Dr. Robert Truog - Defining Death: Scientific, Legal, and Cultural Complexity

All right, good morning, everyone. Welcome to Combined Grand Rounds for the Departments of Anacisiology, Critical Care and Pain Medicine and Surgery. It is my great pleasure to introduce our speaker today, Dr. Robert Trube. Dr. Trube is the Francis Glastner-Least Distinguished Professor of Anacisiology, Pediatrics and Bioethics at Harvard Medical School. Dr. Trube received his medical degree from UCLA and he has been fort certified in the practices of pediatrics, anesthesiology and pediatric critical care medicine. He also holds a master's degree in Philosophy from Brown University. Dr. Trube recently stepped down from his role as director for the Center of Bioethics at Harvard Medical School, which he held for nearly a decade. He has served as chair of the Harvard Human Subjects Research Committee and currently chairs Harvard University's embryonic stem cell research oversight committee. Dr. Trube also practices pediatric intensive care here at Boston Children's Hospital, which is where he has served for more than 30 years, including a decade as chief of division of critical care medicine. Dr. Trube has published more than 300 articles in bioethics and related disciplines. Much of his scholarship has focused on the ethical and scientific challenges surrounding the definition of death and practices of an organ procurement and transplantation. He lectures widely nationally and internationally and he's an active member of numerous committees and advisory boards and has received several awards over the years. We are especially fortunate to have him speak to us today. Please help me give him a warm welcome. Thank you, Dr. Trube. Dr. Trube. Dr. Trube. Dr. Trube. Dr. Trube. Dr. Trube. Dr. Trube. Thanks very much. I'm always a little nervous when I give a talk, but when I look out and see so many people that I've been friends with and worked with for more than several decades, it pervups the ante a little bit. So, thank you for coming out this morning and I hope you find the talk interesting. So, let's dive right in. Do chapter one here? What is death? You know, we all have a very intuitive understanding of what death is. When I show you this painting from Rembrandt, the anatomy lesson, and you look at that, it's I think intuitively obvious immediately that that poor guy on this lab there is dead. And if I were to ask you, well, you know, how do you know, you'd immediately be able to come up with a half a dozen reasons why. From a scientific point of view, I think it's very helpful to think of life in terms of these thermodynamic principles and the concept of homeostasis, which was developed here by Harvard Medical School by Walter Cannon in the 1920s. We think about life in these terms. You've got these two forces. You've got intropic forces, which are tending towards disintegration. And then you've got these ATP energy consuming homeostatic forces, which are holding our bodies together. And when these two are in balance, we would say that a person is alive. And when the intropic forces overtake the homeostatic forces, that's when death occurs. And this is kind of an understanding of life and death that goes across the entire biological spectrum. So, you know, it would apply to bacteria and amoeba to plants and insects, animals, people. It's a very broad and encompassing way of thinking about life and death. So when did the definition of death become complicated? And I will suggest to you that it happened in 1967. And more specifically, on December 2nd of 1967. Anybody have any idea what might have happened on that date that might be relevant to this conversation? Well, where was that? Ah, of course you know. Yes, there were a number of things happening at the end of 1967. There was a space race going on, but there was another race. And now was the race to do the first human heart transplant. And there were two leading candidates at the time, Norman Shumway, at Stanford, and Christian Bernard at Root Shure Hospital in Cape Town. I don't see Craig Lilahai here, but I should note that Christian Bernard studied for many years under Craig's father, Walt Lilahai, the University of Minnesota, and indeed without Dr. Lilahai's contributions. None of this would have been happening at this time. He was really the early pioneer in all of these things. But both of these teams at Stanford and Root Shure felt that they were ready to do the first heart transplant. They mastered the surgical techniques. They knew the biology, the pharmacology, the physiology. They had plenty of potential recipients, people who were literally dying for a heart. What they didn't have was a donor. Now what they were looking for in a donor was someone who was young and healthy and who had just had a severe traumatic brain injury. And so day by day, they were sitting in their offices waiting, they were monitoring the police scanners. They had made arrangements with the various ambulance companies that if a potential person should come along that fit that description, the ambulance would bring them to their hospital. Apparently, Norm Shumway even had a note on the back of his office door which said where there's death, there's hope, typical surgical humor kind of thing. And so they waited day by day. Bernard probably had a little bit of an advantage here since the streets of Cape Town were far more treacherous than the streets of Palo Alto. And indeed, he was the one that won this rather bizarre race. And on December 2, 1967, this woman Denise Starball, 25 years old, was struck by a truck in Cape Town with her mother. Her mother was killed instantly. She was brought by arrangement to Grootshire Hospital. First in Bernard went down to the emergency room to meet her father who just lost his wife and said, you know, sadly your daughter has a non-survivable brain injury and would you give permission for her to be the first heart donor. And her father said, let me think about it. And as the story goes, came back four minutes later and said, yes, I do. And so that evening, the first heart transplant was performed and her heart was donated to 55-year-old Louis Waschkanski, a Grootshire. And that was history. Now turned out that Shumway was able to do the first heart transplant in North America just a couple of weeks later. But there's a big difference between being number one and number two. And it was Bernard who got