Buffalo General Medical Center says in a new set of court papers that it should be allowed to pull the plug on Beverly Whitehead, a D’Youville University administrator deemed brain dead in late March.
“Under New York law, Mrs. Whitehead has been clinically and legally dead since March 30,” wrote Michael J. Roach, a lawyer for the hospital.
Whitehead’s adult children obtained a court order April 1 keeping her on life support until she’s examined by a neurologist they selected – one not on staff at Kaleida Health or its Buffalo General.
“We still want our second opinion,” said Winter Whitehead, one of three siblings working to make that happen.
While Roach said Buffalo General offered a list of 45 neurologists on staff who could offer a second opinion, Winter Whitehead said she didn’t care if the hospital’s list named a million doctors.
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“We want someone outside of Kaleida,” she said, adding that the family wants the specialist to examine their mother personally, not to render an opinion from her medical records. To the family, that’s simply reviewing another doctor’s work, she said.
In his papers, Roach tells the judge that the family has had enough time to arrange a second opinion. However, he again says the family’s chosen doctor – the Catholic Health System’s Dr. William Coplin – must first obtain privileges from Buffalo General before examining Beverly Whitehead on the premises.
Roach says Coplin has not sought privileges, nor has the family arranged Beverly Whitehead’s transfer to another facility where he can examine her – an option the family offered. Further, some of the facilities once being considered have declined, he said. Winter Whitehead acknowledged that moving her mother has proven complicated but the effort remains ongoing.
As for a second opinion based on medical records, Roach presented an affidavit from an Albany Medical Center neurologist who went through them at Buffalo General’s request. Concluded Dr. Colum Amory: “It is my opinion, to a reasonable degree of medical certainty, that Ms. Whitehead is brain dead.”
“The question here is are you entitled to a second opinion,” said the lawyer for the family, Ralph C. Lorigo, who will have a chance to respond to Roach’s papers. “I believe they are. We have been blocked.”
Beverly Whitehead, 62, was rushed to Buffalo General on the evening of March 26 after collapsing at the Buffalo Creek Casino. Her heart had stopped.
Her adult children – Eric, Jaime and Winter – told The Buffalo News that doctors initially told them she would likely need a pacemaker and help in the home whenever she could be released. However, a new team of doctors the next day gave a more serious prognosis because the patient had gone so long without oxygen, the children said. Finally, on March 30, they were told their mother was brain dead and would be taken off a ventilator two days later, April 1. The children said that because of the shifting assessments, they were stunned.
Unknown to them, Dr. Lucy Campbell had run a series of tests on March 30. She entered the results on a hospital form called the “checklist for determination of brain death for adults.” Campbell checked boxes stating, among other things, that the patient was in an irreversible coma, had no spontaneous respirations, no cough reflex and her pupils did not react to bright light.
But the form requires that all boxes be checked, and Campbell did not check the box that asked if “reasonable efforts” were made to tell the patient’s decision-makers of an intent to determine brain death. For medical reasons, Campbell also could not yet perform an apnea test to determine if Beverly Whitehead could breathe on her own. Still, based on Campbell’s work, the family was told their mother was gone.
On April 2, after the court order kept Beverly Whitehead on life support, Dr. Jamie Nadler, the hospital’s chief quality officer, went through the same checklist. Nadler checked all the boxes. By then, an apnea test had been done and two transcranial Doppler tests found no brain activity.
“We are empathetic and sympathetic to Ms. Whitehead’s family members, as they were suddenly and unexpectedly confronted with end-of-life issues,” wrote Roach, the Buffalo General lawyer, in his papers to State Supreme Court Justice Dennis E. Ward. He said Kaleida has tried to help the family but “with about one month behind us, it is only reasonable that these proceedings come to a close.”