Request By:
Mr. Stephen A. Williams
Administrator
Caldwell County Hospital, Inc.
P.O. Box 410 - 101 Hospital Drive
Princeton, Kentucky 42445
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office on this question: "Who may pronounce a patient dead in a hospital?"
DEATH CERTIFICATE
First, as to the responsibility for signing the death certificate, such certificate must be signed by the physician or surgeon in attendance upon the deceased who died under natural circumstances. See KRS 72.465(1). See KRS 213.990, concerning the penalty where any physician in medical attendance upon a deceased person at the time of death neglects or refuses, on request, to make out and deliver to the undertaker, sexton or other person in charge of the disposition of the body the medical certificate of cause of death. A repeated failure to report births and deaths shall be sufficient cause for the revocation of a physician's certificate to practice medicine in Kentucky. Thus the death certificate must be signed by the physician, if any, last in attendance on the deceased, pursuant to KRS 213.080(2), where the death is deemed a natural one and is not a coroner's case. Under KRS 72.405(2), a "coroner's case" means a case in which the coroner has reasonable cause for believing that the death of a human being within his county was caused by any of the conditions set forth in KRS 72.025. When death occurs without a physician in attendance, then under KRS 213.090(1), the undertaker shall give notice of the death to the registrar, who shall then refer the case to the local health officer for immediate investigation and certification, prior to the issuing of the burial permit. City of Ashland v. Miller, Ky., 283 S.W.2d 195 (1955). Thus any hospital finding or having possession of the body of any person whose death occurred under any of the circumstances outlined in KRS 72.025 (coroner cases) should immediately notify the coroner, or his deputy and a law enforcement agency, which must report to the scene within a reasonable time. KRS 72.020. No person shall remove the body or remove anything from the body until directed to do so by the coroner or his deputy, after the law enforcement agency is present or has failed, within a reasonable period of time, to respond.
Where a person, dies, or is found dead in a hospital, and where the death is deemed by the attending medical doctor to not be a coroner's case, the medical certificate must be made and signed by the physician, if any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw the deceased alive, and the hour of the day at which death occurred. See KRS 213.080(2). He shall further state the cause of death, showing the course of disease or sequence of causes resulting in death, giving the primary cause and any contributing causes, and the duration of each. That subsection also provides that indefinite and unsatisfactory terms, indicating only symptoms of disease or conditions resulting from disease, will not be sufficient for issuing a burial or removal permit.
MEANING OF DEATH
In addition to your question, stated in your letter, as to "Who may pronounce a patient dead in a hospital?", you indicated by telephone on July 26, 1983, that you also request that we answer the question as to the criteria for death to be employed by the person making the pronouncement of death in your hospital. The inevitable relationship between the two questions is at once apparent. Further, our research indicates that the pronouncement of death can be validly made only where the proper criteria of death has been considered; and that the nature of death in such hospital context addresses that medical practice and medical science, as employed by medical doctors.
A dead body is the body of a human being deprived of life. 25A C.J.S., Dead Bodies, § 1, page 488. The word "death" is "defined as meaning the termination or cessation of life; the state or condition of being dead. Death is the antithesis of life, and it occurs precisely when life ceases. The word 'death' is not an ambiguous term." 25A C.J.S., Death, § 1, page 546.
The New Jersey Superior Court, in Matter of Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (1975), observed that just as the matter of the nature and extent of care and treatment of a patient and therefore the patient's removal from a respirator is a medical decision based upon ordinary practice, so, too, is the decision whether a patient is dead and by what medical criteria. The Supreme Court of New Jersey, 70 N.J. 10, 355 A.2d 647 (1976), stated, in a continuation of the Matter of Quinlan, that the patient's condition can be determined only by a physician. The court pointed out that the determination of the fact and time of death in past years of medical science was keyed to the action of the heart and blood circulation, in turn dependent upon pulmonary activity, and hence cessation of these functions spelled out the reality of death. The court held that where the guardian and family of Miss Quinlan and her attending physician and the hospital ethics committee agree that there is no reasonable possibility of Karen Quinlan's ever emerging from her present comatose condition to a cognitive, sapient state, the present life support system may be withdrawn and said action shall be without any civil or criminal liability therefor on the part of any participant, whether guardian, physician, hospital or others.
A common law definition of death was "cessation of life. " Bouvier's Law Dictionary (Rawle's ed.) p. 775 (1914). This definition of "death" is found in Black's Law Dictionary, p. 488: "The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc."
The Supreme Court of Colorado, in Lovato v. District Court in & For Tenth Jud., Colo., 601 P.2d 1072 (1979) 1081, adopted the provisions of a proposed uniform act:
"For legal and medical purposes, an individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem, is dead. A determination under this section must be made in accordance with reasonable medical standards."
In Lovato, above, the Harvard Medical School Committee identified three basic criteria to determine the existence of a permanently nonfunctioning brain. In summary they are:
"* * * (1) unreceptivity and unresponsivity to even the most intensely painful stimuli; (2) no spontaneous movements or spontaneous breathing for at least one hour (this could be established when a person is on a mechanical respirator by turning off the respirator for three minutes and observing whether there was any effort to breathe spontaneously); (3) no reflexes, as shown by no ocular movement, no blinking, no swallowing, and fixed and dilated pupils. The report recommended a fourth criterion to be used only as a confirming test: flat EEG's taken twice with at least a 24 hour intervening period, using a machine properly functioning and properly applied, coincident with the absence of hypothermia and central nervous system depressants, such as barbiturates."
