Disabled 8 year-old's death by organ donation is being investigated.

This article was published by the disability rights group, Not Dead Yet on June 15, 2017

Stephen Drake

By Stephen Drake

The LA Times is reporting that the death of a disabled 8-year-old boy in 2013 is currently under investigation by Los Angeles police and the DA office.

Back in 2013, Cole Hartman’s father found his son with his head submerged in their washing machine. Cole went into cardiac arrest, but paramedics were able to resuscitate him.

From the story:

Physicians at UCLA’s pediatric intensive care unit told Cole’s family that the child was not brain-dead but “would never recover normal neuro function and … could never awaken,” according to an entry in his medical chart. 

The Hartmans decided to take Cole off life support and donate his organs. He was removed from the ventilator and, 23 minutes later with his family at his bedside, pronounced dead by an anesthesiologist.

Before getting into why there’s an investigation into Cole’s death – and why it’s happening four years after his death – here’s some info on Donation after Cardiac Death (DCD), and what we call “rush to judgment.”

First, there are long established protocols regarding waiting times for recovery in brain injury cases, as were shared in this blog post:

I recently attended a medical ethics seminar held at the Rehabilitation Institute of Chicago that reaffirmed medical practice guidelines about brain injury. Doctors continue to agree that it is necessary to wait before they can predict brain injury outcomes with reasonable, though they also admit not total, certainty. For traumatic brain injury (e.g. car accidents), the waiting period is one year. For anoxic brain injury (e.g. stroke or heart attack), it’s three months.

And, experts say that children are more likely to recover from brain injury than adults, as discussed by doctors regarding the “end of life” case of Haleigh Poutre. Here are excerpts from a story by Joe Shapiro after 11-year-old Haleigh Poutre’s brush with an “end of life” judgment:

Dr. JANE O’BRIEN (Chief Medical Director, Franciscan Hospital for Children): Children’s brains are amazing. They are very plastic. There is often a lot of potential to reach levels that nobody expects. 

SHAPIRO: There are 39 children living on the inpatient unit. They’re kids but with a difference. Most depend upon some piece of technology. 

Dr. O’BRIEN: Many of them would have tracheostomy tubes or tubes that they need in order to breath. They might be attached to ventilators. Many of them rely on feeding tubes into their stomachs in order to get the nutrition that they need. 

SHAPIRO: Typically, a child stays at the hospital for about three months. 

Dr. O’BRIEN: People hear about children when they have accidents at the time because that’s often the newsworthy story. But most of the children who come into our hospital, go back out into the community and most of them, they’re able to go to school. They have much more recovery, I think, than most people realize is possible.

Also this:

SHAPIRO: Bernat’s a neurologist at Dartmouth Hitchcock Medical Center. He’s not the girl’s doctor. But he says its unusual to give up so quickly on a child. 

Dr. BERNAT: In this case this girl has been in a vegetative state for somewhat under five months from trumatic brain injury. And we know that those can recover in up to a year. Or sometimes too, people will spontaneously recover awareness.

(note: the state actually sued for treatment removal ten days after Poutre’s injuries – the court fight over the removal of treatment took five months.)

Two factors that may exacerbate any early judgments to remove life-supporting treatments are the demand for organs for transplant and the increased adoption of “Donation after Cardiac Death (DCD).”

DCD is a protocol in which someone who is ventilator-dependent is taken off breathing support and usually given some sort of pain killer. In order for organs to be usable for donation, breathing and heartbeat have to cease within 30-60 minutes. It’s most often used with newly brain injured people. Not Dead Yet has been involved in stemming attempts to expand the protocol. This is all set against a very real context in which even a leading bioethicist and expert on consciousness was sounding an alarm regarding the aggressiveness of organ procurement reps in approaching families of patients recently brain-injured.

So much – for now – on organ procurement protocols – which have changed from the “brain dead” protocol most people are somewhat familiar with – although there are significant problems with “brain death” and how it’s determined.

What’s the basis for a criminal investigation into this child’s death? And why did it take four years?

From the LA Times again:

Detectives opened the case earlier this year. Denise Bertone, a veteran coroner’s investigator who specializes in child deaths, first flagged the use of fentanyl at the time of Cole’s 2013 autopsy and campaigned for years to persuade supervisors to reexamine the case. Her efforts resulted in the coroner’s office amending Cole’s death certificate in December to add fentanyl toxicity as a “significant cause” of his death.

But back in 2013, her Supervisor refused to add “fentanyl toxicity” as a cause of death or even to test fentanyl toxicity. Recently, a new Supervisor took over for the previous one and everything changed, according to the Times:

After Fajardo left office last year, Bertone approached the then-interim chief medical examiner, Dr. Lakshmanan Sathyavagiswaran, who agreed to reopen the case. A pediatric toxicologist brought in as an expert by the coroner’s office found that the fentanyl “was responsible for the death of this patient” and that the dose was “not consistent with a therapeutic dose for the management of pain and discomfort,” according to excerpts of his findings quoted in a coroner’s report. 

As a result, Sathyavagiswaran changed Cole’s death certificate in December to add fentanyl toxicity to the list of causes of death and asked for a law enforcement investigation. The manner of death — whether it was an accident or a homicide — remains listed as “undetermined” pending the outcome of the investigation.

There was another criminal investigation of a similar organ procurement in Californian. Ruben Navarro, like Cole Hartman, had developmental disabilities. One has to wonder – were their potentials for recovery written off early because they were already – as some medical professionals see disabled people – “damaged goods”?