all of the credit cover of Time Magazine meeting the Pope the whole thing. So obviously this was a momentous event in medical history. But I think that it may have been even more significant for the question that this raised. The question being, was Denise Starval dead at the time that her heart was removed or did Christian Bernard cause her death by removal of the heart? And let's told what to do here when it happens. Okay. And the reason why this question is so important is because of something called the dead donor rule. Now this isn't an actual law that's written down anywhere. But it's sort of a fundamental ethical principle that underlies all of our practices around organ procurement and transplantation. And there's a couple different ways of putting it. One that vital organs for transplantation may only be procured from patients who are dead. And the other way of putting it is that physicians may not cause death when procuring vital organs for transplantation. And this leads, I would say, to what I would call the central challenge of organ transplantation, which is the need to obtain living organs from people who have been determined to be dead. All right. And the issue is if this is your picture of death, then you can forget about doing organ transplantation, right? Because when bodies look like this, the organs are just as dead as the person is. This is not going to lead to the potential for organ transplantation. And so we've got this challenge of how to obtain living organs from people who have been determined to be dead. Whereas it was perhaps more pithily put in a quote from the book The Princess Bride, where a miracle max says there's a big difference between mostly dead and all dead. Mostly dead is slightly alive. Now in December of 1967, Henry Beacher was a young anesthesiologist at Massachusetts General Hospital. He was going to go on to do great things. He's been called the father of modern anesthesiology. He's been called the father of bioethics. And he immediately recognized that this question about whether Denise Darval was dead at the time the heart removed was going to be absolutely critical to moving forward the field of organ transplantation. And literally within days of that first transplant, he went to the dean of Harvard Medical School and he said, we need to form a committee to look at this. I'll be the chair. And the dean agreed they got together. It was a remarkable committee. It included Joe Murray who won the Nobel Prize for doing the first kidney transplant ever at Mendelssohn, who is a Harvard historian. He was the last surviving member of this committee. He lived just a few blocks away from me in Cambridge until just a few months ago when he passed away. But within a very short period of time, just a few months, they published this landmark paper in JAMA. I want you to notice the title is a definition of irreversible coma. It doesn't say anything about death, does it? It's only down in the subtitle that they talk about possibly this being a new way of thinking about how we define death. And this was really the beginning of this discussion, 1968, the discussion about the concept of brain death. And as we go into the 1970s, there were some states that adopted brain death into their laws, others did not. So it was an awkward situation where you could be alive in one state and dead in another. And so toward the end of the 1970s, a group got involved called the Uniform Law Commission. And this is a group of lawyers and judges. There's one representative from every state. And what they do is they get together in situations where states are at risk of making laws that conflict with each other and they develop model legislation that they hope all of the states will adopt. And so that's what they did for the definition of death. And this is what they come up with. An individual who was sustained either, irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem is dead. And that's pretty much it. It's going to be one of the shortest laws that's ever been written. And so that is the law that we have had that governs how we determine whether somebody is dead. So let me enter chapter two here and talk about the three pathways for determining death for organ donation that correspond to these two ways that you can be dead. One based on the loss of circulatory function, one based on the loss of neurological function. And here are the three pathways. So neurological death, we call donation after brain death. And then donation after circulatory death or DCD comes in two flavors, standard DCD, which is what we do here. And then a new emerging technique called normal thermo-regional perfusion or NRP. So let's talk a little bit about brain death first. What is brain death? So brain death is a severe neurological injury that leaves the patient in the state of irreversible, apnic unconsciousness. Irreversible in the sense that there's evidence of severe and irreversible injury by history and imaging, by ruling out potentially reversible causes like hypothermia and sedative drugs. We show the patient has lost the capacity for spontaneous respiration by doing the apnea test, demonstrating that the brain does not trigger respiratory efforts even when exposed to high levels of carbon dioxide. And we show that the patient is unconscious by physical exam showing that they're unreceptive and unresponsive and also by showing the absence of brainstem reflexes. Now why brainstem reflexes? You can live a perfectly normal life if your pupils don't react to light. I mean, they don't really relate to life and death directly. But the reason we do those tests is because of a neural network in the brain known as the particular activating system or the RAS. And this network is responsible for you being awake. Now we can't test the function of the RAS directly. But that section of the brainstem is also where all of these brainstem nuclei are at. They're all kind of mixed together in this very small area. And if we can show that the brainstem nuclei are not functioning by testing for these brainstem reflexes, then we infer that the RAS is not functioning. And if the RAS is not functioning, you cannot be awake. And if you cannot be awake, you cannot be conscious. So that's sort of the significance of the very detailed brainstem testing that we do. Brain-dead patients, as we know, are ideal organ donors. If the injury is isolated to the head or the