Legal death

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Legal death is the recognition under the law of a particular jurisdiction that a person is no longer alive. [1] In most cases, a doctor's declaration of death (variously called) or the identification of a corpse is a legal requirement for such recognition. A person who has been missing for a sufficiently long period of time (typically at least several years) may be presumed or declared legally dead, usually by a court. When a death has been registered in a civil registry, a death certificate may be issued. [2] Such death certificate may be required in a number of legal situations, such as applying for probate, claiming some benefits, or making an insurance claim. [3]

Contents

Medical declaration

Most legal determinations of death in the developed world are made by medical professionals who pronounce death when specific criteria are met. [4] Two categories of legal death are death determined by irreversible cessation of heartbeat (cardiopulmonary death), and death determined by irreversible cessation of functions of the brain (brain death).[ citation needed ][ dubious – discuss ] In the United States, each state has laws for determining these two categories of death that are modeled after the Uniform Determination of Death Act. States that do not recognize "irreversible cessation of all function of the entire brain, including the brainstem" to be death include Arizona, Illinois, Iowa, Louisiana, North Carolina, and Texas. [5] [1]

Cardiopulmonary criteria for death are met when a physician determines that efforts to restart a stopped heart during cardiac arrest are futile, or that no attempt should be made to restart a stopped heart, such as when there is a Do Not Resuscitate (DNR) order. In the latter case, irreversible is understood to mean that heartbeat and breathing cannot return on their own and will not be restored by medical intervention. [6] [7]

Brain death determinations are made in cases where breathing is supported by machines. Brain death is determined by there being no signs of brain function during neurological examination of a person with a beating heart. [8] Confirmatory tests document either no blood flow to the brain, or no brain electrical activity in absence of factors [9] known to produce reversible loss of brain function. [10] Unlike cardiopulmonary death which sometimes involves a decision not to resuscitate the heart, brain death is a determination that the brain biologically cannot be resuscitated.

If a clinically dead person has suffered injuries so severe that resuscitation is obviously impossible, then in some jurisdictions first responders may make a legal determination of cardiopulmonary death. Such a person is said to be dead on arrival (DOA) or dead at the scene. [11]

Presumption

In some cases, a person will be declared dead even without any remains or doctor's declaration. This is under one of two circumstances. First, if a person was known to be in mortal peril when last seen, they can often be declared dead shortly after. [12] Examples would be the passengers of the Titanic that were not rescued after the ship sank. Second, if a person has not been seen for a certain period of time and there has been no evidence that they are alive. The amount of time that has passed varies by jurisdiction, from as little as four years in the US state of Georgia to twenty years in Italy. [13]

False declarations

There are three general categories where people may be falsely declared dead: by mistake, because of fraud, or as punishment for a crime. [14]

Mistaken

Sometimes people who are declared dead return and are unable to be declared alive. One study estimated that every year, the U.S. Social Security Administration declares 12,200 alive citizens as dead. [15]

Constantin Reliu, a Romanian man living in Turkey, lost contact with his family. His wife had a court declare him dead in 2016, after having no contact with him since July 1999, shortly before a major earthquake in Turkey. His wife assumed that he had died in the earthquake. [16] [17]

In 2013, an Ohio man named Donald E. Miller Jr. who was declared legally dead in 1994 resurfaced and sued to be declared alive. However, the local court declined and ruled he was still legally dead because Ohio state law does not allow reversing legal declarations of death if more than three years have passed. [18]

In 2016, Frenchwoman Jeanne Pouchain was erroneously declared dead by a French court of appeal hearing an employment dispute. The error was upheld in court in 2017. As of 2021, Pouchain was still fighting to be legally recognized as alive. [19] [20]

Fraudulent

In some cases, a legal declaration of death is fraudulent. Several people have faked their own deaths for various reasons. The most common reasons for this are to collect insurance money, to avoid capture by police or to avoid paying debts. [21]

At times, people declare other people dead for their own benefit. For instance, In India, several people have been falsely and fraudulently declared dead by family members wishing to steal land and other property. The best known is Lal Bihari, who was fraudulently declared dead by family members, and was legally dead between 1975 and 1994. Bihari founded the Association of Dead People to help others in similar situations. [22]

Punitive

Historically, those who have committed crimes or other wrongs against the state have been declared legally dead despite being obviously alive. This is known as civil death. Such a person loses all rights normally granted to a person. In jurisdictions that practiced civil death, it was legal to kill such a person, since they were not legally recognized as alive anymore, and therefore their killing not considered a murder. [23]

