In the past month doctors throughout the country have started experimental trials on a new medical procedure for gunshot victims. Typically, a new medical procedure would not be worth writing about on a funeral law blog, but this procedure is different. Doctors intend to suspend gunshot victims between life and death by replacing their blood with a cooled saline solution. Because this procedure suspends animation, it raises questions regarding when death occurs.
Samuel Tisherman, the surgeon leading the trial at the UPMC Hospital in Pittsburgh, has cursorily described the procedure as “emergency preservation and resuscitation.” On a simplified level, the procedure involves three steps. First, a patient’s blood is replaced with a cooled saline solution. Once replaced, a surgical team works within a 45 minute window to repair any structural problems. Once that window closes, the body must be gradually warmed up and resuscitated. If the body is not resuscitated in that time window, cellular death begins to occur and the once suspended animation begins to take on an aspect of permanence. In other words, if the damage is not repaired within 45 minutes, there is almost no chance of survival. The legally interesting issues lie in the first step of the surgical procedure – the largest and most looming of which is “are these victims dead or alive?” Generally, legal definitions of death come from state law, and most involve the phrase “permanent cessation” of either brain activity or of the heart and lungs. Since no legal precedent exists for this type of government issued suspended animation, the only logical analysis would rely on a plain reading of the appropriate legal definition, which typically states a requirement of “permanent cessation.”
In dealing with the procedure at hand, this definition presents a split path for declaring a time of death. For example, say a patient comes in with a gunshot wound at 4:55 PM. By 5:00 PM his blood has been replaced with the cooled saline solution, thus ceasing brain, heart, and respiratory activity. In one timeline, the doctors are able to resuscitate the patient at 5:45 PM. Since he comes back to life, the cessation is not permanent and there was no death. Thus, his time of death will be occur some time in the future.
However, if the doctors cannot resuscitate the victim at 5:45 PM, he will be declared legally dead because his brain activity permanently ceased at that time. His time of death will be drawn retrospectively back to 5:00 PM, despite his potential to come back to life. This “Retrospective Declaration of Death” has not yet been used, however it is the only logical conclusion one can take from a plain reading of the statutes defining legal death. Thus – like in most places in the law – the answer to the question of whether these victims are dead or alive is “we’ll see; it depends on the outcome.”