brain, then all of the other organs are functional. The organs can be procured in a controlled surgical environment under optimal conditions with as many as eight organs coming from one donor. The problem has been, though, that brain-dead patients often don't look like they are dead. And families often struggle to accept that they're loved one is dead. You know, you can, for those of you who've been in the ICU, you know, you can stand at the bed, the end of the bed of a patient who's brain dead, and they'll look pretty much the same as somebody in the next bed space who's going to get better and walk out of the hospital. And that can be very difficult for families. And families ask us to explain how brain death relates to our common sense understanding of what death is and what we think death should look like. So what have we been trained to tell families under these circumstances? A lot of articles about this, we've been trained to say that brain death is not a new way of defining death, just a new way of determining death. And this was written about a couple of years ago by leading neurologists in this article, why brain death is considered death and why there should be no confusion. They wrote, once brain stem function is lost, blood pressure is unstable, relentlessly declining. Cardiac e-rhythmia is appear, support measures are complex often fail, and the ability to maintain a brain dead body is virtually impossible. What they're claiming here is an argument based on what we started with, this idea of life is homeostasis. And they're making the argument that the brain kind of functions as command central for the body, and that when the brain stops functioning, homeostasis is lost and the body disintegrates, just like it does after cardiac arrest. So they're creating this idea of equivalence between the loss of homeostasis with cardiac arrest and the loss of homeostasis with brain death. And it's a good story. The problem is, we now know it isn't true. And let me explain how we know that. Most of this comes from the work of Alan Schuman, retired neurologist from UCLA, my alma mater. And he has meticulously documented dozens of cases of prolonged biological survival after brain death, the longest one being a four-year-old boy who developed meningitis, was correctly diagnosed as being brain dead, but did not have the ventilator removed and was supported for 20 years on the ventilator fed with a feeding tube before he had a cardiac arrest. And when they did the autopsy, they found absolutely no neural tissue. Nothing but calcified remains, not a single neuron, grossly or microscopically. And it rather dramatically makes the point that the body does not need the brain in order to maintain homeostasis and biological survival. Now Schuman's work was known, but largely flew under the radar until the case of jahimic math, which I'll mention here. And the math case is important, not because it was unusual, because it wasn't that unusual. It was important because of social media that this just spread like crazy. Rue Facebook was picked up by all of the popular press articles, The New York Times, The New Yorker, The Atlantic, describing what happened with her. She was a 13-year-old who was determined to be brain dead, following a post-operative hemorrhage from a TNA at Oakland Children's Hospital. Her family rejected the diagnosis, sought legal intervention, and she was transferred to New Jersey, the only state that permits patients and families to opt out of the determination of brain death. She remained biologically alive for almost five years. Interestingly, that was not in the ICU. Almost all of that care was at home, occasional hospitalizations for her. She required mechanical ventilation and feedings through a G2, but that was all. And during that time, her body continued to grow and develop, and she went through puberty. Almost five years later, she developed liver failure from unrelated causes. Her family declined further interventions, and she died in the usual way. On June 22, 2018, and to this day, she continues to have two valid death certificates. California, she died in 2013 when the form for brain death was completed. And New Jersey says she died in 2018 when she had a cardiac arrest. And what, one of the takeaways, I think, for the McNath case is that brain dead patients can really do pretty much everything that you and I can do with two exceptions. They're never going to wake up, and they're never going to breathe on their own again. But they pretty much do everything else. They can absorb nutrition, they excrete waste, they heal wounds, they fight infections, they can mature sexually, and for adult women, they can deliver babies. So it's just kind of like what the diagnosis actually means. Well, following the McNath case and the wide publicity it received, many more families began to reject the diagnosis of brain death and to fight the diagnosis in court. I'm sure there's not a large children's hospital in the country that hasn't had these cases. We've had several here, as most of you know. Why children? Well, just because children tend not to have the other comorbidities that adults have. And so they're more likely to have this prolonged survival after the diagnosis of brain death if they're continued on mechanical ventilation and with nutrition. So with all of these objections arising to brain death, the Uniform Law Commission decided, maybe it's time we got back together again and looked at the brain death law, the uniform determination of death, I can see if we can revise it in a way that would address some of these problems. And so the commission met for three years from 2021 to 2023. And I was a consultant to the commission. And I could tell early on, things were not going well. There was not a lot of consensus being developed. And so early in 2023, I wrote this article in JAMA, sort of raising concerns about the uncertain future of brain death in particular. And then last September, all of us involved received this email from the leadership. We have decided to pause the revised UDDA effort. The result of this pause is that although we will continue to hope mid-level principles will become apparent, no further drafting committee meetings will be scheduled at this time. So the efforts were abandoned. And then a couple of months ago, I wrote this article in JAMA. Basically going over what the problems were, the various solutions that