When Does Death Occur?

Throughout history, doctors, philosophers, theologians and poets have struggled with the meaning of death. And in the last quarter of a century, lawyers, too, have grappled with the Grim Reaper.

The decision as to when a person is dead is not merely a medical, biological, philosophical or physical conclusion. It is now, in part, also a legal decision about what conditions define human life combined with an empirical determination that those conditions are absent.

A declaration of death is important in a legal context because of the important legal consequences it triggers. As medical technology advances, the question of when death occurs provokes controversy in cases involving criminal, insurance, termination of life support, inheritance, personal injury and wrongful death actions, as well as statute of limitations issues.

And since death may not occur at a particular moment, but can be a deteriorating process before it becomes final, its definition becomes even more elusive.

A declaration of death takes on new significance in Illinois under the recent law that revamped the civil justice system, Public Act 89-7. An amendment to the Wrongful Death Act (740 ILCS 180/1) now bars any claim under the act brought by survivors for their loss due to the death, if the decedent previously settled or brought to judgment a personal injury cause of action for his or her own injuries arising out of the same underlying incident.

This statute skews constitutional due process considerations involving the time of death. Ponder the case of a Hollywood celebrity who falls off his horse and breaks his neck. He is on life support, near death. Under this statute, the family is forced to decide how long to keep him alive, depending in part upon the relative value of personal injury action versus a wrongful death action. Is the case for his death worth more than the case involving his disability, pain and suffering, medical and hospital bills while he is still alive?

In general, despondent families may be tempted to engage in unethical and immoral considerations with the new law unfairly extinguishing their rights under a wrongful death claim. And the inherent unfairness of the new law will skew decisions on medical care.

Yet another question is raised: How is a person determined to be dead? Traditionally, the law has regarded this to be a question of fact determined by expert medical testimony. However, courts have been establishing standards that, although based on medical knowledge, define death as a matter of law. And, over the years, these standards have changed.

Years ago, when a person's ability to eat ceased, it led to certain death. With intravaneous feeding, that definition became obsolete.

Then, medical and legal communities acknowledged that when a person stopped breathing, sure death would follow. But now artificial respirators can keep a person alive for very long periods of time. Lately, the medical community itself has been turning away from the once conventional view of death as the cessation of heart and lung functioning, which it now views as the beginning of the death process. Illinois is in the mainstream of states that embrace brain death criteria.

But brain death diagnostic technology can be tragically imperfect, as it was in the case of 20-year-old Alan Supergan. The Glenview man, involved in an auto accident in 1984, had been declared brain dead. But during a subsequent organ donor operation, Supergan coughed.

So far, relatively few Illinois courts have been requested to struggle with this difficult question. The first time was In re Haymer, 115 Ill.App.3d 349, 450 N.E.2d 940 (1983), in which Illinois adopted the brain death standard. Illinois is joined by at least 39 other states and the District of Columbia in adopting such a definition for some or all purposes.

In Haymer, a seven-month-old's total brain function had ceased. A court authorized the Chicago hospital to disconnect the sustaining respirator despite his parents' objections. The disputed issue in this declaratory judgment action was when did death occur - when the child's brain ceased functioning or when his heart stopped beating?

The Haymer court found that a person will be considered dead for all legal purposes if there is a diagnosis of total, irreversible cessation of brain activity or total, irreversible cessation of all circulatory and respiratory function. Either diagnosis must be according to customary standards of medical practice.

But in determining how that standard is applied, courts also should state when a declaration of death is legally appropriate. Did the person die when the doctors noted no vital signs and flat brain activity? After the disconnection of the life support system? Or after the body completely shut down? Hours, days, weeks, even months can pass between these events.

Death brings together medicine, religion and law. At that moment in time, medicine has done all it can for the body and religion has done all it can for the soul. But it is through the law that the intentions of someone who no longer is alive live on.

And it is personal injury law that conservative legislators have effectively destroyed. So when representatives of that Hollywood celebrity try to make fiduciary decisions about personal injury, survival or wrongful death actions, they ought not to look to Springfield for help. All they will find is confusion and unconstitutional contradictions that are sure to be corrected by a wiser group in the judiciary who know how to deal with these life and death issues.