Legal Guide to Brain Death

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Here’s how a lawyer can help sort out the issues around wrongful death and brain death of a loved one

There are certain topics no one really likes to think about. One of them is the possibility of becoming brain dead. And however unpleasant as it might be, if a loved one suffers a tragic accident that leaves them in a brain-dead condition, you might be forced to make some difficult decisions. That’s why it’s important to know facts about brain death and legal options if the accident was someone’s fault.

A traumatic brain injury is a life-changing event, and it can affect not just the patient, but their family also.

What does it mean to be brain dead?

If a person becomes brain dead, they cannot regain consciousness, breathe or have other necessary brain functions without support. Johns Hopkins Medicine defines the condition as “irreversible cessation of all functions of the entire brain, including the brain stem, with no chance of revival.”

Brain death is different from being in a coma or a vegetative state. A coma is profound unresponsiveness, where a patient doesn’t open their eyes, speak, or perform purposeful behaviors. Not every patient in a coma requires a ventilator, but some do. Most comas are between a few days and a few weeks, and the patient will either die, regain consciousness, or progress to a vegetative state.

When a patient is in a vegetative state, they have depressed consciousness and brain stem function but can breathe without support. They might respond to pain or external stimuli, have sleep-wake cycles or move involuntarily. A person can remain in a vegetative state for a long time, but after a year they are considered to have a very low chance of recovery.

So, is a brain-dead person closer to being alive or being deceased?

We hate to be so blunt, but the distinction is important if you’re trying to figure out next steps and whether you’re entitled to survivor benefits or compensation from an accident.

Medical science is miraculous. Almost unbelievable, sometimes. Some hospital intensive care units (ICUs) can keep a severely brain injured person alive to the point that the shift from deep coma to death might be unrecognizable by family members (or non-medically trained people).

When a patient dies, the doctors might keep their body on life support if they are a registered organ donor to keep organs viable until harvesting. Before declaring that a patient has died, there will usually be a full neurological examination to look for signs of brain or brain stem function. The test is repeated at least six hours later to make sure that the findings were accurate.

It is possible for a patient diagnosed with brain death to be kept on life support machines. This can have legal implications if the family is considering a wrongful death lawsuit.

Legal considerations on behalf of a brain dead person

If you’re dealing with a loved one who’s been recently declared brain dead, your mind is likely a swirl of emotions and questions. First, how did it happen? You might already know the basics of the accident or injury—like if the person was injured in a car accident, truck accident, slip and fall or similar, or if they were a victim of medical malpractice like Jahi or Terri.

If the injury that led to their brain death is the result of someone’s negligence, you might be able to file a medical malpractice or wrongful death lawsuit.

Brain death from medical malpractice

Medical malpractice commonly happens when a licensed medical provider is responsible for:

• Failed to diagnose your condition or gave a wrong diagnosis
• Misread or disregarded important lab results
• Conducted an unnecessary surgery
• Made a surgical error or performed on the wrong surgery site
• Gave improper medication or dosage
• Gave poor follow-up care
• Discharged you prematurely

There are other ways in which medical malpractice could happen also, but this would need to be evaluated on a case-by-case basis.

A patient or their representative can make a claim for medical malpractice if the provider fails to perform their medical duties according to the appropriate standard of care. In other words, the doctor or hospital negligently makes a mistake that results in injury or illness to a patient.

These are complex cases that usually require testimony from a variety of medical experts, and you’ll need an experienced medical malpractice lawyer in order to move forward.

A medical professional’s standard of care is the reasonable approach, practice, or procedure for a particular medical situation.

Reasonableness is determined by what’s common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.

In addition to breaching the standard of care, an injured plaintiff can make a claim that:

• The provider didn’t use their best judgment in determining treatment or care.
• The provider failed to use reasonable care and diligence to apply their knowledge and skill to the patient’s treatment.

Applying this standard to Jahi’s case, it would seem as though the doctor didn’t necessarily perform her tonsil removal surgery incorrectly. BUT, the doctor possibly should have diagnosed the anomaly that caused her to bleed profusely. Or, if it was so rare that the doctor wouldn’t reasonably look for it, they should have responded more quickly when she was in distress and bleeding profusely after the surgery.

In Terri Schiavo’s case, too, it sounds as though her “sudden” cardiac event actually had some warning signs before it happened. For her husband to have won at trial, his attorney must have proven that her doctors were negligent in not diagnosing a condition or symptom that would be likely to lead to a heart attack and if they had properly diagnosed her, the heart attack would not have happened for any other reason.

Wrongful death lawsuits

A wrongful death lawsuit must meet the same basic elements as a personal injury lawsuit: duty, breach, causation, injury and damages.

Duty is probably the easiest standard to meet—everyone has a duty to someone else at some time—and it changes moment to moment. You can have a duty to someone you don’t know and have never met. It goes without saying that a doctor has an automatic duty to any patient in their care. But this applies in less obvious situations, too. For example, a driver has a duty not to cause harm to any other road user, whether it’s a pedestrian, bicyclist or another driver.

If the person with the duty is in breach, it means they have not fulfilled their responsibility to avoid harm to another person. This can be any action or inaction that the person should have reasonably anticipated could cause harm to someone else.

Causation means the defendant’s (the person who caused the injury) action resulted in the injury. Even if a person breached their duty, you can’t have a successful lawsuit unless that breach caused you to be injured. For example, if a driver was speeding and went through a red light, they certainly breached their duty of care to other road users but if you didn’t have a collison with them, there is no causation.

Injury means simply that—to have a lawsuit, you have to be actually injured. Back to the example of the speeding driver who runs a red light... if you did have an accident but you walked away uninjured, there would be no cause for a lawsuit because there is no injury (though you can sue for property loss if your vehicle is damaged). “Injury” is used broadly as a legal term to include illness and death.

Finally, your lawsuit is for the purpose of recovering financial damages, or money. No amount of money can replace the life of a loved one. However, it can allow you to live without worry about your financial losses associated with their death.

The purpose of a personal injury lawsuit (which includes wrongful death) is to make the plaintiff whole, or to restore them to the financial condition they would be in if the injury hadn’t happened.

Wrongful death action or survival action

A wrongful death lawsuit is for the benefit of the surviving family members of the deceased person. They can sue for financial losses they suffer due to the lost income and other benefits they would have received if the person had survived. They can include costs for any medical treatment the person received between the time of the initial injury and the time of death, and the family members’ pain and suffering, loss of consortium and mental distress.

A survival action can be brought by the deceased person’s representatives for costs incurred between the time of the accident and the time of death. This can include medical expenses and lost wages and, in some states, pain and suffering.

And here’s where things become legally murky.

If the patient is brain dead, are they legally living or legally deceased?

Most would argue that the patient is legally alive until they are removed from life support. But there could be a lot of money that hangs in the balance—is it fair to withhold funds from a victim’s family who need to cover their lost income and other expenses if their loved one is brain dead but connected to machines?

If you’re in this impossible-to-imagine situation—where no one ever hopes or plans to be—your best bet is to contact an experienced attorney for help. Your attorney will review all of the evidence and guide you through your options for today and the future.