were proposed. That would be a talk in itself. Let me just emphasize what I think was the really hardest sticking point. And it had to do with the significance of prolonged biological survival following the diagnosis of brain death. And this was raised most prominently by James Bop. He was one of the commissioners. He's a very prominent lawyer in Indiana. He's a chair of the National Committee for Protection of Human Rights. He was also the sort of the architect behind the series of cases that were brought to the courts around abortion, ultimately leading to the DOBS decision. So a very conservative, very prominent well-known attorney. And his view was he said, look at behind that math. It's obvious that she was not dead. And he argued that brain dead patients are still alive, certainly very severely brain injured. But he framed it in terms of a disability rights perspective, saying that they are deserving of the same legal protections as other patients with severe neurological injury. And in his view, controversies about brain death and abortion are to quote him. An identical debate just in a different context. So you can see why there was really no hope of reaching any sort of consensus when this was, if you not only of him, but of you shared by a number of the commissioners. So where do we go from here? Overall, the public does generally support the concept of brain death. But many questions remain. And I want to point out that all of these questions are really to be resolved at the state level. So it's consent necessary before testing for brain death. Can families refuse to accept the diagnosis of brain death? Do institutions have an obligation to care for patients with this diagnosis? Will insurance companies cover the care of these patients? Is home care an option? And then there's concerns that we could have an outcome similar to the DOBS case. What's happened to abortion after DOBS, as you know, is that states now have adopted various laws all the way from very conservative to quite liberal. And the same thing could happen around the determination of brain death with inconsistent state laws leading to significant state variation. We'd go back to the 1970s where patients could be considered alive in one state and dead in another. You can imagine the impact on organ procurement and transplantation across state lines. What if, you know, for example, Alabama does not recognize brain death? Would this mean that patients in Alabama shouldn't be eligible to receive organs from Massachusetts? You can imagine the chaos that might and may still evolve. But the commissioners thought that it was better to leave the law with all of its flaws alone than to open it up to possible revisions that could make things even worse than they already are. All right, that's what I had to say about brain death. I'll be brief here in talking about a DCD donation after circulatory death, which I'll start with standard DCD, which is what we do here. So in standard DCD, the patient is in an ICU terminal Yale on ventilator support. A decision is made to withdraw the ventilator with death being both inevitable and imminent. The patient or the surrogate has given authorization to be an organ donor. The patient is taken to an operating room. Typically, as here, the family goes down with the patient and the ventilator is withdrawn. Settatives in the analgesics are given just as they would in the ICU setting, but only as much as is necessary to ensure the patient's comfort. If and when the patient becomes pulseless, a five minute hands-off period begins to observe for auto resuscitation or the heart restarting on its own. And I say if, because we just had a case short while ago where the patient did not become pulseless and transplantation was abandoned and returned to the ICU for end of life care. But if the patient does become pulseless, stopwatch is started, and after five minutes death is declared, the patient is taken to another room and organ procurement begins. The organs are rapidly removed and placed on perfusion pumps or cooled before transport and transplantation. Now typically, the patient must die within roughly about two hours after ventilator withdrawal. Because during that time, the patient is becoming progressively more hypoxic. The organs are beginning to undergo injury and it depends on the organs. Kidneys are more resilient than livers, for example. But generally, two hours or so depending on the organ is about as long as we can wait. The idea being that a lingering death renders the organs unusable. Why do we wait five minutes? We wait five minutes because we know that auto resuscitation is very rare after five minutes. However, many patients could still be resuscitated at that time. It happens all the time. I mean after five minutes of pulselessness, resuscitation is not unusual, even with good neurological outcome in a number of cases. So at five minutes, pulselessness has not become irreversible, which is required by the law, which requires the irreversible loss of circulatory function. We do argue, however, that since these patients have a DNR order that is a requirement, resuscitation will not be attempted. And if resuscitation won't be attempted and the heart won't restart again on its own, then the loss of circulatory function will become irreversible. It's just not that case at five minutes. Despite this legal ambiguity, however, the practice of DCD is widely accepted in the US. Now let me talk about a new form of organ procurement called normal thermo-regional perfusion. I'm on the ethics committee for UNOS, the United Network for Organ Sharing, and this has been the focus of our work over the last year. It's been developing a white paper on this. So normal thermo-regional perfusion is identical to standard DCD up until the end of the five minute hands-off period. Then instead of removing the organs as quickly as possible, the chest is open and the arteries supplying the brain are clamped. The patient is quickly placed on ECMO, reestablishing circulation below the neck. Ideally, then, function is restored to all of the vital organs except the brain. And ideally, once you get the patient on ECMO, the heart starts to pump again, recovers function. And in most cases, then you can wean the patient off of ECMO. And now you've got something that's very similar to a brain-dead organ donor. You've got a pumping heart. You've got kidneys that are