Oxygen Deprivation Can Lead to Brain Death

By Sara Buscher, a lawyer and Past Chair, EPC - USA

On January 2, Buffalo Bills football player Damar Hamlin crumpled to the ground after a routine tackle. His knees buckled and then the rest of his body followed. Those who watched the game were immediately concerned. His heart had stopped but was restarted while he was on the field. Medical staff from both teams began CPR which lasted for 20 minutes. His pulse was sporadic and stopped once but restarted on the field. He was taken by ambulance to a nearby hospital. Both teams prayed on the field. The game was cancelled. Damar Hamlin received medical treatment aimed at his recovery. He was on a ventilator but is now off. Fortunately, we now know Damar Hamlin is getting better every day and able to communicate to others.

Before he showed signs of recovery, social media posts speculated that he was brain dead. For example, “If Damar Hamlin didn't have oxygen to his brain for 5-10 minutes, you know what the results are. The same thing happened to my brother where he didn't have oxygen for that length of time & doctors ran test to show he was brain dead.”

We all know that a person deprived of oxygen can have severe brain damage, whether it’s caused by a stroke, heart attack, near drowning or head trauma. That’s why people train to do CPR and why we are told to immediately call 911 if someone stops breathing. According to WebMD,

Your cells use oxygen to make energy. If they don't get it, they die. It's your blood's job to deliver oxygen throughout your body….

Your brain's a real oxygen hog. It's a small part of your body weight, but it uses 20% of your oxygen. It can't store the oxygen, so it needs a steady flow of blood to work well. Brain cells start to die if they go without oxygen for just 3-4 minutes….

With each minute that passes, you lose about 2 million brain cells. The longer you go without oxygen, the greater your chance for brain damage that can't be undone. After about 10 minutes, the damage can be severe.

If a person can’t breathe on his own, a test for brain death called the apnea test takes the person off a ventilator for 8-10 minutes to see if the person will try to breathe. If the person can’t breathe, that’s 8-10 minutes without oxygen. That’s why the test itself can cause serious complications, cardiac arrest, brain damage and death. According to the article just referenced: “Apnea testing never provides any direct medical benefits to a patient; the only benefit of the test would be the cessation of continued treatment to someone diagnosed as dead.”

Families are distrusting of the apnea test, especially when a healthy child comes out of surgery labeled brain dead. Obviously, if a medical malpractice victim dies, the damages are lower. So, people are suspicious. Some families have sued for the right to say “No” to the apnea test, with mixed results. For example, a Montana court[i] sided with parents, a Virginia court did not.[ii] More cases have been collected on a web site; most of them ruling against families opposed to having loved ones tested.

Whether doctors must get informed consent before a loved one is subjected to the apnea test is now being considered by the Uniform Law Commission committee that is rewriting the Uniform Death Determination Act. If a statute prohibiting informed consent were enacted by each state as part of its Uniform Death Determination Act, no one would be asked to authorize apnea testing before their loved ones are tested. To justify this, some argue informed consent is not needed for diagnostic procedures. Legally, that argument is incorrect; informed consent is required for diagnostic procedures.[iii] Those who want to run the test without needing consent also argue the test is only used on people doctors already know are brain dead. Obviously, if they know the person is dead there is no need to run a test to find out if they are dead. Again, this raises suspicions.

I believe clinicians should explain to family members or a health care agent why they want to run the test, what it entails, what the risks and benefits are and then ask them to consent to the test. Doing so builds trust.

Endnotes.

[i] In re Allen Callaway, Montana, No. DG-16-08 (9th Jud. Dist. Ct., Pondera Cty., Mont. Sept. 26, 2016).

[ii] Lawson v. VCU Med. Ctr., No. CL16-2358, Order, Cir. Ct. Richmond, Va. (June 14, 2016), on appeal, No. 161321 (Va. 2016).

[iii] Berg JW, et al., Informed Consent Legal Theory and Clinical Practice 2d ed Oxford University Press 2001 at 54-5. See also COUNTERPOINT: Should Informed Consent Be Required for Apnea Testing in Patients With Suspected Brain Death? Yes at https://journal.chestnet.org/article/S0012-3692(17)31052-8/fulltext which explains the law of informed consent well.