The Whole-Brain Concept of Death Remains Optimum Public Policy

"Brain death," the determination of human death by showing the irreversible loss of all clinical functions of the brain, has become a worldwide practice. A biophilosophical account of brain death requires four sequential tasks: (1) agreeing on the paradigm of death, a set of preconditions that frame the discussion; (2) determining the definition of death by making explicit the consensual concept of death; (3) determining the criterion of death that proves the definition has been fulfilled by being both necessary and sufficient for death; and (4) determining the tests of death for physicians to employ at the patient's bedside to demonstrate that the criterion of death has been fulfilled. The best definition of death is "the cessation of functioning of the organism as a whole." The whole-brain criterion is the only criterion that is both necessary and sufficient for death. Brain death tests are used only in the unusual case in which a patient's ventilation is being supported. Brain death critics have identified weaknesses in its formulation. But despite its shortcomings, the whole-brain death formulation comprises a concept and public policy that make intuitive and practical sense and that has been well accepted by many societies.     

Is organ procurement causing the death of patients?

This article offers a philosophical foundation for the Uniform Determination of Death Act as it first examines death per se, and then examines brain death and the non-heart beating donor criteria for determining death. The author suggests that many of the debates over death can be bypassed by changing the terms of the debate: what matters is not whether death is a process or an event, but death as a state. Understanding death as a state allows us to determine death in a functional manner that is compatible with the needs of law and medicine. The second part examines objections that arise from ignoring or rejecting the distinction between killing and letting die and the principle of double effect. By clarifying the lines between life and death, on the one hand, and between intentionally killing and unintentionally hastening death, on the other, the author hopes to restore a sense that the proposals to drop the dead donor rule are radical recommendations to cross lines we have never crossed before.     

Autonomy and death

In this Article, Professor Clark explores the contours of the current debate over physician-assisted death. She beings by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to rest power over assisted death. She points out the irony in a process that would set up physicians as protectors of individual autonomy, and ultimately concludes that by deferring to the medical profession in this process, we risk losing the very autonomy that assisted death is designed to effectuate.     

论我国死刑案件三审终审制的建构

死刑的适用有利于控制、预防犯罪,但随着保障人权的呼声日益高涨,死刑逐步被废除,没有废除死刑的国家也采取各种救济措施,以防错杀。我国采取的死刑复核程序在保证死刑案件质量方面发挥了一定作用,但其自身也存在着很多弊端,因此建议取消死刑复核程序,实行三审终审制改造。     

“Knowledge and Death Penalty Opinion: The Marshall Hypotheses Revisited.”

This study tests the three hypotheses derived from the written opinion of Justice Thurgood Marshall in Furman v Georgia in 1972. Subjects completed questionnaires at the beginning and the end of the fall a semester. Experimental group subjects were enrolled in a death penalty class, while control group subjects were enrolled in another criminal justice class. The death penalty class was the experimental stimulus. Findings provided strong support for the first and third hypotheses, i.e., subjects were generally lacking in death penalty knowledge before the experimental stimulus, and death penalty proponents who scored “high” on a retribution index did not change their death penalty opinions despite exposure to death penalty knowledge. Marshall’s second hypothesis--that death penalty knowledge and death penalty support were inversely related--was not supported by the data. Two unexpected findings were that death penalty proponents who scored “low” on a retribution index also did not change their death penalty opinions after becoming more informed about the subject, and that death penalty knowledge did not alter subjects’ initial retributive positions. Suggestions for future research are provided.     

Confidence in the death penalty and support for its use: Exploring the value-expressive dimension of death penalty attitudes

Recent media and political attention has raised public awareness of a number of issues surrounding the death penalty. Questions regarding innocence, fair trials, and equitable access to counsel and the appellate process are ubiquitous in coverage of the death penalty. Adequate information about public attitudes toward the death penalty in light of these issues is currently lacking. In 2002, as part of the annual Texas Crime Poll, questions were asked about confidence in the administration of the death penalty, support for the death penalty, and support for a moratorium. The results indicate that, although a majority of respondents support the death penalty, a substantial proportion lack confidence in its use and support a moratorium on executions. Of those lacking confidence and those supporting a moratorium, strong majorities maintain support for the death penalty (68% and 73%, respectively). These findings suggest that death penalty attitudes may be largely value expressive.     

