Posted on May 10, 2018 at 10:57 AM
Compassion & Choices has filed an amicus brief defending California’s legal definition of brain dead as dead.
The California UDDA is under challenge because of a decision by Children’s Hospital of Los Angeles to stop artificial life support for a brain dead two-year-old boy. The deceased boy’s mother and a right-wing religious group have filed a lawsuit in a federal appeals court.
A federal judge previously dismissed the lawsuit in March 2017, Jonee Fonseca et al v. Karen Smith et al, challenging the state law’s definition of death filed on behalf of Israel Stinson’s mother, Jonee Fonseca, and Life Legal Defense Foundation by the Pacific Justice Institute.
The plaintiffs claim the state’s health department director, Karen Smith, M.D., should have prevented the hospital from discontinuing Israel’s artificial life support in August 2016, even though a state court order declared he was legally dead, so his artificial life support should end.
“The modern consensus that brain death is actual death derived from years of painstaking study and recommendations by dedicated medical and legal researchers … with joint support from the American Medical Association, the American Bar Association and the National Conference of Commissioners on Uniform State Laws,” said the Compassion & Choices brief filed in the 9th Circuit Court of Appeals in San Francisco.
In April 2016, doctors at UC Davis Medical Center in Sacramento determined that Israel suffered a severe asthma attack that left him brain dead. The diagnosis was confirmed by doctors at Kaiser Permanente in Roseville, who recommended removing Israel from life support.
“Certainty and uniformity in the determination of death helps families through the process of implementing their loved ones’ wishes and provides a legal framework to guide treating physicians,” said brief coauthor Kevin Díaz, Esq., national director of legal advocacy for Compassion & Choices.
“The development of technologies that can artificially sustain a heartbeat and respiratory function have the potential to ‘mask’ that death has already occurred,” said brief coauthor Jon B. Eisenberg, Esq, of Healdsburg (Sonoma County).
The finding of legislative fact in the 1982 California Uniform Determination of Death is that modern advances in medical technology have created a need to modernize the legal definition of death to include the irreversible cessation of all brain functions. The policy choice is that determinations of death are to be made by healthcare professionals in accordance with accepted medical standards — not by the state.
“We urge the appeals court to uphold the lower court’s rejection of this lawsuit and reinforce California’s longstanding definition of death,” concluded brief coauthor Josephine K. Mason, Esq., a San Francisco-based associate in the law firm of Hanson Bridgett LLP.