making urine. The liver is making bile. A lot of advantages. There's no rush to get the organs out. You know, let's say that the heart's not pumping all that well at the beginning. You can watch it, resuscitate it, 30 minutes an hour or two hours, see how it's doing. Maybe it improves enough that it could become transplantable, et cetera. So there's all sorts of ways that NRP has become very attractive to transplantation physicians. It has at least two, though, pretty serious ethical and legal challenges. The first related to restoration of circulation and the second to occlusion of the cerebral arteries. The first. Remember that the determination of death is based on the irreversible cessation of circulatory function. Okay. So the patient is declared dead at five minutes on the basis of loss of circulatory function. But as soon as they're declared dead, circulatory function is restored with ECMO. And does this reverse or invalidate the determination of death? So, Lossman written about this. I'll note that Alex Glager, who is the president and CEO of New England Donor Services, our, our OPO, has publicly written that she thinks that the determination of death has been invalidated and that this method of procurement is illegal. She's also a lawyer. The second objection has to do with occlusion of the cerebral artery. So the first thing that happens is that there's clamps put on the major vessels to the brain. So it should be the objection. If the patient is truly dead at five minutes, why do you need to clamp the cerebral arteries? I mean, the dead person that shouldn't be necessary, right? But if the person is not dead, then does this procedure actually kill the patient in violation of the dead donor role? So these are the two major objections that are being raised. All right. So the three pathways for determining death for organ donation all seem to have serious problems with regard to both the UDDA and the dead donor role. And just to summarize, for brain death, brain deaths is not necessarily caused the loss of homeostasis. Some patients can quote unquote live biologically for years. In standard DCD cessation of circulation is not irreversible after the five minute period. And in normal thermo-regional perfusion, if the criterion by which death was determined has been reversed, then one could argue that death has been caused by the surgeon. All three methods arguably violate both the dead donor role and the UDDA efforts by the uniform law commission to fix these problems have failed. Does this mean that these three methods of procuring organs are not ethical or legal? And as I move into the last part of my talk here, I'd like to say not necessarily. Let me give you, hopefully, an alternative way of framing some of this. So let's look at what might be called the first command of medical ethics. The argument that for the principal, I suppose, doctors must not kill doctors must not kill. I do think it's a good first principle. You know, you think about situations like the Nazi doctors or the atrocities that are performed by physicians at various times around the world. I think it's a very good first principle, but I think it is more complex and nuanced than it may appear going forward. I think talking in terms of physicians causing death, not killing because the word killing is a complex word which necessarily sort of implies that there is something that is morally or legally wrong about it, whereas causing death is more neutral and we can look at situations where it might be acceptable or unacceptable. I want to say that doctors do currently cause death in at least several ways. And I'll give you three examples of this. So let's go back to the 1970s. At that time, withdrawal of a ventilator or other life support was considered a killing. And the landmark case here was that of Karen Ann Quinlan, 1975. This was a 21-year-old woman who went into an irreversible coma following a drug overdose. She was on a ventilator and her parents who were devout Catholics went with their priest to the doctors and said, you know, under Catholic theology, she is being kept alive by extraordinary means, which is not required by the Catholic Church. We want the ventilator to be removed and allow her to die. She's never going to wake up. We want to allow her to die. The physicians said absolutely not. You know, if I go into that room and remove the endotracheal tube, I am going to be the person who is the direct cause of her death. That's against chippocratic principles and it could land me in jail. So it goes to the court and the court says we believe that the ensuing death would not be homicide, but rather expiration from existing natural causes. Okay. And so this changed and it was a landmark case for how we do intensive care today, where, as you know, the withdrawal of life support is actually the most common way in which people die in the ICU today. And so what was prohibited in 1975 has become standard practice today. Second example I'll give is from the 1990s when clinicians were reluctant to aggressively treat pain and dying patients, prefer of being charged with a homicide. And I remember a number of cases, mostly from the 1980s, of reports of people dying very painfully from cancer and physicians saying, you know, I'm sorry, but I'm not going to give more than just standard doses of morphine here because I don't want anyone thinking that I was the one who killed this patient. And that went to the Supreme Court and in a decision by then Chief Justice William Reinhwest, he wrote it is widely recognized that the provision of pain medication is ethically and professionally acceptable, even when the treatment may hasten the patient's death. If the medication is intended to alleviate pain and severe discomfort, not to cause death. And saying to doctors, look at the question is not primarily whether you might be playing a causal role in this person's death. That is not the most important factor either ethically or legally. And you know, there's been wide support for this among both Jury's and judges. I'll give you a case from 2019. This is William Hughes. He was an intensiveist in Columbus, Ohio and faced 25 counts of murder for the doses of fentanyl that he gave to patients in his ICU around the withdrawal of life support. I reviewed a number of these cases for the court and I can tell you he gave very large doses of fentanyl, probably enough that it would have