The Concept of Brain Death and the Tragic Cases of Marlise Munoz and Jahi McMath

By Ryan Abbott

Historically, death has been a very simple and intuitive thing to understand – it occurs when someone stops breathing and their heart stops. Visually, it is a dramatic change that anyone can comprehend.

However, we now live in an age where machines can keep people breathing, and their hearts beating, when they would otherwise die. These medical advances have been revolutionary, and they are vital to allowing living patients to recover after severe illness or injury. On the other hand, they can make it more difficult for people to accept and understand death, because it can make dead patients “appear” alive.

Brain death refers to the irrevocable loss of all functions of the brain, including the brainsteam. Someone with brain death is just as dead as someone who has stopped breathing and whose heart has stopped. Doctors confirm brain death through a neurological examination, and once diagnosed the patient is dead. That person will never have any brain functioning and will never return to life or “wake up.”

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Mandatory Settlement Conference in Evolving End-of-Life Dispute

Over the holidays, a dispute about whether to withdraw life-sustaining treatment between the family of Jahi McMath, a young girl pronounced brain dead by doctors after routine tonsil surgery, and her hospital reached state and federal court and began to receive national attention.  (See coverage on CNN here, Fox News here, ABC News here, NY Times here.)

Just a quick flag and comment on the latest development: that a federal magistrate judge, Donna Ryu, has ordered the hospital and family into court tomorrow morning for settlement talks.  Meanwhile, suits are pending simultaneously in state court and before a federal judge.  While the parties have already engaged in extensive discussions, sometimes a judge can lead parties to agreement where one seemed impossible.  I’m still reviewing the case but will follow up if I have anything to add to the news coverage that comes out in the coming days.

Meanwhile, for further scholarly reading on this subject generally, see Glenn Cohen’s 2004 paper in the Harvard Negotiation Law Review.