Polar Bear Plunge CaseBrandon Theiss, PE

Brandon.Theiss@Rutgers.edu

What is Death?

What is Death?

• Death is the termination of all biological functions that sustain a living organism.• “An individual who has sustained irreversible cessation of all

circulatory and respiratory functions, as determined in accordance with currently accepted medical standards, shall be declared dead.” 26:6A-2. • “An individual whose circulatory and respiratory functions can be

maintained solely by artificial means, and who has sustained irreversible cessation of all functions of the entire brain, including the brain stem, shall be declared dead” 26:6A-3.

What is Hypothermia?

What is Hypothermia?

Noun1.(pathol) an abnormally low body temperature, as induced by exposure to cold weather

2.(med) the intentional reduction of normal body temperature, as by icepacks, to reduce the patient's metabolic rate: performed especially in heart and brain surgery

What is Medical Malpractice?

What is Medical Malpractice?

• is professional negligent act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient,

What did the coroner do after the house fell on the Wicked Witch of the East?

What did the coroner do after the house fell on the Wicked Witch of the East?

As Coroner I must aver,I thoroughly examined her.

And she's not only merely dead, she's really most sincerely dead.

The Case

• Tracy Hottenstein at 35 attend the “Polar Bear Plung” in February 2009 in Sea Isle City

• She went to several bars on Saturday night• At 2:15 on Sunday morning she was last seen

visibly intoxicated leaving a bar in Sea Isle City near a city owned fishing pier

• Her body was found adjacent to a fishing pier the following morning

The Facts

• The body was discovered by a fisherman at approximately 7:30 AM who called the police• The police arrived and did not observe any signs of life and subsequently

cordoned the area around the body suspecting foul play• The police called for an ambulance and when the EMT arrived they also

observed the body• After the EMTs paramedics arrived who subsequently called an attending

emergency room doctor at a local hospital.• After a ~1 minute phone conversation that doctor a “Pronouncement of death”• The Family Tracy Hottenstein sued the ER Doctor and the Paramedics for

medical malpractice

The Issues

• Why did Tracy Hottenstein die?• Who could legally could determine that Tracy Hottenstein was dead?• What is the proper standard of care for the medical practitioner to

have practiced?

New Jersey Declaration of Death Act (1991)

"New Jersey Declaration of Death Act." • 26:6A-4. Physician to declare death a. A declaration of death upon the basis of neurological criteria pursuant

to section 3 of this act shall be made by a licensed physician professionally qualified by specialty or expertise, in accordance with currently accepted medical standards and additional requirements, including appropriate confirmatory tests, as are provided pursuant to this act. b. Subject to the provisions of this act, the Department of Health, jointly with the Board of Medical Examiners, shall adopt, and from time to time revise, regulations setting forth (1) requirements, by specialty or expertise, for physicians authorized to declare death upon the basis of neurological criteria; and (2) currently accepted medical standards, including criteria, tests and procedures, to govern declarations of death upon the basis of neurological criteria. The initial regulations shall be issued within 120 days of the enactment of this act. c. If the individual to be declared dead upon the basis of neurological criteria is or may be an organ donor, the physician who makes the declaration that death has occurred shall not be the organ transplant surgeon, the attending physician of the organ recipient, nor otherwise an individual subject to a potentially significant conflict of interest relating to procedures for organ procurement. d. If death is to be declared upon the basis of neurological criteria, the time of death shall be upon the conclusion of definitive clinical examinations and any confirmation necessary to determine the irreversible cessation of all functions of the entire brain, including the brain stem. L.1991,c.90,s.4

"New Jersey Declaration of Death Act." • 26:6A-6. Immunity granted to health care practitioner, provider,

hospital A licensed health care practitioner, hospital, or the health care provider who acts in good faith and in accordance with currently accepted medical standards to execute the provisions of this act and any rules or regulations issued by the Department of Health or the Board of Medical Examiners pursuant to this act, shall not be subject to criminal or civil liability or to discipline for unprofessional conduct with respect to those actions. These immunities shall extend to conduct in conformity with the provisions of this act following enactment of this act but prior to its effective date. L.1991,c.90,s.6.

"New Jersey Declaration of Death Act." • 26:6A-6. Immunity granted to health care practitioner, provider,

hospital A licensed health care practitioner, hospital, or the health care provider who acts in good faith and in accordance with currently accepted medical standards to execute the provisions of this act and any rules or regulations issued by the Department of Health or the Board of Medical Examiners pursuant to this act, shall not be subject to criminal or civil liability or to discipline for unprofessional conduct with respect to those actions. These immunities shall extend to conduct in conformity with the provisions of this act following enactment of this act but prior to its effective date. L.1991,c.90,s.6.

"New Jersey Declaration of Death Act." • 26:6A-8. Rules, regulations, policies, practices to gather reports, data a. Pursuant to

the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the Department of Health shall establish rules, regulations, policies and practices as may be necessary to collect annual reports from health care institutions, to gather additional data as is reasonably necessary, to oversee and evaluate the implementation of this act. The department shall seek to minimize the burdens of record-keeping imposed by these rules, regulations, policies and practices, and shall seek to assure the appropriate confidentiality of patient records. b. The Department of Health, the Board of Medical Examiners, and the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care shall jointly evaluate the implementation of this act and report to the Legislature, including recommendations for any changes deemed necessary, within five years from the effective date of this act. L.1991,c.90,s.8.

NEW J ERS E Y ADMINISTRAT I V E CODE T I T L E 13LAW AND P U B L I C S A F E T YCHAPTER 35BOARD OF ME D I C A L EXAMINERS

13:35-6.2 PRONOUNCEMENT OF DEATH• "Pronouncement of death" means the act of conducting an inquiry

concerning the circumstances of a death, checking for vital signs, ascertaining pertinent history and, where appropriate, performing a complete external examination of the unclothed body and providing a medical opinion as to conclusion and cause(s) of the death.

13:35-6.2 PRONOUNCEMENT OF DEATH• d) Where the apparent death has occurred outside a licensed hospital and the

attending or covering physician has been notified but is unable to go to the location to make the determination and pronouncement, said physician may specify another physician or may arrange with a professional nurse (R.N.) or a paramedic in accordance with N.J.A.C. 8:41-3.9, which requires the relay of findings, including telemetered electrocardiograms, if feasible to attend the presumed decedent and make the determination and pronouncement. In every such instance a written record, which may be contained within a police record, shall be prepared describing the circumstance and identifying the physician and any other person designated as above to perform the death pronouncement responsibility. Such report shall be promptly communicated orally to the attending physician for use in preparation of the death certificate.

13:35-6A.4 STANDARDS FOR DECLARATION OF BRAIN DEATH• b) The examining physician who is to pronounce brain death shall:

• 1) Determine a reasonable basis to suspect brain death. Brain death may be declared where the etiology [the cause] of the insult or injury is sufficient to cause brain death and, in the judgment of the examining physician, is irreversible;

• 2) Exclude complicating medical conditions that may confound the clinical assessment of brain death, including:• i) Severe hypothermia, defined as core body temperature at or below 92 degrees

Fahrenheit in adults, or outside the clinically established age specific range in a child;

The Verdict