The work of transplant surgeons — removing organs from donors who are often dead and placing them into very-much-alive recipients — is, for all intents and purposes, one of unalloyed benefit for society. In fact, I would call it magic! A single tragedy gets transformed into many miracles. 

So it was dispiriting to read of the Los Angeles police department’s investigation into a doctor’s role during an organ donation after a cardiac death procedure.1 The probe, which stems from a coroner’s investigator questioning the attending doctor’s use of fentanyl during the procedure, now also involves a whistle-blower retaliation lawsuit. 

The coroner who raised the concerns claims that she was passed over for promotions as a result of her complaints. The investigation appears to still be in its early stages and the outcome is uncertain. 

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For now, we have no idea whether the anesthesiologist in question should be criminally liable for administering 500 mcg of fentanyl to a patient whom all parties agreed had negligible probability of a meaningful neurological recovery. The investigation is expected to determine that, though I suspect that it will ultimately miss the larger point.

Years ago, determining when someone was dead was easy. If he or she was cold, blue and stiff, then you called the coroner.2 But this lack of nuance posed an insurmountable practical issue for transplant surgeons. Organs from a cold and blue stiff couldn’t be implanted into anyone else. 

The problem was partially addressed in the 1970s by the establishment of criteria for brain death. Typically, this was a set of about a dozen measures of neurological function, each of which must be absent for brain death to be declared. Though somewhat arbitrary, as evidenced by the variations in the criteria from hospital to hospital, these criteria at least opened the door to the first significant number of deceased-donor transplantations. 

In actuality, though, that door was really just ajar. Very few patients who might otherwise be considered to be in a “persistent vegetative state” or who have only a negligible shot at meaningful recovery actually meet the brain-death criteria. 

The brain death criteria are deliberately exacting, in large part, to avoid malpractice liability. However, that doesn’t necessarily serve the best interests of the 120,000+ patients stuck on transplant waitlists, nor the patients and families who would like to make those lists a lot shorter.