Four questions to ask when confronted with potential brain death

It’s rare that for a week to go by that we don’t have a conversation with a grieving, stressed-out family confronting end-of-life questions involving a loved one.

Last week, a friend of mine, who’s familiar with the medical malpractice and health law work of Painter Law Firm, called to discuss the unexpected medical situation of his neighbor at home. He went to the neighbor’s house for a visit and discovered that he had just collapsed. He called 911 and an ambulance and emergency medical technicians (EMTs) arrived at the scene quickly. He performed chest compressions with 911 on the line, up until the until EMTs took over.

EMTs took him to a nearby hospital, where he was admitted. Family members converged at the hospital. It wasn’t long until a nurse informed them that things didn’t look good because he had gone without oxygen for a while. The next thing you know, case management personnel and the nursing staff pressed the family to authorize a do not resuscitate (DNR) order, which would allow the hospital staff to do nothing is the patient went into cardiac or respiratory arrest.

The family was understandably shocked. All this happened within just a few hours. What was the big hurry?

When facing a sudden event like this, it takes time to process what’s going on. It takes time to make sure that you’re making the right decision. It takes time to settle on a course of action that you won’t regret.

Anytime I hear a story like this, I wonder if there are medical malpractice or financial motivations at play. It seems cynical and absurd to think about that, but the tort reform caps of Texas law create financial incentives for this type of behavior.

In many other cases, though, healthcare providers just lack a compassionate bedside manner. Their efforts to push family members in the direction of death are related to clearing a bed for the next patient, rather than financial or bad motivation.

When my friend called me about his neighbor’s situation, I felt that it was likely the latter situation. I couldn’t see any way that medical malpractice would’ve likely contributed to the outcome under this timeline.

Thus, I shared advice that I’ve given to a lot of people confronting the uncomfortable situation of being told that they need to let go of a loved one who’s probably brain dead.

After following this advice, some families and healthcare providers were learned that the patient would survive. Others found peace in knowing they made a decision based on a reasonable amount of time and information, which prevented them from second-guessing themselves in the future.

I decided to share this information in this article, in the hope that others may find it helpful.

• When pressed by a case manager, nurse, or physician to make a quick decision to “let go” or to authorize a DNR order because the patient is likely brain dead, ask for copy of the hospital’s written brain death protocol or policy and procedure. Most hospitals won’t release that document but will become more cooperative and less aggressive as soon as you ask this question.

• If the hospital provides you with the brain death protocol, read it carefully, ask questions, and request that they follow it.

• If the hospital won’t give you a copy of the brain death protocol, then ask them to conduct the following three tests that will help verify whether brain death has, in fact, occurred: (1) brain CT scan; (2) brain electroencephalogram (EEG); and (3) brain blood flow test. After discussing these the results of these tests, you’ll be better informed to make a decision.

As I was thinking about this topic, I noticed that healthcare accrediting agency The Joint Commission published an article called “Improving Outcomes of Seriously Ill Patients.” It addresses what the author contends is a need for more palliative care.

By definition, palliative care is basically comfort and quality of life care for people with serious or terminal illnesses. The Joint Commission article cites research on how to identify neurocritical care patients who would benefit from palliative care.

The study recommends the neurocritical care team members ask the following question for every newly admitted patient: “Would you be surprised if this patient died during this hospital stay?” If the answer is “no,” then the study recommended to follow-up events, including: (1) having a social worker identify the surrogate decision-maker within three days of admission; and (2) the primary care team initiates a patient-centered discussion to determine goals of care within four days of hospitalization—this could lead to a palliative care consultation.

While palliative care can be valuable for patients who genuinely needed, I’m concerned about an emerging healthcare culture that seeks to select patients for the “death line” and the “curative care line” shortly after admission. This is something else that patients and families need to be aware of.

If you're interested in learning more about the draconian Texas laws affecting end-of-life issues, check out Painter Law Firm's companion site, Surviving Hospitals.

If you’ve been seriously injured because of poor hospital or medical care in Texas, then contact a top-rated its experienced Houston, Texas medical malpractice lawyer to discuss your potential case.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.