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Witnesses Urge Changes to Law on Determining Death

May 26, 2004 – Wednesday's Senate Health, Hospitals and Human Services Committee heard testimony concerning constraints of the territory's Uniform Determination of Death Act and how they can impact on the "harvesting" of organs donated for transplant.
The committee, chaired by Sen. Douglas Canton Jr., took testimony from several hospital physicians, a representative of a not-for-profit organization that procures organs for donation, and a father who donated organs of his 21-year-old son following the young man's death as a result of an auto accident on St. Croix.
The territory's death act, which dates from 1984, states that whether the heart stops beating and cannot be resuscitated; or whether the brain and the brainstem have ceased functioning, a person is legally deceased as of the time that a physician makes either of these determinations.
The so-called Fredella Amendment, enacted in 1993, mandates that when the Territorial Court is petitioned to allow the withdrawal of respirator support, there must be clinical evaluations by two neurologists as well as at least two electroencephalograms confirming the absence of brain activity over at least 24 hours.
Canton has proposed a further amendment adding a new sections to determine the time of death, to require that hospitals make reasonable efforts to notify next of kin that such a determination will soon be made, and to direct the hospitals to establish a written policy regarding the determination of brain death.
The Gloria Fredella case, in 1992, involved a patient who suffered a massive stroke on St. Thomas and was determined to be brain dead. The family petitioned the court to allow the respirator the patient was on to be disconnected. As a result, the court set the additional criteria to be considered in determining whether a person has any spontaneous brain function.
Dr. Kendall Griffith, medical director at Juan F. Luis Hospital, told the committee on Wednesday that the V.I. legal mechanisms to verify the death of an individual put undue constraints on the physician and the patient's family.
The Fredella case, Griffith said in a prepared speech, "inadvertently eliminated the physicians' ability to determine the medical criteria for brain death."
At present, he said, "JFL hospital has one neurologist and has neither an EEG machine nor a technician to perform the test. We now have no feasible way to declare brain death."
Dr. Donald Myers, a neurosurgeon and chair of the newly established JFL Death Determination Committee, said V.I. physicians have never codified specific medical criteria for clinical brain death. There are tests available "which can be done right now in St. Croix that are arguably more accurate and generally more accepted" than what is mandated by the current law, he said.
Dr. David D. Weisher, a St. Thomas neurologist, recommended that the committee set "relatively broad" guidelines to allow hospitals to establish rules that fit their own needs and capabilities. He suggested that physicians be allowed to determine death "within acceptable medical standards."
Marien Saade, vice president and executive director of Life Link of Puerto Rico, expressed support for Canton's proposed amendment but called attention to what she termed a "significant problem" in the legislation. The Fredella requirement "places an unwarranted restraint in the organ procurement process," she said.
Life Link is a not-for profit entity that carries out the procurement of transplantable organs in a donation service area coving the Virgin Islands and Puerto Rico. Federal regulations require hospitals to enter into an agreement with a certified organ procurement organization; Life Link provides the services to Juan F. Luis and Roy L. Schneider Hospitals.
Saade said the requirement of a 24-hour absence of brain activity hampers the organ procurement and transplantation process. She also said the criteria established by Fredella are not consistent with the medical standards for the determination of death as established by the American Academy of Neurology. "The AAN has determined that brain death is a clinical diagnosis and that confirmatory tests are not mandatory," she said.
Senators then heard testimony concerning difficulties encountered by parents who donated the organs of their 21-year-old son after his death in an auto accident on St. Croix last month. A family friend read a prepared statement by Stan Miller, father of the deceased Matt Miller, citing "insurmountable legal and bureaucratic hurdles" regarding organ donation.
The elder Miller said he and his wife had to travel to San Juan with their son's body, at their own expense, because organ harvesting is not done on St. Croix. He described his San Juan experience as "the most gruesome, lonely and surreal days" of his life. Despite having air evacuation insurance, he said, he had to pay the costs up front.
The hardships aside, Miller said he is glad he and his wife made the decision to donate their son's organs. But he expressed concern that other families are not in a financial position to do what they had to do. He urged the senators to "do all you can to make this incredibly difficult decision easier for the families of St. Croix."
Canton said he and his committee "gained a better understanding" of the issues at Wednesday's hearing. "My main focus is to make sure that we craft language that facilitates quality service to our residents … that is consistent with accepted medical practices," he said.
Committee members present were Sens. Norman Jn Baptiste, Canton, Adlah "Foncie" Donastorg, Luther Renee and Usie Richards. Sen. Lorraine Berry was excused. Sen. Ronald Russell, who is not a member of the committee, also attended the hearing.
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