Are You a Legal Professional?

Brain Death vs. Persistent Vegetative State: What is the Legal Difference?

Ventilators, feeding tubes, and other medical technologies have made it much easier to sustain the lives of those with severe brain injuries. But has the law kept pace with medical advances? At what point is an individual legally declared dead? The types of severe brain injuries that raise this difficult question often fall somewhere along the spectrum of persistent vegetative state and brain death. Someone who is medically declared brain dead -- meaning there is zero brain activity -- is legally considered dead.

However, there are occasional efforts to keep brain dead individuals on life support, while those in a persistent vegetative state (often referred to as "chronic wakefulness without awareness") may be allowed to die naturally if they have requested so in a living will. And surgeons must act quickly in order to harvest useable tissues from registered organ donors, which adds to the urgency and stress of the decision for the patient's family and friends.

It's a complicated matter, but this article will help you understand the basic legal implications of the most severe brain injuries. See Brain Injury Overview for related information.

What is a Persistent Vegetative State?

An individual with severe cerebral damage who has been in a chronic state of unconsciousness for at least four weeks is considered to be in a persistent vegetative state (PVS). It sometimes is confused with a coma, but comatose patients are never conscious (while someone with PVS may exhibit limited wakefulness, including eye movements, spontaneous body movements, and groaning). PVS can be a controversial diagnosis, since patients with locked-in syndrome are fully conscious, but similarly unable to communicate or respond to stimuli.

A patient considered "highly unlikely" to live beyond a vegetative state, after having gone through rigorous testing, may be diagnosed as being in a persistent vegetative state. It is not impossible for PVS patients to recover higher brain functions, just extremely rare and largely dependent on the cause and nature of the brain injury. But the chance of recovery after three months is very small.

If the doctors believe there is little to no chance of recovery, then family and loved ones may seek a court order to remove the patient from life support (which is not necessary if the patient or someone with power of attorney has signed a "do not resuscitate," or DNR, order). In the absence of a court order or a DNR, the hospital is obligated to keep the patient alive through artificial means until further notice.

What is Brain Death?

Unlike persistent vegetative state, brain death is the irreversible loss of all functions of the brain, including the brainstem (which controls breathing and other vital functions). Certain reflexes, such as spontaneous movement of limbs or sweating, sometimes occur in brain dead individuals. But the diagnosis of brain death is much more definitive than PVS and relies on three main components:

  1. Coma: Patient should be completely unresponsive and unconscious (typically tested with painful stimuli).
  2. Absence of Brainstem Reflexes: Patient should be unresponsive to stimuli that otherwise would trigger an involuntary response (such as dilation of the pupils in the presence of a bright light).
  3. Apnea Test: The patient, when disconnected from a respirator, should not have respiratory movements and will show other measurable signs supporting the diagnosis of brain death.

If the patient is diagnosed as brain dead, he will be declared clinically and legally dead. If the patient is an organ donor, his other organs typically are maintained with a respirator until they can be collected. Where there is doubt about a patient's condition, he or she may be kept on life support pending a second opinion (typically under court order).

Otherwise, hospitals generally are not legally obligated to keep patients who are declared brain dead on life support. This is regulated at the state level, but most states follow similar protocol. New York law, for instance, allows for limited "reasonable accommodations" (such as the continuation of life support for a limited time) in the event of religious objections to the brain death standard.

PVS, Brain Death, and Advance Directives

Those who end up in a persistent vegetative state are, of course, unable to tell doctors whether they would like to remain on life support. The best way to ensure that your end-of-life wishes are honored is to create a living will while you are still healthy.

A living will is a legal document that dictates how you would like to be cared for in the event of an incapacitating injury, such as that resulting in a PVS. If you would like to die naturally, by removal of a feeding tube or ventilator, all parties are legally required to follow your wishes. See Living Will Basics for more articles and sample forms.

The durable power of attorney, meanwhile, grants decision-making authority to a trusted individual named in the document. This person must adhere to your living will, but legally may make other important decisions not specifically covered in the living will. Some states refer to the combination of a living will and durable power of attorney as an "advance directive."

Next Steps
Contact a qualified health care attorney to help
navigate legal issues around your health care.
(e.g., Chicago, IL or 60611)

Help Me Find a Do-It-Yourself Solution