Construing Motive in Videotaped Killings: The Role of Jurors' Attitudes Toward the Death Penalty

Death-qualified jurors are generally able to impose the death penalty, whereas excludable jurors are generally either unable or unwilling to do so. A long line of research studies has shown that the former are more likely than the latter to convict criminal defendants. Ellsworth (1993) argues that jurors' attitudes toward the death penalty predict verdicts because they are embedded in a cluster of beliefs and theories about the criminal justice system. Her studies show that jurors interpret ambiguous conduct based on these belief structures. The present study examines the possibility that death penalty attitudes also influence jurors' conceptions of criminal intent. We showed mock jurors the filmed murder of a convenience store clerk and examined the inferences they drew from this evidence. Jurors who favored the death penalty tended to read criminal intent into the defendant's actions and jurors who opposed the death penalty were less likely to do so. These data provide further explanation of the conviction-proneness of death-qualified jurors.     

Undetermined Manner of Death: An Autopsy Series

A manner of death may be ruled undetermined by the forensic pathologist when there is insufficient information about the circumstances surrounding the death to make a ruling. The aim of our study was to retrospectively analyze a series of autopsy cases that were classified as undetermined manner of death after complete investigations. In all, 48 cases were examined. In 23 cases (48%), the cause of death was determined. The most frequent cause of death was toxic death (n = 11). More than one manner of death was deemed conceivable for most cases (n = 39). The most frequent and the most probable manner of death was accident (n = 37). Homicide was not excluded in about 23% of the cases. Our study showed that the manner of death may remain undetermined despite an established cause of death, and even when two or more conceivable causes of death are considered. Our study pointed out that undetermined manner of death covers a wide range of situations and that homicide may be underestimated.     

A critique on the concept of "brain death"

Since the concept of "brain death" was introduced in medical terminology, enough evidence has come to light to show that the concept is based on an unclear and incoherent theory. The "brain death" concept suffers by internal inconsistencies in both the tests-criterion and the criterion-definition relationships. It is also evident that there are residual vegetative functions in "brain dead" patients. Since the content of consciousness is inaccessible in these patients who are in a profound coma, the diagnosis of "brain death" is based on an unproved hypothesis. A critical evaluation of the role and the limitations of the confirmatory tests in the diagnosis of "brain death" is attempted. Finally it is pointed out that a holistic approach to the problem of "brain death" in humans should necessarily include the inspection of the content of consciousness.     

Can we handle the truth? Legal fictions in the determination of death

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.     

死刑犯的权益保障

死刑问题是近年来刑法学界的热点之一.关于废除死刑还是保留死刑,这方面的论述颇多,尚无定论.学者们能够达成共识的是,我国目前还处于社会主义初级阶段,在当前的物质发展水平和公众观念的条件下,还不能废除死刑.因此,死刑在今后相当长的一段时间内仍将在我国存在.那么,对于可能被判处死刑的"准死刑犯"和已被判处死刑的"死刑犯"而言,如何最大程度地保障他们的合法权益,既是死刑犯及其家属们所切实关心的问题,也应当是刑法学者们密切关注的课题.     

Postmortem increase in potassium in the vitreous humor. Which parameters are suitable as indicators of antemortem agonal electrolyte imbalance?

The relationship between a rise in the potassium concentration in the vitreous humor and the time of death has been established by several authors. Sturner (1963) and Adelson (1963) have been able to demonstrate a more precise relationship between potassium and the time of death in cases of sudden death and death occurring within 6 h as opposed to death after a chronic, lingering disease. However, the duration of the terminal episode cannot always be assessed in forensic medicine. Therefore, it would be valuable if other parameters could also be established that would indicate an agonal dysregulation of electrolytes. Our study revealed that sodium, urea, chloride, and calcium are of great value in indicating antemortem electrolyte imbalance because of their stability in the vitreous humor after death. The first results established that urea may be a suitable internal standard.     

