Why Brain Death Should Be a Legal Fiction

Seema K. Shah, JD

Disclosures

September 23, 2013

In This Article

What About Estate Planning and Insurance Coverage?

The legal fiction of brain death is imperfectly described with regard to its limits. We have previously argued that brain death can be treated as death for the purposes of allowing the withdrawal of therapy or permitting organs to be donated. But this leaves many questions open-ended.

There are clear legal complications in regard to estate planning. When the estate tax was repealed for the year 2010, some lawyers received questions about the costs of keeping brain-dead family members on life support in order to avoid having to pay estate taxes.[1]

Should the fiction of brain death be extended to cases like these? It does seem like treating brain death as death is important in cases where people would otherwise try to manipulate the tax system in their favor, and the legal fiction of brain death should be used to cover situations like these (albeit for different reasons than in situations involving questions about organ transplantation or the withdrawal of life-sustaining therapy).

More to the point for our purposes, should insurance companies reimburse for care provided to brain-dead patients? And if so, for how long? Clearly, some time will inevitably transpire between the occurrence of brain death and the diagnosis of death by neurologic criteria.

It may, then, take families some reasonable amount of time to accept the fact that their loved one is legally dead. The consent process for organ donation also takes time. In some cases, family members may be traveling from far away to say goodbye to their relatives. It seems reasonable that insurers should reimburse for care of brain-dead patients up through a certain medically indicated period to allow for some acceptance of the diagnosis and to provide time to obtain valid consent for organ procurement. In one challenging case, a family wanted extra time to try an alternative remedy from their cultural tradition for a brain-dead relative.[1]

Although the physicians involved compromised and kept the brain-dead patient on the ventilator for several days, it is not clear that insurers should have to reimburse providers for care of a brain-dead patient for an extended period in situations like these.

In sum, the question of reimbursing for care does not track precisely with brain death, and there are important limits on the analogy where brain-dead patients might need to receive care for some time after they are declared brain dead for various legitimate reasons. It is also not clear as to whether insurance companies should reimburse providers for that care but within reasonable limits.

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