New Kentucky law protects vulnerable people from organ harvesting

Even though Hoover was supposedly brain dead, he was moving so much that he had to be given a paralyzing agent while undergoing cardiac catheterization to see if his heart was healthy enough to put into someone else. After the drug wore off, he began thrashing and crying while being wheeled to the operating room to donate his organs. His family was told that these were just “reflexes.”

Whistleblowers testified that after two doctors refused to remove Hoover’s organs, the organ procurement team was instructed to just find another doctor and proceed! Thankfully a third doctor was not found and the procedure was called off. Hoover went on to recover, and even danced at his sister’s wedding. His sister says that he remembers what happened: “He’ll continually say, ‘Why did they want to kill me?’”

The new Kentucky law states that a “pause” shall be made during organ procurement if there is a change in neurological status, an indication of life, or any uncertainty regarding the accuracy or completeness of neurological or death declaration assessments. This pause may be requested by anyone present: physicians, nurses, clinical staff, organ procurement/transplant center personnel, members of the surgical or anesthesiology team, or the patient’s spouse or legal representative. These whistleblowers are legally protected and may not be penalized, disciplined, or retaliated against for requesting a pause in organ harvesting procedures.

Where the law gets interesting is that it specifically lists things that may be considered to be an “indication of life.” In the Bluegrass State, neurological death is defined under Kentucky Revised Statute (KRS) 446.400, which states there must be “a total and irreversible cessation of all brain function, including the brain stem.” But the way most doctors diagnose brain death, the American Academy of Neurology (AAN) brain death guideline, explicitly allows death to be declared while parts of the brain are still working. This disconnect between legal death and clinical practice has been flying under the radar for years, but Kentucky’s new legislation very effectively brings these discrepancies to light.

For example, under the new law, spontaneous movement is very properly considered to be a sign of life. But the AAN Guideline explicitly allows moving people to be declared dead! Spontaneous, complex movements, such as lifting a limb off the bed, reaching up with both hands toward the throat, or opening the eyelids with nipple stimulation, are all allowed under the Guideline as “reflexes.” However, the Guideline itself reveals the subjective nature of trying to decide whether a movement is voluntary or not: “It can sometimes be challenging to determine whether a movement is cerebrally or spinally mediated based solely on clinical examination. When such difficulties arise, review with more experienced clinicians may be helpful.” So if you’re not sure whether your moving patient is dead or alive, ask a friend!

Another indication of life under the new Kentucky law is “changes in heart rate or blood pressure inconsistent with a death declaration.” Jahi McMath, a young teenager who was declared brain dead, demonstrated heart rate variations when she heard the sound of her mother’s voice, prompting further investigation. Even though she had been properly diagnosed as being “dead” according to the AAN Guideline, two neurologists later testified that she had improved and developed signs of consciousness. This shows that brain death is neurological injury and not death, because dead people don’t get better!

Also, “brain dead” organ donors routinely respond with elevations in heart rate and blood pressure during the incisions, bone sawing, and surgical manipulations of organ harvesting. During my training as an anesthesiologist, I personally witnessed a “brain dead” organ donor responding to surgery just like anyone else, requiring the same types and amounts of anesthesia. An intact pain response during organ removal is not seen in true corpses — no drugs whatsoever are required when organs are removed during an autopsy. So operating room staff in Kentucky can now stop the procedure when they hear the organ donor’s heart rate increasing with incision, because “any neurological or physiological sign suggesting pain perception” is listed under the law as justifying a pause in organ procurement.

Vocalization or attempts to speak, purposeful or reflexive responses to stimuli, and attempting to breathe are more signs of life that warrant calling for a pause under the new law.

Finally, any sign of neurological activity in the patient also indicates that a pause should be called. This makes sense, because the Uniform Determination of Death Act and KRS 446.400 both state that there must be the irreversible cessation of ALL functions of the ENTIRE brain, including the brain stem to be declared dead by neurological criteria. But, under the AAN Guideline, most people with a brain death diagnosis still have neurological activity: 20 percent (of those tested) still have brain waves on their EEGs, and over 50 percent still have a functioning hypothalamus. The hypothalamus is an important part of the brain responsible for regulating blood pressure, sex drive, awareness, and pain. The hypothalamus is also responsible for maintaining body temperature, so any “brain dead” person who is not at room temperature is showing evidence of continuing neurological activity.

The new law has teeth, and includes consequences for failing to comply with a request for a pause. Possible penalties include loss of licensing, suspension of institutional organ procurement privileges, and civil penalties.

Kentucky’s new law will be a lifesaver for families who do not want their neurologically injured loved ones to become organ donors. Currently, because a donor registration is considered legally binding, organ procurement companies can harvest organs over the objections of the family. Now, obvious signs of life such as movement, heart rate and blood pressure elevations, and continued neurological function (such as a warm body temperature), will justify a pause — protecting vulnerable, neurologically injured people from organ harvesting in Kentucky.