In an Aug.7, 2026 post by Thaddeus Mason Pope, JD, PhD, HEC-C on his Medical Futility blog titled Dead Donor Rule Violations Draw Federal Sanctions, he writes that:
“Most violations of the dead donor rule are not enforced. When they are, it is usually through state criminal law. But this week, we see federal government enforcement of the dead donor rule. ” (Emphasis added)
The U.S. Department of Health and Human Services decertified the Lexington, Kentucky-based organ procurement organization, Network for Hope, after the DHHS found “persistent patient safety failures,” including moving forward with harvesting the organs from TJ Hoover despite him being alive and later recovering. ” (Emphasis added)
In my February 6, 2026 blog “Two States Are Facing Challenges in Death Decisions Regarding Death Determination Errors and Assisted Suicide”, I quote Mr. Pope’s statement on death determination:
“In Kentucky, Thaddeus Pope states his January 29th blog, Death Determination Errors Addressed in New Legislation, that:
“The goal in death determination is 100% accuracy: zero false positives. So, it is regrettable that we need legislation to address roles and responsibilities when a patient who was determined and declared dead is not dead. But we now have such legislation.
Kentucky H.B. 510 provides that “during any organ donation recovery, preservation, or procurement activity … a pause in procedure shall be initiated if any individual … reports on any of the following: (1) Observed or suspected change in neurological status; (2) Observed or suspected indication of life; or (3) Uncertainty regarding the accuracy or completeness of neurological status or death declaration assessments.” (Emphasis added)
The goal in death determination is 100% accuracy: zero false positives. So, it is regrettable that we need legislation to address roles and responsibilities when a patient who was determined and declared dead is not dead. But we now have such legislation.
Kentucky H.B. 510 provides that “during any organ donation recovery, preservation, or procurement activity … a pause in procedure shall be initiated if any individual … reports on any of the following: (1) Observed or suspected change in neurological status; (2) Observed or suspected indication of life; or (3) Uncertainty regarding the accuracy or completeness of neurological status or death declaration.” (Emphasis added)
CONCLUSION
I agree with Mr. Pope.
I first began my questioning about brain death when I went to a patient’s room in our ICU and found a group of doctors around a patient who had just been removed from a ventilator.
When I questioned what they were doing, the doctors told me that they were checking to see if the patient was brain dead.
When I said that brain cells would be dying from a lack of oxygen after several minutes and making him worse, the doctors looked stunned and told me that “Greater minds than yours have worked this out”.
I later learned that a pregnant woman on a ventilator continued her pregnancy until birth, and about cases like Zack Dunlap and Jahi McMath who survived after being declared brain dead.
I also discovered that some mothers declared “brain dead” were able to gestate their babies for weeks or months to a successful delivery before their ventilators were removed and that there were many cases of “brain dead” people who lived for months or years and even grew proportionally and achieved puberty.
If the legal definition of brain death is “irreversible cessation of all functions of the entire brain, including the brain stem” (Emphasis added), these cases would seem to be impossible.
And when I served on a hospital medical ethics committee, I was horrified when one doctor found a less rigorous set of brain death tests at another local hospital and proposed that we adopt this standard so that more of our patients could be declared “brain dead” for organ donation.
Investigating further, I also found “near-miss” cases like Zach Dunlap’s. Zach Dunlap is a young man who was declared brain dead after an accident in 2007. Testing showed no blood flow to his brain, and he was being considered for organ donation when a relative discovered a physical response. Four months later, Zach was making plans to return to work. In an interview, he said he heard a doctor say he was dead and it “just made me mad inside”.
CONCLUSION
As I pointed out in my Spring 2016 NCBC Quarterly journal article titled “Brain Death: Do We Know Enough?” :
“When cases like those of Jahi McMath and Zack Dunlap who survived after being thought brain dead are routinely dismissed instead of rigorously investigated to establish the facts, medical certainty is not achieved and medical integrity is undermined. In addition, when hospitals set their own standards and policies for determining brain death without external accountability, lives—as well as the essential and necessary trust in the health care system—can and possibly will be lost.” (Emphasis added)
Personally, I am not against all organ donation.
In the past, I have offered to be a living donor for a friend who needed a kidney, watched my grandson cured of a rare disease through a bone marrow transplant, and I told my family that I wanted to donate my corneas and any other tissues that can be taken after natural death.
I am open to new facts, but until then, I refuse an apnea test or any other test to specifically determine brain death if I have a severe brain injury.
And I will not sign an organ donor card.”
nancyvalko 