Legal Question in Medical Malpractice in California
Brain Death Challenge
My husband was given a brain death exam after receiving 10mg morphine thru an IV every 15 mins for 1:15 (5 total). He failed the apnea test due to no spontaneous breathing. I was informed and invited into the ICU while they disconnected lines & tubes and shut down the equipment. When I objected, I was told that ''once the patient is brain dead all medical intervention is futile. Your objection is no longer relevant.''
This was hospital day 9. I called the coroner the next day because, wierd as it was, my husband just hadn't seemed dead to me & I needed some kind of help? Maybe an autopsy? The coroner blew me off but contacted the hospital. This was a reportable death they failed to report. Although that is a misdeameanor in CA, as is removing the tubes on a reportable death, the hospital was not cited.
CA H&S code 7184 concludes ''a
determination of brain death must be made in accordance with accepted medical standards.'' Even the most relaxed protocols provided by the OPOs state that the patient must be free of CNS drugs before the exam can be made.
I am posting this to inquire what kind of attorney do I need? It is hardly malpractice. All actions here were very intentional. Pls advise.
2 Answers from Attorneys
Re: Brain Death Challenge
You haven't said a word about his brain function at the time. If his traces were flat, he WAS 'brain dead', regardless of eye movement, morphine or other issues.
Before thinking you have a wrongful death lawsuit, you have to establish that them pulling the plug actually caused death of a live functioning person. What admissable medical evidence and expert witness opinion do you think you will be able to obtain to prove brain function if they and their medical charts say there was none, "according to acceptable medical standards" in their opinion?
Their problem is really that they pulled the plug over your objection, rather than that you dispute brain death. You may have a viable claim on that issue, which amounts to an emotional distress claim.
Re: Brain Death Challenge
First of all, I am very sorry for your loss.
You will probably want to have his medical and hospital records reviewed by appropriate medical experts to see whether or not the doctors/hospital violated the standard of care. As I think you may realize, it may be that he was in fact brain-dead, and removing the tubes in the manner that they did was a "no harm, no foul" type of situation. An experienced medical malpractice lawyer in your locality can help you have the records reviewed. Sometimes the hospital tampers with the medical records, which is why some lawyers use private investigators to get a copy of the records on the Q.T. These records are then compared with the ones released by the hospital. Again, you should act quickly as evidence grows stale with time; and there are legal time limits involved that can act as traps for the unwary. Best of luck to you.
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