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Moment of Death

Rabbi Dr. Moshe Tendler

Moment of Death

[23 minutes  8 seconds]

The issue concerning the moment of death or indicia of death, is really a modern shayla, a modern issue. Once upon a time there was no such question. A person died when there was cardio-pulmonary death. The heart stopped, the breathing stopped, the chevra kadisha came in with a feather, held the feather to the nose, [and] if the feather didn’t waft in the breeze, the man was dead.

Now we have the ability, because of the success of technology, not of medicine really but medical technology, mainly the development of the efficient ventilator, or respirator as people still refer to it. It is now possible to maintain the heart by providing oxygen through the ventilator even though the brain no longer controls the breathing mechanism. It’s a little crude to present you with this imagery, but we have no trouble decapitating an individual, placing the head on the side, and maintaining the rest of the body with viable organs using the ventilator, we’ll keep the heart beating, we’ll keep the lungs functioning, we’ll keep the kidneys viable. Obviously it’s not a pleasant thought, I’d like to think the nurses will know how to take the man’s temperature, that’s something that they don’t do, but in effect that’s what brainstem death is.

Now the new definition of death, known as brain death or more accurately brain stem death is really not a new definition at all. If you read carefully, the commentary of Rashi and the Gemara in Yuma, page 85, the language of Rashi is im hu shochet k’mes, he’s lying there as if he’s dead, which means no motion, no response to stimuli, which essentially is the protocol for determining brainstem death before the final test, which is known as the apnea test, or the test to determine if he can breath autonomically or not.

Rashi was aware that first you determine that the person looks like he’s dead, meaning that there is no brain activity, and then you determine for sure that he’s dead by checking the nostril, you examine the chotem and then you refer to the verse in the bible, vayipach b’apo nishmas ruach chayim and God breathed into his nostrils the life’s breath and hence we know that respiratory death is the final indicia of death. The man was dead a long time before that, it’s not this determination that declares him dead, this determination is that he had died sometime previously, and therefore those who misread this text and especially, I don’t know if our audience is familiar with the authority of one of the great abiders of Jewish law, the Chacham Tzvi. The Chacham Tzvi is sited by many as saying as he does say, that life depends upon the heart, and therefore as long as the heart is beating, they claim, regardless of whether it be by natural or artificial means, the man should be declared alive.

Well if you read the Chacham Tzvi, it’s a lengthy response, and I venture to say there’s hardly anyone who sites that response – whoever read through that response from beginning-to-end. Here he says clearly, unfortunately so, this was before we understood the circulatory system, before Harvey’s picture of circulation was well known. And here’s what the Chacham Tzvi says: since the heart warms the air before it goes to the lungs, therefore the heart is part of the respiratory mechanism. And since death is determined by respiratory death, therefore the heart has to stop beating because the man is still breathing through his heart.

The fact that he had this confused notion of human anatomy physiology, that the function of the heart was to warm the air before it’s get to the lung, this should be adequate reason for people not to cite the Chacham Tzvi in this issue. Instead, they pick out that one line that said “life depends upon the heart and if the heart is beating, the man is alive”. What he meant to say was, if the lungs are functioning, the man is alive. He somehow confused the heart’s function with the function of the lungs and had them both in the respiratory system, instead of having the heart as a separate circulatory system organ and the lungs as a respiratory system organ.

I think a little note from Biology 101 is in order… No one dies because the heart stops. As you well know, there’s CPR. Quick, he died, the heart stopped, we’ll get it to go again. That’s not techiyas hametim. That is not resurrection of the dead, it means he didn’t die. The fact that the heart stopped doesn’t mean he died. The heart stops long enough so that oxygen doesn’t reach the brain, that’s when he dies – that’s when you can’t resurrect him anymore.

So in truth, there never was any definition of death other than the death of those cells of the brain that control respiration. For until those cells die, a person can be kept alive using standard CPR, pacemakers, etc. etc. But once the heart has stopped long enough for anoxia to set into the brain, that’s when the heart dies, the heart dies, the lungs die, the legs die, the hands die – that’s when the individual is dead.

