So, you are registered as an organ donor – are you brain dead or what?

David J. Barry – Barry Law, LLC – Overland Park, Kansas

One of the most important rights we enjoy is the right to control decisions regarding our health care. Under state law, we have the power to appoint a person we trust, called a health care agent, to make decisions regarding our health care if we are unable due to incapacity or disability. However, a recent case from Arizona suggests our family or health care agent can lose control over these decisions if we are a registered organ donor.

According to Life Legal Defense Foundation, Rueben Vati, a 26-year-old man who suffered drug overdose, was declared brain dead by HonorHealth John C. Lincoln Medical Center in Phoenix, Arizona on September 15, 2019. As soon as he was declared brain dead, the Donor Network claimed Vati’s organs because Vati had checked the organ donor box on his driver’s license. Vati’s family requested a second examination by an independent neurologist and an EEG. The hospital refused and removed Vati’s feeding tube.

The family sought judicial intervention and obtained a court order requiring the hospital to restore Vati’s nutrition. The Donor Network of America sued the family to take possession of Vati’s organs. Despite the objections of the family, the hospital and the Donor Network harvested Vati’s organs on September 27, 2019.

Was it unreasonable for Vati’s family to request a second opinion? Absolutely not, because doctors have misdiagnosed death. Generally, you’re considered dead when your doctor says you’re dead. There is no legal or medical standard for establishing death. This means death is subjective and not an exact science. Here are just a few examples of instances where medical professionals have erroneously declared a patient brain dead and recommended organ transplant:

  • In 2009, Colleen Burns (Syracuse, New York) woke up on an operating table as doctors were preparing to harvest her organs and send them to other patients awaiting transplant.
  • In 2008, four doctors declared Steven Thorpe (Britain) to be brain dead. Doctors advised his parents to start thinking about organ donation. However, his parents rejected advice to remove life support and requested additional medical opinions. A neurosurgeon found faint signs of brain activity. Two weeks later Thorpe woke from his coma and has enjoyed a full recovery.
  • In 2007, Zach Dunlap (Oklahoma City, Oklahoma) was diagnosed as brain dead after brain scans indicated “no activity at all.” As Dunlap was being prepared for organ harvesting, a cousin tested his reflexes indicating he was responsive. Dunlap has shown a remarkable recovery.

Organ Donation and Organ Transplant is a multi-million-dollar industry where hospitals, doctors and networks profit from organ donation. It is concerning that the hospital and Donor Network would not work with the family to ensure there was no hope of recovery for Reuben Vati.

The Vati case raises an important question for each of us to consider. If we want to be an organ donor, how can we ensure our health care agent has control over decisions regarding our life and death? If we are a registered organ donor and a doctor declares us to be brain dead, have we surrendered control of health care decisions?

The answers to these questions may turn on whether you have signed a donor card or participate in a donor registry and how your advance directives and health care powers of attorney are prepared. A carefully drafted health care power of attorney may be the best solution to ensuring your health care agent maintains control over your life and death while honoring your wishes regarding organ donation.

Barry Law, LLC is a law firm in Overland Park, Kansas focusing on Estate Planning and Elder Law.

David J. Barry

[email protected]