caused these patients death, even if they hadn't had underlying diseases. And yet despite that, he was acquitted on all counts. And I don't know this for sure, but I'm not aware of any cases in which a physician has been held liable for the administration of medications at the end of life. I think that, you know, widely Jury's judges and the public don't want physicians to be in inhibited from giving what patients need in order to be comfortable, even if the doses may at times seem to be excessive. And then the third example I'll give you about the doctor's role in causing death is what's going on really now, the increasing acceptance of doctors facilitating or directly causing death. And here I mentioned two, physician aid and dying and its rapid growth in the United States. You probably know physician aid and dying involves a physician prescribing a lethal dose of a medication, usually a barbiturate to a dying patient or a patient who wants to die. The patient must be able to voluntarily swallow the medication on their own. And currently physician aid and dying is available to about 20% of the US population, but it's growing rapidly. It's been, if you know, this was on our ballot in Massachusetts a number of years ago, it lost very narrowly 51 to 49%. It's back on the docket this year in the Massachusetts legislature. And I think it's quite likely that we are going to have legal physician aid and dying by the end of this year. Canada has taken this to another level in Canada, euthanasia is now legal. This is where the physician administers the lethal dose. This is the recommended cocktail 10 milligrams of medazolam, a thousand milligrams of propyl and 200 milligrams of rock uranium. Now you may say what anesthesiologist is willing to do that? Well, in fact, it's not mostly anesthesiologists. 68% is given by primary care physicians. Anesthesiologists are involved only in about 5% of the cases, but it's becoming very popular in Canada as of a couple of years ago, more than 10,000 deaths per year. And the trend is is steeply upward. They've recently removed the requirement that the patient have a terminal illness. And now there's discussion about making this available for people with mental illness as well. All right. So, what I'm trying to make the point here is that yes, we have first command and medical ethics. Doctors must not kill. But I'm saying it's more complex than it appears. Doctors are already very involved in issues related to causing death in ways that we would largely see as not violating either ethical or legal standards. So is there a way forward? The dead donor rule requires that patients must be unequivocally dead before their organs are removed. And that doctors must do nothing that impacts the manner or accelerates the timing of the patient's death. But as I've argued here, all three methods of organ procurement that we use and especially NRP are arguably in the gray zone or even beyond that. And these were issues that the Uniform Law Commission pride but failed to resolve. I'd like to ask you to consider what I will call an all things considered view of organ procurement. And here I'm not talking about the NPR all things considered kind of thing. I'm talking about more of a ethical conceptual view, which looks not at just a specific principle like the dead donor rule, but kind of an all things considered anything that might be relevant to the question. And I'm talking about it this way, all potential organ donors are either imminently dying or irreversibly unconscious. These are not healthy people. Many and perhaps most people would agree that in these circumstances, their death would not be a harm to them, regardless of the dead donor rule. Furthermore, we have an opt-in donation system. Those who would think it's a harm to them, have the perfect right not to consent to being an organ donor. And we also have a desperate need for organs to give life and health to others. So I suggest that looking at it in this broader way, you could imagine that all of the ethical arrows, if you will, are sort of pointed in the same direction. This can look to be a good thing that we would like to find a way of doing so long as it's ethical and legal. Now you might say, well, but if organ procurement does not fully comply with our laws in the dead donor rule, then couldn't physicians be found legally liable for homicide. But I'd like to suggest I think that's very unlikely. You know, you go back to the Karen Ann Quinlan case and the decision there, the judge wrote, we believe first that the ensuing death would not be homicide. But rather expiration from that from existing natural causes. The next line was secondly, even if it were to be regarded this homicide, it would not be unlawful. So here the judge is saying, yeah, you know, maybe when you take away the ventilator, maybe you are causing the patient's death. But that doesn't matter. It doesn't make it unlawful in this judge's mind. Or going to Ryanquist again, right? He's saying it's ethically and professionally acceptable to give drugs at the end of life, even when you may be hastening the patient's death. Even when you may be playing a causative role, that's something that is not only permissible, but something you should be doing. So all three standard methods of work and procurement are, I think, not in compliance, full compliance with the dead donor rule or the UDDA. So in all things considered perspective, potential organ donors are all imminently dying or irreversibly unconscious. They have opted into being organ donors and organ transplantation saves lives and improves the lives of many thousands each year. So I wanted to preface this by saying this is my summary slides. Because I've covered a lot of material. This is what I would like you to take home. So this is number one. And then number two, although doctors must not kill, I think is a very important first principle. In reality, doctors already play a causative role in several areas of patient care, including withholding with Ryan life support, palliative care, and more recently in physician aid and dying. Judges and juries, and I think the public have consistently supported physicians in these practices and even required physicians to engage in these practices. And even while acknowledging that they may cause or hasten the death of patients. And so even though our current procurement practices may violate the dead donor rule