So the true definition of death at all times, today and when God made man, was brain stem death. Death occurs when the brainstem dies. Before that time, it is possible to keep a person alive. And unfortunately, people don’t teach it that way even in biology, except for Yeshiva College, where we make that point very clearly.

This is, I think, simple biological fact that people must understand. When we want to convince someone that the brain is dead who is not happy with the clinical symptoms, which is the protocol for determining brain death, the so-called Harvard criteria or the President’s commission criteria, what do we do? We eject a little radioisotope; it’s safe, doesn’t cause any difficulty, there’s an IV going in anyway, and then you bring up a gigo-counter, you take a picture so-called, and you show that there’s no blood reaching the brain. Well, every intelligent individual knows that if you cut off the circulation, then the organ dies. That is unfortunately a proof that has to be used in Pediatrics in brainstem death where a patient can be kept on the machine, on a ventilator, for months and months. An adult who has brainstem death, maybe you can keep them going another six or seven days, and then the heart will stop anyway. But pediatric not so, and you have to convince parents that unfortunately there’s not much we can do, an individual, the child should be buried. And then we do what is called a nuclide scan, you just inject a little radioisotope; take a picture and you’ll realize that the blood isn’t getting up into the brain area. It’s called a “hole in the head syndrome”, you see a hole in the head instead of seeing the circulatory system being outlined over there. And this is a result, which again a layman would understand, of the fact that the brain swelled. If you bang your knee and your knee swells, you understand, an injury causes swelling. When a fellow goes through the windshield, the brain hits up against the skull and can’t go anyplace and therefore begins to swell, so that’s why sometimes emergency care sometimes requires cutting a hole in the skull to reduce the pressure. Well if the pressure isn’t reduced soon enough then the back pressure, or the pressure in the skull, is greater than the person’s blood pressure, so the blood pressure is 120 and the pressure in the skull is 130, no blood will get into the skull area, into the brain. That’s where death occurs. Some question the concept of brainstem death because they heard it as brain death, that’s why the proper term is brain stem death. The halacha focuses on the ability of the brain to cause motion and Rashi’s comment, shochet k’mes all the ability to allow for respiration to occur. That’s the brain we’re talking about.

It’s a debater’s technique to say well there’s a hypothalamus there that also controls emotion and body temperature and that may not be dead. We’re not interested in knowing the anatomy of everything that’s in the skull. The halacha focuses on the respiratory brain, that’s why the proper term is brain stem death. The stem is where the center for breathing is. And consequently the fact that there would be, and again this is the debater’s technique, well you do not sure that there is no blood flow, there may be some flow. There may very well be some blood flow not detected by the neuclid scan, may not detect some of the finer blood vessels, but those blood vessels do not provide oxygen that can keep the brain alive.

The key final test in the Harvard criteria protocol, or as I prefer, the President’s commission brainstem protocol since I was active in testifying for that commission. The key is apnea. Once you check the function of all the cranial nerves, there is no pupilary response, there’s no ocular motor response, so you put ice water in the ear, there’s no gag reflex; everything has been checked. The person is not declared dead until then you check whether he can breath in anyway, a little bit, sometimes, on his own. That’s known as the apnea test. That’s performed by stopping the ventilator without hurting the patient. Now that is done by saturating the patient with a 100% oxygen for 20 minutes and then turning off the ventilator, the pump, while leaving the canular, leaving the little pipe, still leaking oxygen into the body. You could do it to a healthy patient, the pearl divers learn that technique, they don’t use scuba outfits, they just, on land, before they go under, they breath through oxygen then they can stay under for 10, 12 minutes. This is what’s done, if during that period of time the carbon dioxide rises to what’s known as 60 millimeter mercury, which is the amount that simulates the brain to begin breathing, if the patient does not, then the patient is dead. So that there is not a doubt as to whether, well maybe there’s enough blood to let the patient breath, well that’s the final test. If he should fail of the other tests, meaning he shouldn’t win any other tests and any of the other cranial nerve tests, that’s really what they are, show that there’s still activity, then they don’t even do the apnea test. Apnea test is only after everything has failed and he’s shochet k’mes, as Rashi says. Then, instead of using a feather, we use an apnea test.

