Can You File a Lawsuit if Your Loved One Is Declared “Legally Dead”?

Most legal determinations of death are made by medical professionals who pronounce death when specific criteria are met. However, the lines between clinical diagnoses and legal classifications can sometimes be fuzzy. While a health care professional makes a clinical diagnosis for medical purposes, clinical diagnoses can also be used to aid in legal classifications. For example, a person is declared clinically dead when blood circulation and breathing completely stops. For someone to be declared legally dead, however, resuscitation must not be possible. This means is that if someone were to flatline and then be brought back to life through CPR, they would only be considered clinically dead when their heart had stopped beating. However, if CPR was unsuccessful and the person was declared dead by a doctor, they would be legally dead.

The legal and medical communities in the US now use the term “brain death” as a legal definition of death. This allows a person to be declared legally dead even if life support equipment maintains the body’s metabolic processes. However, most countries, including the US, use the whole-brain criteria when declaring someone legally dead. Under the whole-brain death criteria, all brain functions, including the brainstem, must cease.

Under GA Code § 31-10-16, “A person may be pronounced dead… if it is determined that the individual has sustained either (1) irreversible cessation of circulatory and respiratory function or (2) irreversible cessation of all functions of the entire brain, including the brain stem.” So one might think that, given Georgia’s own definition, a person who has suffered brain death should be considered legally dead. However, a hospital is not legally allowed to discontinue life-saving services without permission, even if they are the only thing keeping a patient alive. In other words, if your loved one is only alive because he or she is on a respirator, the hospital cannot remove him or her from the machine without your permission, or they could be sued for negligence (In re: Jane Doe, 262 Ga. 389, 418 SE2d 3 (1992). Instead, you would most likely have to file a personal injury claim instead.

What is brain death and how is it determined?

Brain death is the complete, permanent, and nonreversible loss of brain function and may include the cessation of the involuntary bodily functions necessary to sustain life. As codified under the Uniform Determination of Death Act and in all states, including Georgia and the District of Columbia, brain death means that there has been “irreversible cessation of all functions of the entire brain, including the brain stem.” This definition has been included in the medical and legal definition of death for nearly 40 years.

Brain death is not the same as a persistent vegetative state or coma, conditions in which the person remains alive, and some autonomic functions and brain and bodily activity persist. Brain death is also different from “lock-in syndrome.” Lock-in syndrome is a condition in which a patient is conscious but unable to move or communicate through speech because of complete paralysis of nearly all the body’s voluntary muscles, apart from eye movements and blinking. If doctors fail to order the necessary tests to determine whether a patient is aware of their condition and unable to communicate, they may be misdiagnosed as brain dead.

 

Brain death is generally determined during a neurological examination of a person with a beating heart but no signs of brain function. In the absence of factors known to produce reversible loss of brain function, ancillary testing is used to confirm that there is either no blood flow to the brain or no brain electrical activity. Unlike cardiopulmonary death, which could involve a decision not to resuscitate the heart, brain death is a determination made when the brain biologically cannot be resuscitated.

Wrongful death lawsuits – the basics

Under Georgia law, a family member is eligible to file a wrongful death lawsuit on behalf of a deceased loved one if the death resulted from a “homicide,” which the state defines as death resulting from:

• A crime
• A defective product
• Negligence (which can include car accidents, medical malpractice, and more)

A wrongful death action can be filed by a surviving spouse, a child (in the absence of a surviving spouse), or a parent (in the absence of a surviving spouse or child). If there is no surviving spouse, child, or parent, the administrator or executor of the decedent may bring an action for wrongful death and the recovery will be held for the benefit of the decedent’s next of kin. If the lawsuit is fruitful, the plaintiff can recover the “full value of the life of the decedent.”

Has your loved one been declared legally dead, but you do not understand your legal rights regarding a wrongful death lawsuit? The experienced Georgia wrongful death attorneys at Harris Lowry Manton LLP are prepared to help. Call us in Atlanta at 404-998-8847, in Savannah at 912-417-3774, or fill out our contact page to arrange a free initial consultation today.