In Swafford v. State, Ind., 421 N.E.2d 596 (1981), in connection with a homicide case, a neurological surgeon formally declared a patient dead. The immediate cause of death listed on the certificate of death was "brain death" , attributed to a gunshot wound. At the time the patient was formally declared dead and the certificate issued, his heartbeat and respiration, sustained by the mechanical venilator, continued. The Supreme Court of Indiana noted that Indiana has never adopted a legal definition of "death", either by statute or decree. The court pointed out that only in the last two decades has the state of medical science and technology evolved to the point where a patient's heartbeat and respiration may be mechanically sustained, even though the patient has suffered an irreversible loss of all brain functions. The court stated that the concept of "brain death" has gained virtually universal acceptance in the medical profession. Brain death generally describes, the court wrote, permanent cessation of all brain functions; unless sustained by mechanical support, cessation of somatic functions follows invariably from this condition, for one function of the brain and its stem is the control of vital activities such as heartbeat and respiration. The Indiana Supreme Court noted that twenty-eight states, either by statute or judicial fiat, have adopted "brain death" definitions to supplement the traditional medical standards by which death is determined. The court cited the definition of brain death as contained in the Fifth Edition of Black's Law Dictionary (5th ed. 1979), p. 170:
"Characteristics of brain death consist of: (1) unreceptivity and unresponsiveness to externally applied stimuli and internal needs; (2) no spontaneous movements or breathing; (3) no reflex activity; and (4) a flat electroencephalograph reading after 24 hour period of observation."
The Supreme Court of Indiana in Swafford v. State held that, for purposes of the law of homicide, proof of death of the victim may be established by proof of the irreversible cessation of the victim's total brain functions. Thus the court held that, for purposes of the law of homicide, an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of total brain functions, is dead. A determination of death must be made in accordance with accepted medical standards.
The Supreme Court of Washington, in In Re Welfare of Bowman, Wash., 617 P.2d 731 (1980), specifically, where there was no Washington statute defining death, adopted the Uniform Determination of Death Act (Aug. 7, 1980 recommendation): An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.
The Court in Petition of Jones, Sup., 433 N.Y.S.2d 984 (1980), observed that basically, when a patient is dead is a medical matter which should be left to the expertise of the medical profession.
For a scholarly discussion of standards for determining human death, see 121 Pennsylvania Law Review 87, including a discussion of the Harvard Medical School Committee criteria as to the existence of a permanently nonfunctioning brain.
We shall not deal herein with the liability of a hospital for giving notice or causing notice to be given of a patient's death, when in fact the patient had not died. However, see the annotation on that subject in 77 ALR 3d 501. It does point up the legal responsibility for giving an erroneous notification of death; and it indeed highlights the practical necessity for leaving the determination of death to the attending physician or surgeon, or other physician using accepted medical practice.
CONCLUSION
It is our opinion as follows:
(1) The matter of the criteria for determining "death" occurring in a hospital is a definitional void. The Kentucky statutes do not define "death". The judicial definition is non-existent, except for two Kentucky cases. In the case of M'Daniel's Will, 2 J.J. Marshall (1829) 331, 338, the court wrote that "The destruction of the senses is death." There M'Daniel acknowledged his will while suffering from a paralytic stroke.
In Gugel's Adm'r v. Orth's Ex'r, 314 Ky. 591, 236 S.W.2d 460 (1951), in a mutual wills case, the court noted that physicians testifying in the case established the point that "A person is dead at the moment heart action, respiration and action of the central nervous system jointly cease." In the companion case of Gray v. Sawyer, Ky., 247 S.W.2d 496 (1952), involving the Gugel deaths, the doctors told the court that a body is not dead so long as there is a heart beat and that may be evidenced by the gushing of blood in spurts. The court wrote: "This is so though the brain may have quit functioning. " However, none of the Kentucky cases stand on the premise that the court made deliberate and analytic holdings as to the definition of death. Thus we have no clear view precisely of how the Kentucky courts would define death under this definitional void. In the meantime, licensed Kentucky medical doctors will necessarily use those death criteria considered to be authorized under accepted medical practice in Kentucky.
(2) There is no Kentucky statutory or judicial treatment of the matter of who pronounces death in a Kentucky hospital. However, cases in other jurisdictions suggest that historically the pronouncement of death, just as is true in the performing of medical evaluation, diagnosis and treatment of patients in a hospital, is a part and parcel of the usual and accepted medical practice of physicians and surgeons. See KRS 311.550(8) (practice of medicine). See also KRS 311.597, relating to medical ethics on the part of licensed physicians and surgeons. In this statutory and judicial void, the conservative practice, until the legislature or courts intervene, would be that the pronouncement of death should be the responsibility of the physician or surgeon last in attendance upon the deceased (this could include a hospital emergency room physician, where he is last in attendance upon the deceased or some other licensed physician present in the hospital who can evaluate the death of the patient) . Such a physician or surgeon, as we understand usual medical practice, is the only one authorized to take the first action, as relates to the patient or patient's body, inconsistent with life (removal of life supports, etc.). See also 201 KAR 9:015 (professional and ethical conduct of physicians).
(3) The statutory treatment of the issuance of death certificates indicates that the General Assembly had in mind the issuance by the physician last in attendance upon the deceased, i.e., where no coroner's case is involved. It seems quite logical to reason that the physician who is qualified under the statutes to issue the death certificate is the physician who could beforehand make the pronouncement of death prior to such issuance of the death certificate.