Now the modern ventilators have what’s known as a sighmeter – SIGH – so they measure anytime the patient takes an independent breath. Really by the time you do a brainstem death determination, the staff knows pretty well that the patient’s not breathing, because the sighmeter does not indicate any attempt to breath independently or autonomically. The apnea test is a kind of final final test. The test has been done already by looking at the meter.

This question you ask, which is really the old question, how do you differentiate a braindead patient from a comatose patient? When the issue was presented to my great father-in-law, Rav Moshe Feinstein z”l, at that time nobody had a clear definition. The Harvard criteria were published, the doctors were not convinced they could differentiate between a braindead and a comatose patience. And that’s why it took Rabbi Feinstein two years before he ruled on this. During this period of time I took him to see, at Downstate Medical College in Kings County, what a brainstem patient looks like. And I remember what seemed to impress him most, as definitive, the fact that it forced a patient who is shochet k’mes, wouldn’t respond to any kind of stimuli, the iris, pupilary responses ect., but the fact that he had no gag response. They could put a tongue depressor down his throat and the patient would lie there, as something a person can experience knowing, I couldn’t do that, I couldn’t, you have to gag. That somehow convinced him more than all the other tests, the patient must be dead, no one would allow it to happen and not respond if he were still alive. But Rabbi Feinstein became very sophisticated in this matter. We came down from Albert Einstein College of Medicine, we had our heads of department, surgeons, kidney transplant people, who came to the house, one of them slept over – I would mention his name but I don’t know if he wants his name on there – actually they spoke long into the night and Rabbi Feinstein invited him to sleepover and continue in the morning. Then it took two years before Rabbi Feinstein now had it clear in his mind a comatose patient is alive, a PDS patient is alive, a Lou Gehrig patient is alive – even though he cant move – brainstem dead patient is dead.

The key final test in the Harvard criteria protocol, or as I prefer, the President’s commission brainstem protocol since I was active in testifying for that commission. The key is apnea. Once you check the function of all the cranial nerves, there is no pupilary response, there’s no ocular modal response, so you put ice water in the ear, there’s no gag reflex; everything has been checked. The person is not declared dead until then you check whether he can breath in anyway, a little bit, sometimes, on his own. That’s known as the apnea test. That’s the form by stopping the ventilator without hurting the patient. Now that is done by saturating the patient with a 100% oxygen for 20 minutes and then turning off the ventilator, the pump, while leaving the canular, leaving the little pipe, still leaking oxygen into the body. You could do it to a healthy patient, the pearl divers learn that technique, they don’t use scuba outfits, they just, on land, before they go under, they breath through oxygen then they can stay under for 10, 12 minutes. This is what’s done, if during that period of time the carbon dioxide rises to what’s known as 60 millimeter mercury, which is the amount that simulates the brain to begin breathing, if the patient does not, then the patient is dead. So that there is not a doubt as to whether, well maybe there’s enough blood to let the patient breath, well that’s the final test. If he should fail of the other tests, meaning he shouldn’t win any other tests and any of the other cranial nerve tests, that’s really what they are, show that there’s still activity, then they don’t even do the apnea test. Apnea test is only after everything has failed and he’s shohave kamis, as Rasha says. Then, instead of using a feather, we use an apnea test.

Now the modern ventilators have what’s known as a sighmeter – SIGH – so they measure anytime the patient takes an independent breath. Really by the time you do a brainstem death determination, the staff knows pretty well that the patient’s not breathing, because the sighmeter does not indicate any attempt to breath independently or automatically. The apnea test is a kind of final final test. The test has been done already by looking at the meter.

This question you ask, which is really the old question, how do you differentiate a braindead patient from a comatose patient? When the issue was presented to my great father-in-law, Moshe Feinstein, at that time nobody had a clear definition. The Harvard criteria were published, the doctors were not convinced they could differentiate between a braindead and a comatose patience. And that’s why it took Rabbi Feinstein two years before he ruled on this.