Reversals

Reversing an incorrect declaration of death can be a time-consuming and difficult process. Whether a victim of fraud or an honest error, it often takes many years to reverse a fraudulent death declaration, and at times it never happens. Bihari didn't get his declaration of death reversed until 1994, 19 years later. [22] Reliu lost a court battle to be declared alive in March of 2018, [16] [17] but the decision was reversed three months later when the courts declared him alive. [24] Donald E. Miller Jr. remains legally dead because the state of Ohio has no legal means for reversing a declaration of death, [18] and Jeanne Pouchain of France was still fighting to be legally recognized as alive in 2021. [19]

Investigation

Determining manner of death often has important legal implications. Governments elect a coroner or appoint a medical examiner, depending on jurisdiction, to both determine manner and cause of death, and if necessary, identify bodies when their identities are unknown. Manner of death is usually classified as natural, accidental, homicide, suicide, pending or undetermined. A soldier is often listed as killed in action if the death was during military service. There are legal implications to all of the classifications. For example, a homicide may be ruled a justifiable homicide.

Estate

In nearly all jurisdictions, dead people do not have the right to own property. When a person dies, their property needs to be distributed to others in a process called probate. People can specify their wishes before they die by preparing a will and testament. If there is no will, the laws of their country determine how the property is distributed. In most cases, it would go to next of kin, such as a spouse or adult child. If the person who died is wealthy, often a portion of their property will be collected by an estate tax.

Bioethics

There are a few controversies surrounding the topic of legal death among health professionals and the general public. The main issues argued amongst bioethicist include but are not limited to; non-heart-beating organ donation, the criteria for determining death for adults versus infants, and whole-brain versus higher-brain versus brainstem death. [25]

Non-heart-beating organ donation

Non-heart-beating organ donation or NHBD is the procurement of organs after cardiac death. Cardiac death is determined after a patient has suffered cardiac arrest for two to five minutes. [26] [27]

Whole-brain vs. higher-brain vs. brainstem criteria

Deciding on which criteria to follow for determining brain death is still heavily debated today. [28] Whole-brain criteria are the standard most countries follow including the United States. Under the whole-brain death criteria, all functions of the brain including the brainstem must be ceased. The brainstem criteria differs from the whole-brain formulation, in that only the brainstem function is ceased. [29] The brainstem is responsible for breathing and carrying out somatic regulatory functions.

Related Research Articles

<span class="mw-page-title-main">Death</span> Irreversible cessation of all biological functions that sustain an organism

Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including the brainstem. Brain death is sometimes used as a legal definition of death. The remains of a former organism normally begins to decompose shortly after death. Death is an inevitable process that eventually occurs in all organisms. Some organisms, such as Turritopsis dohrnii, are biologically immortal. However, they can still die from means other than aging.

<span class="mw-page-title-main">Cardiac arrest</span> Sudden stop in effective blood flow due to the failure of the heart to beat

Cardiac arrest, also known as sudden cardiac arrest, is when the heart suddenly and unexpectedly stops beating. As a result blood will not be pumped around the body in normal circulation, consciousness will be rapidly lost, and breathing will be abnormal or absent. Without immediate intervention such as cardiopulmonary resuscitation (CPR), and possibly defibrillation, death will occur within minutes.

<span class="mw-page-title-main">Cardiopulmonary resuscitation</span> Emergency procedure for cardiac arrest

Cardiopulmonary resuscitation (CPR) is an emergency procedure consisting of chest compressions often combined with artificial ventilation, or mouth to mouth in an effort to manually preserve intact brain function until further measures are taken to restore spontaneous blood circulation and breathing in a person who is in cardiac arrest. It is recommended for those who are unresponsive with no breathing or abnormal breathing, for example, agonal respirations.

Clinical death is the medical term for cessation of blood circulation and breathing, the two criteria necessary to sustain the lives of human beings and of many other organisms. It occurs when the heart stops beating in a regular rhythm, a condition called cardiac arrest. The term is also sometimes used in resuscitation research.

<span class="mw-page-title-main">Hypothermia</span> Human body core temperature below 35.0 °C (95.0 °F)

Hypothermia is defined as a body core temperature below 35.0 °C (95.0 °F) in humans. Symptoms depend on the temperature. In mild hypothermia, there is shivering and mental confusion. In moderate hypothermia, shivering stops and confusion increases. In severe hypothermia, there may be hallucinations and paradoxical undressing, in which a person removes their clothing, as well as an increased risk of the heart stopping.

