Welfare of Bowman, In re

• Decision Date: 02 October 1980
• Docket Number: No. 46582,46582
• Citation: 617 P.2d 731,94 Wn.2d 407
• Court: Washington Supreme Court
• Parties: In re the WELFARE OF William Matthew BOWMAN.

Page 407

94 Wn.2d 407

617 P.2d 731

In re the WELFARE OF William Matthew BOWMAN.

No. 46582.

Supreme Court of Washington, En Banc.

Oct. 2, 1980.

Cogdill, Deno & Millikan, James E. Deno, Everett, for appellant.

Perkins, Coie, Stone, Olsen & Williams, Bart Waldman, Bruce P. Clausen, Seattle, Slade Gorton, Atty. Gen., Kathryn Kamel, Asst. Atty. Gen., Everett, A. J. Losee, Lynnwood, for respondent.

Riddell, Williams, Ivie, Bullitt & Walkinshaw, Stimson Bullitt, Seattle, James M. Vache, Gonzaga University School of Law, Spokane, for amicus curiae.

UTTER, Chief Justice.

This is an appeal by the guardian ad litem appointed for William Matthew Bowman (Matthew) prior to Matthew's death, from the decision of the Snohomish County Superior Court ruling that because he had suffered irreversible loss of brain activity, he was in fact dead on October 17, 1979. Issues raised on appeal are: (1) whether law or medicine should define the standards establishing when death occurs; (2) if law is to define those standards, should the brain death standard be adopted; and (3) if that standard is adopted, what role should medicine have in defining the criteria for determining whether the standard has been met. We hold that it is for law to define the standard of death, that the brain death standard should be adopted, and that it is for the medical profession to determine the applicable criteria-in accordance with accepted medical standards-for deciding whether brain death is present. Our action affirms the judgment of the trial court.

Matthew Bowman, age 5, was admitted to Stevens Memorial Hospital on September 30, 1979, after suffering massive physical injuries inflicted by a non-family member who was caring for him. The next day the Department of Social and Health Services filed a petition alleging that Matthew was dependent, inasmuch as his parents could not be found. A shelter care order was entered which authorized the Department to transfer him to Children's Orthopedic Hospital and give consent to such medical and surgical care as was deemed necessary by the attending physician. When the natural parents were found, the original order was amended to give the Department and the parents power to authorize routine medical care and all necessary emergency care.

A hearing was held on October 17, 1979 to determine whether the dependency petition should be dismissed because a parent was present and able to care for the child. The guardian ad litem for Matthew, who had been appointed prior to the location of his parents, resisted the dismissal on the ground that the result would be a decision to terminate the life support systems sustaining Matthew. The trial court denied the motion to dismiss initially and received testimony from the child's attending physician.

That testimony indicated that Matthew had been unconscious since admission to Stevens Hospital, and except for a brief period of increased neurological activity, had gradually weakened. He was being maintained on a ventilator, which enabled him to breathe and provided oxygen to his heart, and various other life support mechanisms. Numerous tests had been performed during his hospitalization to measure Matthew's brain functions.

The physician testified that on the date of the hearing Matthew showed no brain activity. An electroencephalogram (EEG) gave no reading and a radionucleide scan, which shows whether blood is getting to and through the brain, found a total absence of blood flow. No cornea reflex was present and Matthew's pupils were dilated and nonreactive to any stimuli. There were also no deep tendon reflexes or other signs of brain stem action, nor responses to deep pain or signs of spontaneous breathing. Body temperature and drug intake had been controlled to avoid adverse influence on these tests. The testifying physician indicated that he believed Matthew's brain was dead under the most rigid criteria available, called the "Harvard criteria", and that his cardiovascular system would, despite the life support systems, fail in 14 to 60 days. He further testified that all physicians in the Children's Orthopedic Hospital intensive care unit agreed that Matthew was no longer alive by October 17 and recommended that he be removed from the ventilator, a recommendation consented to by his mother. According to the physician, brain death is operative as a definition of death in the state of Washington, and medically accepted criteria exist in the state for determining when brain death occurs. These generally require coma, lack of electrical activity, and lack of blood flow to the brain.