National Association of Medical Examiners position paper on the certification of cocaine-related deaths

The National Association of Medical Examiners Committee on Cocaine-related Deaths recommends that the following guidelines be applied in the process of documenting, interpreting, and certifying potential cocaine-related fatalities. The committee cautions that the investigation of any drug-related death requires a complete investigation of the circumstances of death, the death scene, and past medical history. It is also necessary to have the results of the forensic toxicological analysis and those of a complete forensic autopsy examination prior to formulating an opinion as to the cause and manner of death. Cocaine should be considered the underlying cause of the death when 1 or more of the following is true: (1). the circumstances surrounding the death can be associated with an acute cocaine exposure and there are no supervening causes of death; (2). the immediate cause of death is directly due to a readily identifiable mechanism or disease such as a gunshot wound or a stroke, yet the acute use of cocaine was the direct underlying cause of the trauma or the disease process; and (3). chronic cocaine use leads to a disease that results in an ultimately fatal pathologic process leading to organ injury and death. The committee further cautions that reported drug levels may not directly relate to the toxic or lethal effects of the drug upon the patient. These guidelines are intended for use by practicing medical examiners and physicians who certify drug deaths, as well as providing education tools for students.     

Post-mortem examination prior to cremation--an instrument to verify the quality of medical post-mortems and uncover non-natural deaths?

The external post-mortem examination, its deficient quality and possible causes have been the subject of numerous political and professional discussions. The external post-mortem examination is the basis for the decision whether further criminal investigations are required to clarify the cause of death. It is thus an essential instrument to ensure legal certainty. Before cremation, a second external post-mortem examination is performed by a public medical officer to make sure that errors of the first post-mortem are corrected. In the present study, cases were retrospectively analyzed in which a forensic autopsy had been ordered on the basis of the results of the post-mortem examination performed before cremation. The entries on the death certificate regarding the manner and cause of death were compared with the autopsy results. Between 1998 and 2007, 387 autopsies were ordered after external examination before cremation. In 55 cases (14.2%), the autopsy revealed a non-natural death, although a natural death had been attested on the death certificate. In descending order, a wrong manner of death was attested by clinicians, general practitioners and emergency physicians. With regard to the place where the first external post-mortem had been performed the lowest error rate was seen in nursing homes. Concerning the cause of death, discrepancies between the first post-mortem and autopsy were found in 59.4% of the cases. In this respect, general practitioners and clinicians were ranking first, whereas in nursing homes the cause of death was wrongly assessed in over 70% of cases. At present, the medical post-mortem does not meet the required quality standards, especially with regard to legal certainty. Determination of the cause of death on the basis of the external post-mortem examination is a challenging task even for the experienced medical examiner. As to the categorization of the manner of death it has to be stated that non-natural deaths are often not recognized or that the possibility to certify a death as unclear is not sufficiently used. As a result, it seems important to demand intensive, qualified, additional training in external post-mortem examinations for physicians.     

Accuracy of cause of death determination without forensic autopsy examination

Medical examiners and coroners commonly determine cause and manner of death without an autopsy examination. Some death certificates generated in this way may not state the correct cause and manner of death. From the case files of the Department of Forensic Medicine in Sydney, Australia, the authors retrospectively reviewed investigative information of all cases in a 6-month period that were initially considered natural deaths (429). The authors, blinded to autopsy results, accepted 261 cases as appropriate for certification without autopsy and assigned a cause of death to each. Per standard local practice, all cases had been autopsied. The actual causes of death as determined by autopsy were then revealed and compared with the presumed causes of death. Most presumed and actual causes of death were cardiovascular (94% and 80%, respectively). The majority of presumed causes of death were listed as ASCVD as the cases lacked features of a more specific cardiovascular process. A large majority of cases had a presumed cause of death of ischemic heart disease based on individual case details. The actual causes of death demonstrated a large breadth of cardiovascular and noncardiovascular disease processes, even though ischemic heart disease accounted for 62% of deaths. The presumed cause of death was completely wrong in 28% of cases. A nonnatural manner of death was present in 3% of cases. This study demonstrates that experienced forensic pathologists may generate erroneous death certificates for cases that are not autopsied.     

