can be maintained by ventilators for weeks or, in rare cases, years, although the body continues to deteriorate. In the interim, no autopsy to determine the cause of death can be performed, and the body’s continual deterioration makes an eventual autopsy less likely to reveal the cause of death, which will likely have implications for any medical malpractice suit.

The Impetus for the Symposium

As Stanford Law professor Hank Greely observed, the Munoz and McMath cases have lead to an “unprecedented” amount of discussion by scholars and practitioners on a closed bioethics listserve run by Art Derse, of the Medical College of Wisconsin’s Center for Bioethics and Medical Humanities. In order to open up some of our often-spirited discussion to a broader readership, several members of the listserve have decided to recreate portions of it here. We hope you’ll help us continue the conversation in the comments.

Confirmed participants include:

• Ryan Abbott, M.D., J.D., M.T.O.M.
  Associate Professor of Law, Southwestern Law School, and Visiting Assistant Professor of Medicine, David Geffen School of Medicine at UCLA
• Alexander M. Capron, LL.B.
  University Professor, Scott H. Bice Chair in Healthcare Law, Policy and Ethics, Professor of Law and Medicine, Keck School of Medicine, Co-Director, Pacific Center for Health Policy and Ethics
• Pablo de Lora, Ph.D.
  School of Law, Universidad Autónoma de Madrid
• Michelle Meyer, J.D., Ph.D.
  Assistant Professor of Bioethics and Director of Bioethics Policy, Union Graduate College–Icahn School of Medicine at Mount Sinai Bioethics Program
• David Orentlicher, M.D., J.D.
  Samuel R. Rosen Professor and Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law
• Thaddeus Mason Pope, J.D., Ph.D.
  Director, Health Law Institute, and Associate Professor of Law, Hamline University School of Law
• Katherine Taylor, J.D., Ph.D.
  College of Nursing and Health Professions, Drexel University
• Alan Jay Weisbard, J.D.
  Professor Emeritus, University of Wisconsin, and Executive Director, New Jersey Bioethics Commission (1987-90)
• James Zisfein, M.D.
  Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

Contributions will be posted on a rolling basis, and other participants may join later.