Expert: Are Some Brain-Death Diagnoses Really Just Medical Futility Cases?

Texas Tech health law professor Jennifer Bard available to discuss possible hospital misuse of brain death.

The 96th District Court in Tarrant County prepares to hear a case today (Jan. 24) involving a pregnant, brain-dead woman in a Fort Worth hospital. This is just one of several cases in which health and legal experts now are confronted with complicated ethical, legal and economic debates over brain-death, abortion and other sensitive end-of-life matters. For instance, how does hospital policy regarding brain death reconcile with a state’s adoption (or lack thereof) of a brain-death statute? And is the brain-death diagnosis a rush to judgment in what may just be a medical futility case?


Jennifer Bard, Alvin R. Allison Professor of Law, director of the Health Law Program, and adjunct associate professor at the Texas Tech University School of Medicine’s Department of Psychiatry; Texas Tech University School of Law;  (806) 834-1950, or

Talking Points 

  • Brain death is hard to define because science understands relatively little about how the brain works.
  • There are limitations in using the legal concept of brain death to describe the medical condition of any particular person.
  • While doctors may not be wrong in diagnosing the amount of brain damage or the chances of retaining consciousness, it is not the same as “complete cessation” of all brain activity.


  • “When a family wants to donate their loved one’s organs, a declaration of brain death is helpful mechanism for doing so. However, there is never any legal need for a declaration of brain death in order for a family to withdraw life sustaining treatment.”
  • “I suggest that it is possible that cases like the McMaths’ can arise when hospitals and doctors seek to pressure families into withdrawing treatment by, essentially, taking away their right to receive care. This can be a lot more direct than the often times consuming and complex process of withdrawing ‘futile’ care.”
  • “Although it is easy enough to say that Jahi’s family’s refusal to accept reality stems from ignorance or grief, it is not fair, as some have done, to call them crazy for mistrust of a diagnoses that is based in theory, not reality. Jahi may be irrevocably brain injured, but there are increasing signs that she may indeed have some brain function.”