who aren’t breathing on their own can still be organ donors, if they’ve made their wishes known. The hospital connects their families with the New England Organ Bank. After the decision is made to terminate life support, the ventilator is effectively turned off and the patient stops breathing. A countdown is started, and after five minutes the patient is declared dead, brought into an OR, and the organs are harvested. In Mr. Warren’s case, the viable organs would be liver and kidneys, possibly even his heart.” The doctor pauses. “For many families who are faced with this kind of no-win situation, knowing that their loved one can help save someone else’s life through organ donation is a great comfort.”
“Thank you, Dr. Saint-Clare,” Abby Lorenzo says. “Nothing further.”
I get up, ready to cross-examine the neurosurgeon. “Doctor,” I begin, “are you familiar with the case of Zack Dunlap?”
“I am.”
“You’re aware that Mr. Dunlap was in an ATV accident, declared to be brain-dead, and then spontaneously recovered, correct?”
“That’s what people think.”
“What do you mean by that?”
“The medical community believes that Mr. Dunlap was never actually brain-dead but misdiagnosed,” the doctor replies. “If he
“What about Terry Wallis?”
“Again, Mr. Wallis was diagnosed to be in a vegetative state for nearly two decades, but he wasn’t. He was in a minimally conscious state, which is quite different. Patients who are minimally conscious have some degree of awareness of self and environment but can’t communicate their thoughts and feelings. They may respond to painful stimuli, or follow a command, or cry at the sound of a loved one’s voice. Minimal consciousness can be a chronic condition, but there is a better chance of recovery than there is for someone in a vegetative state.”
“Is it possible that Mr. Wallis moved from a vegetative state to a minimally conscious state?”
“Yes. There’s a range of consciousness, from coma to vegetative state to minimally conscious state. Some patients move from one state to another.”
“So isn’t it possible that the same might happen to Mr. Warren?”
“Terry Wallis’s recovery was a remarkable and unexpected one, but his initial trauma was markedly different from Mr. Warren’s. He had a diffuse axonal injury, which occurs without intracranial pressure, and which doesn’t damage the neurons-just the axons. Your neurons are in your brain’s cortex. Then there’s gray matter. The axons go from there into the white matter. A head injury that leads to a DAI means that the cells in the gray matter are intact but aren’t connected to anything, because those connections-the axons-have been sheared away. It’s a very bad form of head trauma, but it’s one that spares the cells, the neurons. Mr. Wallis’s recovery came about through regrowth of the axons. Mr. Warren’s injury is caused not by severed axons but rather by damaged neurons. And unlike axons, once a neuron is destroyed, it can’t regenerate.”
For all of the other lucky individuals mentioned by Zirconia in her opening argument, Dr. Saint-Clare has a medical reason why recovery was possible. “So let me get this clear,” I recap. “Each of the people Ms. Notch mentioned recovered either because they were initially misdiagnosed or because their injuries were substantially different from what Mr. Warren suffered?”
“Exactly,” the neurosurgeon says. “No one is debating the fact that Mr. Warren’s EEG shows signs of activity. It’s possible he’s retained the same verbal and motor ability he used to have, in the frontal lobes of his brain. But with injuries to his brain stem, it doesn’t matter what happens in the frontal lobes. He can’t plug into it, so to speak.” Dr. Saint-Clare looks at the judge. “It’s a little like going on vacation and seeing your destination from a plane, when all of a sudden a tornado blocks your landing. You might still be able to see the most beautiful resort- with a gorgeous beach and five-star service-but there’s no way you’re going to get from where you are to where you want to visit.”
“Will Mr. Warren always be dependent on a ventilator for breathing and tubes for feeding?” I ask.
“In my opinion, yes.”
“Can you predict how long he’ll live if that treatment is continued?”
“Most patients with this sort of injury die within weeks or months of pneumonia or some other complication.” The doctor shakes his head. “All these machines, they really just prolong the dying process. We’re sustaining a life, but it’s not much of one.”
“Thank you,” I say. “Your witness.”
Zirconia Notch frowns at the neurosurgeon as she approaches. “Who’s paying for Mr. Warren’s care?”
“From what I understand, he does not have health insurance. He’s a guest of the state.”
“A guest who’s costing you approximately five thousand dollars per day, excluding doctor fees.”
“We don’t consider that when we’re providing health care-”
“Isn’t it true that your hospital lost two million dollars last year?”
“Yes…”
“So isn’t it possible that part of the hospital’s motivation to force a decision about Mr. Warren’s welfare is so that you can free up a bed for a
“That’s not my concern as a physician.”
“Doctor, you said that Mr. Warren is a candidate for donation after cardiac death?”
“That’s correct. A man in his physical condition would be an excellent donor.”
“Isn’t it true that a quarter of DCD cases don’t go according to plan?”
He nods. “Sometimes when the ventilator is turned off, the patient breathes sporadically on his own. If it doesn’t stop within an hour or so, the donation is called off and the patient is left to die.”
“Why is the donation called off?”
“Because the patient won’t have enough oxygen in his bloodstream to keep the organs viable, but he’ll have too much oxygen to lead to cardiac cessation-which is the criterion for death.”
“So,” Zirconia says, pursing her lips. “You basically wait for the heart to stop, and then count off five minutes, and then you harvest the organs?”
“That’s correct.”
“Have you ever heard of Dr. Robert Veatch?” she asks.
Dr. Saint-Clare clears his throat. “I have.”
“Isn’t Dr. Veatch a renowned medical ethics professor who questioned DCD?”
“Yes.”
“Can you summarize for the court what Dr. Veatch’s position is?”
Dr. Saint-Clare nods. “Dr. Veatch points out that a heart that stops can be started again-in fact, that’s exactly how a heart transplant is done. In his opinion the cessation of cardiac function and circulation is not irreversible in DCD patients-which means it doesn’t meet the accepted standard of determination of death.”
“So basically, you’re telling me that Mr. Warren can be declared dead once his heart stops. But it can then be donated to someone else… and start beating again.”
“That’s right.”
“Then isn’t it a little hasty to consider Mr. Warren dead in the first place, given that his heart technically could be defibrillated into action again while still inside his own body?”
“The circulatory determination of death is a standard medical practice in the developed world, Ms. Notch,” the doctor says. “The five-minute waiting time is meant to ensure that the heart doesn’t start beating again by itself, without medical intervention.”
Zirconia nods, but you can tell she’s not buying it. “Is Mr. Warren in any pain in his current condition?”
“No,” the doctor says. “He’s unconscious; he can’t feel anything. We’re doing our best to keep him comfortable.”
“So he’s not currently suffering?”
“No.”
“He’s not in distress?”
Dr. Saint-Clare shifts in his seat. “No.”
“And he could continue in this state, not suffering, for how long?”