Variability in cancer death certificate accuracy by characteristics of death certifiers

Death certificates are the source for mortality statistics and are used to set public health goals. Accurate death certificates are vital in tracking outcomes of cancer. Deaths may be certified by physicians or other medical professionals, coroners, or medical examiners. Idaho is one of 3 states that participated in a Centers for Disease Control and Prevention-funded study to assess the concordance between cancer-specific causes of death and primary cancer site among linked cancer registry/death certificate data. We investigated variability in the accuracy of cancer death certificates by characteristics of death certifiers, including certifier type (physician vs coroner), physician specialty, years of experience as death certifier, and number of deaths certified. This study showed significant differences by certifier type/physician specialty in the accuracy of cancer mortality measured by death certificates. Nonphysician coroners had lower accuracy rates compared with physicians. Although nonphysician coroners certified less than 5% of cancer deaths in Idaho, they were significantly less likely to match the primary site from the cancer registry. Results from this study may be useful in the future training of death certifiers to improve the accuracy of death certificates and cancer mortality statistics.     

Brain Death - Too Flawed to Endure, Too Ingrained to Abandon

The concept of brain death has become deeply ingrained in our health care system. It serves as the justification for the removal of vital organs like the heart and liver from patients who still have circulation and respiration while these organs maintain viability. On close examination, however, the concept is seen as incoherent and counterintuitive to our understandings of death. In order to abandon the concept of brain death and yet retain our practices in organ transplantation, we need to either change the definition of death or no longer maintain a commitment to the dead donor rule, which is an implicit prohibition against removing vital organs from individuals before they are declared dead. After exploring these two options, the author argues that while new definitions of death are problematic, alternatives to the dead donor rule are both ethically justifiable and potentially palatable to the public. Even so, the author concludes that neither of these approaches is likely to be adopted and that resolution will most probably come when technological advances in immunology simply make the concept of brain death obsolete.     

Aspects of brain death

The different aspects of brain death are discussed. It is pointed out that the diagnosis of poisoning as the cause of brain death can be checked by toxicological examination of brain tissue and of blood in the sinus of the dura mater, since the metabolism in the brain and sinus blood is markedly reduced while drugs and toxic substances continue to be broken down in the other organs. Particular importance attaches to this difference in the case of crimes of violence creating conditions that predispose to brain death when the significance of a further violent act, e.g. stabbing with resultant haemorrhage, has to be assessed. The simple vital reaction of bleeding does not of itself constitute proof in such a situation, unless it is possible to say with a good degree of certainty that brain death did not occur at the moment when the victim was stabbed. It may, however, be possible to state that brain death that could have been caused by violence has not yet occurred if complex vital reactions, such as inflammation of a wound, are seen.     

Quality assurance review of death certificates: a pilot study

BACKGROUND: Although quality assurance programs for medical examiners are required by the National Association of Medical Examiners' Inspection and Accreditation Checklist, quality assurance programs specifically targeting death certificate completion have not been addressed. The Fulton County Medical Examiner, Atlanta, GA, has implemented a pilot quality assurance program for death certificate information, and this report contains information about 1 year's experience with the program. METHODS: All death certificates are reviewed by the case medical examiner(s) and chief medical examiner prior to their release to funeral homes. Death certificates with errors are retained for quality assurance and review purposes, and needed corrections are made before death certificates are released. During a 1-year period, death certificates with errors were collected and then reviewed and tabulated by type of error. RESULTS: Between May 26, 2003, and May 25, 2004, the Fulton County Medical Examiner certified 1267 deaths. Of these, 47 (4%) were found to contain errors that were corrected and an additional 52 (4%) had been amended for various reasons. The most common errors were misspellings in causes of death or poor or incomplete wording in injury-related information. Forty-seven percent of errors involved omitted, incomplete, or incorrect information that was potentially significant. The most common reason for amended certificates was unexpected detection of acute intoxications among people with significant cardiovascular disease. CONCLUSIONS: Quality assurance review of death certificates can assist in preventing the release of death certificates with incomplete, erroneous, or omitted information and may also be useful as an educational forum regarding completion of the death certificate.     

Death certificates, natural death, and alcohol. The problem of underreporting

Previous studies have identified an apparent underreporting of alcohol-related natural deaths on death certificates. This survey consists of a review of death certificates in one urban county, and provides further evidence that alcohol-caused natural deaths are underreported by physicians who sign death certificates.