and the UDDA, no court has ever found physicians liable for homicide. And I believe they will continue to support current practices of organ procurement with a little asterisk care. I'm not sure what's going to happen within RP. There's a lot of debate and disagreement about that. Maybe we could talk a little bit more about that. The very last thing I want to do is return to December 2nd, 1967. And what happened in that operating room? So, Marius Bernard was Christian Bernard's younger brother. The two of them were part of the surgery. They made a pact with each other that they weren't going to describe exactly what happened that night with the donor. It was more than 40 years before Marius disclosed what happened. So now we do know. And here's what it was. So, Christian Bernard had a pretty contentious relationship with his department chair. And the department chair said, look, I know you're going to do this transplant. But I want you to promise that you are not going to remove the donor's part until that part has stopped beating. And I'm going to insist that there is a coroner in the room to make sure that that happens. So, when they took Denise Starval into the operating room, they took her off the ventilator. And not surprisingly, she was breathing, continued to breathe, that was becoming hypoxic. And they were watching the minutes go by and purgate blue and blue, or they didn't have saturation machines at the time. And they got concerned. If this goes on too long, we're not going to be able to restart this part. And Marius, who was kind of a confident Christian, said, you know, at this point, we need to start to prioritize the recipient more than the donor. Now, they knew from the experiments they'd done on dogs that if you inject potassium into a heart, that you can get it to stop. But that once the potassium washes out, the heart will start again. And so, as Marius, many years later explained, he got a syringe of potassium chloride. Did a trans thoracic injection into Denise Starval's heart? The heart stopped. The coroner declared that she was dead, and they went ahead with the procurement. Now, was what they did illegal? Was what they did unethical? You know, I think looking at the history of organ procurement since then, I don't really know that we have the answers to those things. And I think here we are today more than 60 years later, I think still grappling with the very same questions that they were in 1967. So with that, I'll stop. And hope you found it interesting. Thank you, Dr. Truth, those an incredible talk. Does anyone have any questions? Hi, I'm Eliza, I'm one of the transplant logins. Thank you for the talk. Regarding NRP, you mentioned what our local OPO has described in terms of the efforts regarding that sort of wave procurement. Are you aware if there are any other OPO's nationally that either have disallowed it or thinking of disallowing it? And if that's the case, is there any discussion of how that may impact geographic disparities in access to care since theoretically rehabbing DCD's does open up a large number of possible donors that otherwise may not be feasible? So thanks, that's a great question and it's a complicated question. And what I've been a part of this committee now for over a year, and it is still unclear to me exactly who has the authority to say whether NRP is going to be acceptable or not. So you've got our 50-some OPO's who could come up with standards around it, but you've also got transplant centers. And transplant centers can make the decision on their own whether they're going to do NRP. So for example, a number in New York are doing that. I'm also on the New York State Task Force, which is trying to come up with policies for this. And it's super contentious because for the reason you point out, it's a fantastic way of procuring organs. It is standard in Spain right now. The United Kingdom has put a moratorium on it for concerns about it. It's illegal in all of Australia. It's highly contentious right now. And I don't even understand or know that there's any single organization that is going to be able to say we're going to do it or not. I have heard, parenthetically, that there have been transplant centers who have refused to accept organs that were not procured by NRP because they didn't want to accept an organ that was inferior to what was possible. So I think this is going to get messier before it gets cleaner. And I don't know which direction it's going to go. Bob, first let me reverse your introduction. You said it was privileged to speak before us, but it's a privilege to have you as a colleague over all these years. You've taught us so much. So I think that's a point of clarification and then a question for you to speculate on the point of clarification. If the revision of the UDDA could not go forward because there was real dissonance in your committee, does the existing 1980 principles as viewed by that committee, do they still stand? So, that is still our law. All of the imperfections are acknowledged. There was, you know, people who said we have to fix this because current practices are not in line with the law. But then when it became apparent that opening the law up to any changes could lead to much worse situations such as complete denial that branded patients are dead and therefore you're killing them when you remove their organs. So instead of we're just going to have to put a pause on this and live with the imperfect law we have, what I think, you know, as I tried to say at the end is, yes, what we do isn't in line with the law, but nobody is willing or has, and I don't think will say that our practices are, therefore shouldn't be done. Even though they clearly are not in line with the law. Now, can I ask you to speculate the way forward is you've written in the two jammer articles doesn't look clear. In your view, is it more likely that pediatrics and the, and the whole framework around which organ donation for children occurs? Is that going to ultimately have to be dependent on whatever clarity is evolved for the adult patient who can give their prior consent? Or in your view, should the pediatric community take the lead in trying to move this forward in some way? Because we, because the issues are peculiar, but we shouldn't be waiting for clarity amongst what will happen amongst adult patients. Well, if you're talking specifically about brain death, I think we're all on