<span class="mw-page-title-main">Do not resuscitate</span> Legal order saying not to perform CPR if heart stops

A do-not-resuscitate order (DNR), also known as Do Not Attempt Resuscitation (DNAR), Do Not Attempt Cardiopulmonary Resuscitation (DNACPR), no code or allow natural death, is a medical order, written or oral depending on the jurisdiction, indicating that a person should not receive cardiopulmonary resuscitation (CPR) if that person's heart stops beating. Sometimes these decisions and the relevant documents also encompass decisions around other critical or life-prolonging medical interventions. The legal status and processes surrounding DNR orders vary in different polities. Most commonly, the order is placed by a physician based on a combination of medical judgement and patient involvement.

Brain death is the permanent, irreversible, and complete loss of brain function which may include cessation of involuntary activity necessary to sustain life. It differs from persistent vegetative state, in which the person is alive and some autonomic functions remain. It is also distinct from comas as long as some brain and bodily activity and function remain, and it is also not the same as the condition locked-in syndrome. A differential diagnosis can medically distinguish these differing conditions.

<span class="mw-page-title-main">Asystole</span> Medical condition of the heart

Asystole is the absence of ventricular contractions in the context of a lethal heart arrhythmia. Asystole is the most serious form of cardiac arrest and is usually irreversible. Also referred to as cardiac flatline, asystole is the state of total cessation of electrical activity from the heart, which means no tissue contraction from the heart muscle and therefore no blood flow to the rest of the body.

<span class="mw-page-title-main">Automated external defibrillator</span> Portable electronic medical device

An automated external defibrillator or automatic electronic defibrillator (AED) is a portable electronic device that automatically diagnoses the life-threatening cardiac arrhythmias of ventricular fibrillation (VF) and pulseless ventricular tachycardia, and is able to treat them through defibrillation, the application of electricity which stops the arrhythmia, allowing the heart to re-establish an effective rhythm.

Prior to the introduction of brain death into law in the mid to late 1970s, all organ transplants from cadaveric donors came from non-heart-beating donors (NHBDs).

Dead on arrival (DOA), also dead in the field, brought in dead (BID), or dead right there (DRT) are terms which indicate that a patient was found to be already clinically dead upon the arrival of professional medical assistance, often in the form of first responders such as emergency medical technicians, paramedics, firefighters, or police.

A flatline is an electrical time sequence measurement that shows no activity and therefore, when represented, shows a flat line instead of a moving one. It almost always refers to either a flatlined electrocardiogram, where the heart shows no electrical activity (asystole), or to a flat electroencephalogram, in which the brain shows no electrical activity. Both of these specific cases are involved in various definitions of death.

Certain fundamental Jewish law questions arise in issues of organ donation. Donation of an organ from a living person to save another's life, where the donor's health will not appreciably suffer, is permitted and encouraged in Jewish law. Donation of an organ from a dead person is equally permitted for the same purpose: to save a life. This simple statement of the issue belies, however, the complexity of defining death in Jewish law. Thus, although there are side issues regarding mutilation of the body etc., the primary issue that prevents organ donation from the dead amongst Jews, in many cases, is the definition of death, simply because to take a life-sustaining organ from a person who was still alive would be murder.

Lazarus syndrome, also known as autoresuscitation after failed cardiopulmonary resuscitation, is the spontaneous return of a normal cardiac rhythm after failed attempts at resuscitation. It is also used to refer to the spontaneous return of cardiac activity after the patient has been pronounced dead. Its occurrence has been noted in medical literature at least 38 times since 1982. It takes its name from Lazarus who, according to the New Testament, was raised from the dead by Jesus.

A beating heart cadaver is a body that is pronounced dead in all medical and legal definitions, connected to a medical ventilator, and retains cardio-pulmonary functions. This keeps the organs of the body, including the heart, functioning and alive. As a result, the period of time in which the organs may be used for transplantation is extended. The heart contains pacemaker cells that will cause it to continue beating even when a patient is brain-dead. Other organs in the body do not have this capability and need the brain to be functioning to send signals to the organs to carry out their functions. A beating heart cadaver requires a ventilator to provide oxygen to its blood, but the heart will continue to beat on its own even in the absence of brain activity. This allows organs to be preserved for a longer period of time in the case of a transplant or donation. A small number of cases in recent years indicate that it can also be implemented for a brain-dead pregnant woman to reach the full term of her pregnancy. There is an advantage to beating heart cadaver organ donation because doctors are able to see the vitals of the organs and tell if they are stable and functioning before transplanting to an ailing patient. This is not possible in a donation from someone pronounced dead.

