Judge Will Delay Decision on Brain-Dead Boy Until Thursday

In an evidentiary hearing today, a D.C. Superior Court judge decided to wait until Thursday to rule on whether a 12-year-old boy should continue receiving treatment at Children’s National Medical Center despite the hospital’s determination that the boy suffered brain death on Nov. 2.

The hospital and the boy’s parents have been embroiled in a legal dispute over the past week because they disagree on the definition of death.

His parents, who are Orthodox Jews, believe the boy, identified only as M.B., is still alive because his heart is still beating, which satisfies their faith’s definition of life. The hospital says that under D.C. law, life ends when brain activity ends. According to an affidavit filed by Sophia Smith, a doctor at the hospital who has been among those treating M.B., the unanimous view of the critical care staff is that M.B. “has ceased to exist by every medical definition.” Smith’s affidavit also says many of M.B.’s normal bodily functions are shutting down.

Judge William Jackson told Jeffrey Zuckerman, a partner at Curtis, Mallet-Prevost, Colt & Mosle representing the boy’s family, and Kenneth Rosenau, a name partner at Rosenau & Rosenau representing the hospital, that before he could rule on whether to suspend treatment--which includes drugs to sustain cardiac activity and a ventilator to maintain breathing--the hospital had to prove that M.B. is in fact dead under D.C. law.

Rosenau told the judge that the hospital understands the grief the family must be going through, but continuing to treat what he called “the earthly remains” is a strain on resources that could be better used to treat other children.

The hospital has 32 beds in its intensive care unit and receives new admissions every day, Smith said in her affidavit.

Rosenau said that another option would be for the boy’s parents to move him to a hospital in New York, where the parents reside. New York law includes a religious exception to the definition of life that allows life to be judged on whether a patient’s heart is still beating.

But Zuckerman argued that M.B. would not survive a move to New York and that he should continue being treated at the Children’s National Medical Center.

“Shutting down and shut down are very different things,” said Zuckerman. “The family hopes and prays constantly that he will recover. However, they are fully aware of the science of medicine and the likelihood that M.B. will not. They’ve faced that situation and they fully understand it.”