Posted on May 7, 2016 at 5:10 PM
The brain death dispute in the US District Court for the Eastern District of California continues between the family of Israel Stinson and Kaiser Permanente Roseville.
Clinicians declared death on April 14th, 24 days ago. But the hospital is under a TRO to continue physiological support. The parties have submitted briefing over whether the court should extend that TRO with a preliminary injunction. The hearing is on Wednesday, May 11.
To assure federal jurisdiction, the family has now asserted a claim under EMTALA. They also challenge the California brain death statute as unconstitutional, since it affords no procedural due process mechanism for challenging the declaration of death. It will be interesting to see whether they can establish that Kaiser is a state actor because California delegated to the power to declare death to private physicians.
The family has submitted declarations from brain death critics Byrne and Shewmon. Interestingly, Byrne cites the McMath case as evidence that current brain death diagnostic criteria are inadequate. The family has also submitted literature (e.g. by Seema Shah) showing the ongoing debate over the conceptual coherence of brain death.