Brainstem death is a clinical syndrome defined by the absence of reflexes with pathways through the brainstem – the "stalk" of the brain, which connects the spinal cord to the mid-brain, cerebellum and cerebral hemispheres – in a deeply comatose, ventilator-dependent patient. Identification of this state carries a very grave prognosis for survival; cessation of heartbeat often occurs within a few days, although it may continue for weeks if intensive support is maintained.

Sam Parnia is a British associate professor of Medicine at the NYU Langone Medical Center where he is also director of research into cardiopulmonary resuscitation. In the United Kingdom, he is director of the Human Consciousness Project at the University of Southampton. Parnia is known for his work on near-death experiences and cardiopulmonary resuscitation.

In many legal jurisdictions, the manner of death is a determination, typically made by the coroner, medical examiner, police, or similar officials, and recorded as a vital statistic. Within the United States and the United Kingdom, a distinction is made between the cause of death, which is a specific disease or injury, versus manner of death, which is primarily a legal determination versus the mechanism of death which does not explain why the person died or the underlying cause of death and can include cardiac arrest or exsanguination. Different categories are used in different jurisdictions, but manner of death determinations include everything from very broad categories like "natural" and "homicide" to specific manners like "traffic accident" or "gunshot wound". In some cases an autopsy is performed, either due to general legal requirements, because the medical cause of death is uncertain, upon the request of family members or guardians, or because the circumstances of death were suspicious.

Slow code refers to the practice in a hospital or other medical centre to purposely respond slowly or incompletely to a patient in cardiac arrest, particularly in situations for which cardiopulmonary resuscitation (CPR) is thought to be of no medical benefit by the medical staff. The related term show code refers to the practice of a medical response that is medically futile, but is attempted for the benefit of the patient's family and loved ones. However, the terms are often used interchangeably.

The stages of death of a human being have medical, biochemical and legal aspects. The term taphonomy from palaeontology applies to the fate of all kinds of remains of organisms. Forensic taphonomy is concerned with remains of the human body.

