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Posted on November 9, 2019 at 5:44 PM

Several weeks ago, the family of Titus Cromer obtained a state court injunction against Beaumont Health, requiring the hospital to continue organ-sustaining treatment despite Titus’ death. But, on Thursday, the state court ruled that the injunction would expire on Tuesday, November 12, 2019.

So, on Friday, the family filed a federal lawsuit seeking a TRO and injunction. The federal lawsuit goes way beyond a factual dispute over whether Titus meets the clinical criteria for death. Instead, the federal lawsuit attacks the very legitimacy of the UDDA itself.

Most significantly, the family alleges that the clinical criteria for brain death do not satisfy the legal standards required under the UDDA and Michigan law. On this point they are most probably correct. 

There is a “gap” between the medical tests and the legal requirements. The UDDA requires cessation of “all” functions of the “entire” brain. But prevailing criteria do not measure functions of the hypothalamus and pituitary gland. The family should have obtained more qualified experts to opine on this point. But this claim has legs.

The family also contends the UDDA is unconstitutional because it fails to afford sufficient procedural due process. This is similar to a claim in the Israel Stinson case pending before the U.S. Court of Appeals for the Ninth Circuit. This is a tough claim, because a significant body of jurisprudence holds that clinicians owe no duties after determination of death.

Finally, the family contends that the UDDA violates EMTALA. Interestingly, EMTALA almost never applies to inpatients like Titus. The one exception: hospitals in the Sixth Circuit which include Michigan. Nevertheless, EMTALA applies only to persons. Since he is dead, Titus is not a person protected by EMTALA. This is a clever claim, but probably the weakest of the family’s claims.

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