Findings of fact entered by the trial court and supported by substantial evidence establish the following:

The prevailing practice of the medical community, both in the State of Washington and nationwide, is to regard "brain death" as the death of the person. The medical profession has established several criteria by which to determine if brain death has occurred, and under the most stringent criteria offered by the medical profession, Matthew has suffered brain death. There is no possibility that Matthew's brain will resume functioning.

The trial judge then held, based on the findings of fact that:

The legal definition of death in the State of Washington must coincide with the prevailing medical opinion within the State as to when death occurs. Since the prevailing medical opinion recognizes that a person dies when an irreversible loss of brain function occurs, the irreversible cessation of brain activity constitutes death under Washington law.

Under Washington law, William Matthew Bowman is dead. The fact that modern medical technology can keep his heart beating and his blood circulating for a finite period of time after brain death does not make him a living being in the eyes of the law.

Matthew's guardian ad litem, after the testimony, requested the court to enjoin the withdrawal of life support equipment and compel the Department to authorize extraordinary measures. The hospital was also joined as a party. The court enjoined Children's Orthopedic Hospital from terminating or removing the life support systems until October 27, 1979, in order to give the guardian ad litem the opportunity to appeal the trial court's decision to the Supreme Court. The matter was noted for argument on October 24, 1979. Despite the maintenance of the life support systems, all bodily functions of Matthew ceased on October 23, 1979. Although technically moot, the question presented meets all the criteria set forth in Sorenson v. Bellingham, 80 Wash.2d 547, 496 P.2d 512 (1972), and the court therefore heard argument in the case.

I

Death is both a legal and medical question. Traditionally, the law has regarded the question of at what moment a person died as a question of fact to be determined by expert medical testimony. However, recognizing that the law has independent interests in defining death which may be lost when deference to medicine is complete, courts have established standards which, although based on medical knowledge, define death as a matter of law. See A. Capron & L. Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. of Penn.L.Rev. 87, 92-93 (1972). Thus, the law has adopted standards of death but has turned to physicians for the criteria by which a particular standard is met.

Until recently, the definition of death was both medically and legally a relatively simple matter. When the heart stopped beating and the lungs stopped breathing, the individual was dead according to physicians and according to the law. The traditional definition did not include the criterion of lack of brain activity because no method existed for diagnosing brain death. Moreover, until recently, no mechanical means have been available to maintain heart and lung action; and respiration, heart action, and brain function are so closely related that without artificial support, the cessation of any one of them will bring the other two to a halt within a very few minutes. C. Wasmuth, The Concept of Death, 30 Ohio St.L.J. 32, 38 (1969). Thus, Black's Law Dictionary 488 (4th ed. 1951), based upon older medical technology, defines death as:

The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.

With the recent advancement of medical science, the traditional common law "heart and lungs" definition is no longer adequate. Some of the specific factors compelling a more refined definition are: (1) modern medicine's technological ability to sustain life in the absence of spontaneous heartbeat or respiration, (2) the advent of successful organ transplantation capabilities which creates a demand for viable organs from recently deceased donors, (3) the enormous expenditure of resources potentially wasted if persons in fact dead are being treated medically as though they were alive, and (4) the need for a precise time of death so that persons who have died may be treated appropriately. Lecture by Professor Thomas McCormack on judicial decisions and biomedical ethics, University of Washington School of Medicine, April 30, 1980.

The numerous legal issues which look to the time and presence of death as determining factors require a legal response to these new developments. Inheritance, liability for death claims under an insurance contract, proximate cause and time of death in homicide cases, and termination of life support efforts are but a few of the areas in which legal consequences follow from a determination of whether death has occurred.

Recognizing that the former common law definition of death is no longer universally applicable, respondents maintain that brain death is also death under Washington law such that life supports may be terminated. Appellants, on the other hand, argue that...