References

  1. 1 2 Lewis, Ariane (2017). "Shouldn't Dead Be Dead?: The Search for a Uniform Definition of Death". Journal of Law, Medicine & Ethics. 45 (1): 112–128. doi:10.1177/1073110517703105. PMID   28661278. S2CID   4388540.
  2. ↑ Gorman, W. F. (January 1985). "Medical diagnosis versus legal determination of death". Journal of Forensic Sciences. 30 (1): 150–157. doi:10.1520/JFS10975J. ISSN   0022-1198. PMID   3981105.
  3. ↑ "Legal Death Law and Legal Definition | USLegal, Inc". definitions.uslegal.com. Retrieved 2019-10-04.
  4. ↑ Dimond, Bridgit (2004). "The clinical definition of death and the legal implications for staff". British Journal of Nursing. 13 (7): 391–393. doi:10.12968/bjon.2004.13.7.12684. hdl:10822/991192. PMID   15150479.
  5. ↑ Haupt, W. F.; Höfling, W. (November 2002). "[The diagnosis of brain death: medical and legal aspects with special reference to the German Transplantation Law (TPG)]". Fortschritte der Neurologie-Psychiatrie. 70 (11): 583–590. doi:10.1055/s-2002-35178. ISSN   0720-4299. PMID   12410428.
  6. ↑ Sarbey, Ben (2016-11-20). "Definitions of death: brain death and what matters in a person". Journal of Law and the Biosciences. 3 (3): 743–752. doi:10.1093/jlb/lsw054. ISSN   2053-9711. PMC   5570697 . PMID   28852554.
  7. ↑ Controversies in the Determination of Death: A White Paper by the President's Council on Bioethics. bioethics.gov. 2008. p. 84. ISBN   9781437921878. For this reason, many have argued that the word "irreversible" in this context should be understood to mean "cessation of circulatory and respiratory functions under conditions in which those functions cannot return on their own and will not be restored by medical interventions."
  8. ↑ van der Lugt A (November 2010). "Imaging tests in determination of brain death". Neuroradiology. 52 (11): 945–947. doi:10.1007/s00234-010-0765-7. PMC   2952109 . PMID   20820765. There is uniform agreement on the clinical neurological examination to evaluate absence of brain function. This examination includes the assessment of coma, the absence of brain reflexes, and the assessment of apnea.
  9. ↑ Wilson, William C.; Grande, Christopher M.; Hoyt, David B. (2007). Trauma: Critical Care (1st ed.). CRC Press. p. 133. ISBN   978-0824729202. However, barbiturate coma, metabolic dysfunction (e.g. hepatic encephalopathy), severe hypothermia (temperature < 18°C), and other confounding factors may also produce cerebral electric silence on EEG.
  10. ↑ van der Lugt A (November 2010). "Imaging tests in determination of brain death". Neuroradiology. 52 (11): 945–947. doi:10.1007/s00234-010-0765-7. PMC   2952109 . PMID   20820765. Confirmatory tests can be classified into two categories: confirmation of loss of electrical activity (electroencephalography or somatosensory-evoked potentials) and demonstration of loss of cerebral blood flow (cerebral angiography, transcranial doppler ultrasonography, or cerebral scintigraphy).
  11. ↑ Gardiner, D.; Shemie, S.; Manara, A.; Opdam, H. (2012-01-01). "International perspective on the diagnosis of death". BJA: British Journal of Anaesthesia. 108 (suppl_1): i14–i28. doi: 10.1093/bja/aer397 . ISSN   0007-0912. PMID   22194427.
  12. ↑ "Why Hospitals And Families Still Struggle To Define Death". NPR.org. Retrieved 2019-10-04.
  13. ↑ "Presumption of Death Act". www.bclaws.ca. Retrieved 2019-10-04.
  14. ↑ "Inside the World of Investigators Who Know You've Faked Your Death". MEL Magazine. 2019-08-26. Retrieved 2019-10-04.
  15. ↑ "What It's Like to be Declared Dead by the Government".
  16. 1 2 "A Romanian court has ruled that a man is dead, even though he's clearly alive – and the decision is final". Independent.co.uk . 2018-03-18.
  17. 1 2 Dwyer, Colin (March 16, 2018). "Man Says He's Not Dead. Court Doesn't Buy It" – via NPR.
  18. 1 2 Schwartz, John (2013-10-11). "Declared Legally Dead, as He Sat Before the Judge". The New York Times.
  19. 1 2 Willsher, Kim (2021-01-12). "French woman spends three years trying to prove she is not dead". the Guardian. Retrieved 2021-01-12.
  20. ↑ Willsher, Kim (2021-07-03). "'They said I don't exist. But I am here': one woman's battle to prove she isn't dead". the Guardian. Retrieved 2021-07-05.
  21. ↑ "Playing a risky game: people who fake death for big money". www.cbsnews.com. Retrieved 2019-10-04.
  22. 1 2 Bearak, Barry (2000-10-24). "Azamgarh Journal; Back to Life in India, Without Reincarnation". The New York Times.
  23. ↑ Chin, Gabriel J. (2012). "The New Civil Death: Rethinking Punishment in the Era of Mass Conviction". University of Pennsylvania Law Review. 160 (6): 1789–1833. ISSN   0041-9907. JSTOR   41511317.
  24. ↑ Services, Compiled from Wire (2018-07-04). "Romanian man proves he's alive as court annuls death certificate". Daily Sabah. Retrieved 2021-04-23.
  25. ↑ "'A Duty to Die?' STS class ponders life-and-death bioethics – The Miscellany News" . Retrieved 2019-10-04.
  26. ↑ ""Non-Heart-Beating," or "Cardiac Death," Organ Donation: Why We Should Care". Medscape. Retrieved 2019-10-04.
  27. ↑ Potts, Michael (2007). "Truthfulness in Transplantation: Non-heart-beating Organ Donation". Philosophy, Ethics, and Humanities in Medicine. 2: 17. doi: 10.1186/1747-5341-2-17 . PMC   2000872 . PMID   17718917 – via Gale Academic OneFile.
  28. ↑ Bernat, James L. (1998). "A Defense of the Whole-Brain Concept of Death". The Hastings Center Report. 28 (2): 14–23. doi:10.2307/3527567. ISSN   0093-0334. JSTOR   3527567. PMID   9589289.
  29. ↑ Bernat, James (Winter 2013). "Controversies in defining and determining death in critical care". Nature Reviews Neurology. 9 (3): 164–73. doi:10.1038/nrneurol.2013.12. PMID   23419370. S2CID   12296259 – via Gale Academic OneFile.
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