the same boat on that. I don't think anything's going to change with that Jeff. I think the discrepancies in the law are just going to be ignored. If you're talking about NRP, I don't know. I, I, I, I, I was going to be here with had a medical emergency, so he is not. He told me that you were not looking at NRP donation currently because pediatric patients have such a priority already that it's not necessary. And so I think we have the privilege in a way of being able to sort of see how this plays out in the adult world before making a decision about how we're going to proceed. First of all, let me double down on Dr. Burns comments about the privilege, which is our speaker, not just today, but over decades. And the things you've done for us and, and taught us and let us forward in. Grand scale like this in your public discourse and sometimes for privately is for is greatly appreciated. Dr. Kim was intended to be here and he is, as you pointed out, unable to be, but he is on zoom as he's sitting in a waiting room. And he texted me and he said, can you ask Dr. Trude, if you think there is an ethical difference between abdominal and thoracic NRP? Yeah, because of time I did not go into the distinction here. So let me put it this way. So with thoracic NRP, you, you, you include the descending aorta. And so you do not restore circulation to the heart and the lungs. And it has a lower risk of restoring circulation to the brain. Even, even, you know, with clamping of the arteries, there are concerns that there are collateral vessels off the vertebrals, et cetera, that could still be supplying the brain, even when these main vessels are clamped. That's less of a concern with abdominal NRP. So I think if what you're worried about is the patient having some inadvertent blood flow to the brain, I think limiting the procedure to just the abdominal organs is safer. But I don't think it avoids kind of the fundamental problem, which is that you have declared death on the basis of the loss of circulation. And as soon as death is declared, you have reversed that. You have restored circulation. Now proponents of NRP will say, well, you've only restored it regionally. You've only restored it to the abdomen. And I think that these are these are debates that are going to go on. I do think that there's going to be probably much greater acceptance of abdominal NRP, which will be great for kidneys and livers and small bowel. But where NRP really offers the biggest advantages is with is with hearts because that's where it's very difficult to procure hearts with standard DCD and this really transforms the field there. So I think this is a moving target very much so. You might extend restoration of circulation X vivo because there are now X vivo circuitry systems to to perfuse a liver after it's not even in the body. And might might that violate the law by irreversible profusion. So it takes a lot of time to extend X vivo profusion is sort of the main alternative to NRP, right? You get that you get the organ out and you profuse it. Many people have said the the event one of the advantages of NRP is that those profusion machines cost about $75,000 per shot. On the other hand, the cost of a heart transplantation is in the order of two to three million. So whether that's financially significant, I don't know. I see we're about out of time. I don't want to keep you from your other obligations. Well, then any other questions. Did you want to ask a question? Bob, thank you for your talk. I recently became aware that there is a practice in some adult hospitals where a patient is declared brain dead. And then rather than sending a team to procure the organs from that hospital, the brain dead patient is being transported to an ICU specifically to continue care. And to be present essentially at the time of the transplant and reduce the war muskemic time that they might undergo otherwise. And you know, we get requests probably a couple times a year for families to want to transfer a brain dead patient here, not for purposes of organ donation, but for second opinion, slightly different. But I wonder are any pediatric centers that you know of doing this and is this something you could foresee could become a practice in pediatrics? You know, moving donors to well, other hospitals is one thing moving them to actually the opioid self is something that is that is discussed for the procurement to to follow there. You know, I don't see anything fundamentally wrong about it. I think things that improve the efficiency of transplant all ought to be considered. What I would worry about there is the families. And you know, one of the one of the unique things about our organ procurement system is when you when you check that box on your driver's license, you basically turn over all decision making to the opioid. And it really does not have any legal standing to affect how the organs are procured. Now, the OPO's are very sensitive to this. They don't like to offend families, but when push comes to shove, they can do what they want. And so I do worry a little bit that if moving patients around is done and doesn't meet the families preferences or wishes. That that's something that I think they ought to go gently with, even if they have the authority to do so. Thank you, Bob. Thank you, Joe. Appreciate it. I can just one last question maybe. Understanding how dysfunctional our federal government is right now and how difficult these questions are. Is there any possibility in your mind that we could ever have a more national agreement on some of these definitions? And if so, would that come through legislation would it come to the courts? How would you imagine this being more uniform between states? So it's interesting you bring that up. One of the sort of leading legal scholars in this area has just written an article proposing that there that this become a federal law rather than something that is handled by each of the states individually. And there's a lot of legal repercussions of that. But I think that that could be a solution. However, for the same reason that we see divisions between the states, I worry that at this point in time, the federal government would have a difficult time reaching consensus on what that law should look like. But I think that is exactly what could be a solution to the broader problem of disagreement among the states. So good thinking. Thank you so much. All right. Okay.