It brings me to the time I took him to see, at Downstate medical college in Kings County, what a brainstem patient looks like. I remember what seemed to impress him most, as definitive, the fact that it forced a patient who is shohave kamis, wouldn’t respond to any kind of stimuli, the iris, pupilary responses, but the fact that he had no gag response. They could put a tongue depressor down his throat and the patient would lie there, as something a person can experience knowing, I couldn’t do that, I couldn’t, you have to gag. That somehow convince him more than all the other tests, the patient must be dead, no one  would allow it to happen and not respond if they were still alive. But Rabbi Feinstein became very sophisticated in this matter. We came down from Albert Einstein college of medicine, we had our heads of department, surgeons, kidney transplant people, who came to the house, one of them slept over – I would mention his name but I don’t know if he wants his name on there – actually they spoke long into the night and Rabbi Feinstein invited him to sleepover and continue in the morning. Then it took two years before Rabbi Feinstein now had it clear in his mind a comatose patient, a PDS patient is alive, a Lou Gehrig patient is alive – even though he cant move, brainstem dead patient is dead.

As I’m treating episode in this brainstem death halachic analysis, it’s already some seven years ago or so, or more.  Rabbi Shlomo Zalman Orbach z”l raised a question based upon a Talmudic statement in the Talmud tractate Becholos, daf ches, page 8 it says there that when a pregnant woman dies, the fetus dies first. The fetus being weaker and therefore the poison of the angel of death kills the fetus first. Well, I’ve been in constant correspondence with him and I’ve kept him up to date when an issue arose in America of a woman that was declared brainstem dead and then kept “viable” until she could give birth by cesarean section some 56 days later. So he questioned right away, he said “well that means that you declared the woman dead and the baby was alive, that’s against the Talmud. The Talmud says the baby dies first. The answer we gave was well no, that’s because the Talmud didn’t have the woman on a ventilator. On a ventilator, the baby doesn’t have to die, just like the heart doesn’t die and the lungs don’t die, the baby will stay alive. He didn’t accept that easily. So we went ahead and we did an experiment. We meaning, Rav Avraham Steinberg, Rav Shatan in Eretz Yisrael, whether the people who actually got the work done. They bought a pregnant sheep in the last stages of gestation and they inserted a ventilator; then decapitated the sheep. Now decapitation is absolute. The Mishna says if someone is decapitated, he’s dead dead dead dead, no one can argue on that point. So here was a sheep who was dead, dead, dead. And they kept the sheep on a ventilator for an additional four hours or so. Could have kept him for four days, but they had to pay the doctors, as it is it came to some $7,000-$8,000, and then delivered a live lamb. Rabbi Shlomo Zalman Orbach z”l was presented with the video, which we have here in school, and I show it every year to the students in the ethics class or the fourth year rabbanus. He says okay, he withdraws his objection; he knows know that indeed a ventilated patient is different, but we never got him to come out with a clear statement. I have a letter from him that says he has no objection to doing organ transplants on brainstem death in America because he has confidence in the doctors in America, but not in Israel and so on. But over the course of several years of people bantering him from all sides, the last that I got from him is, “please, leave me out of the controversy, I need peace, I don’t want to be involved it in anymore”. So he finally decided to leave the field of battle because of the pressures on him from various sides, although Rabbi Shlomo Zalman Orbach was a very courageous, great possik and one, by the way, who was able to understand modern technology.

Interviewer: Many years ago when the Rosh Hashiva first wrote about this, he accepted brainstem death really based on two sources: one was the Gemara in Yuma, which says we define death by respiration, and one was the Mishna in Ohalot where the Rosh Hashiva had put forth a theory…

Rav Tendler: No, the third one actually – the definitive one was the third one… Gemara in Chulin, on daf chaf bes (22) where it says that Elie Ha’Kohen, fell off his chair and, nishbar mifrako, he broke his neck and he was dead, he was metamei ohel right away. right away. If anyone knows anything about anything, then certainly his heart was still beating at that time. Of course it beating with minutes, with seconds, but nevertheless we’re talking about now definitive halacha, and since halacha considered the severance, the connection between the head and the body, even though the head was attached, as tantamount to death, I coined the term “physiological decapitation”, for Elie Ha’Kohen was physiologically decapitated, he wasn’t anatomically decapitated. And basically what we are doing in determining brainstem death is that physiological decapitation.

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