Definitions of death are based on subjective standards, priorities, and social conventions rather than on objective facts about the state of human physiology. It is the meaning assigned to the facts that determines whensomeone may be deemed to have died, not the facts themselves. Even though subjective standards for the diagnosis of death show remarkable consistency across communities, they are extrinsic. They are driven, implicitly or explicitly, by ideas about what benefits the community rather than what benefits the indidvidual. The (...) differences that do exist across communities generally reduce to questions about legitimacy and not fact. The questions at the core of the debate about brain death are better framed by asking: Whom ought we deem to be dead? rather than: Who is dead. The rationale for equating brain death with death, therefore, extends well beyond somatic and biological concepts of death. (shrink)

Summary and ConclusionMinutes before the jury would have returned a decision in Kaufman's favor, assessing damages of almost a half-million dollars against the physicians who treated her, she settled out of court for approximately half that sum. I would argue that responsibility in medicine, that liability for malpractice, should be restricted to cases of negligence in which there is no question concerning the proximate causality of the physician's proven negligence to the harm which resulted. It is clear that “negligence” covers (...) a wide range of actions. The solution to this problem lies in the definition of the physician's duties—not in the use of malpractice settlements for the compensation of tragic but accidental consequences whose risks were realistically inevitable or else willfully assumed by the patient as well as the physician. In medicine, there is a strict prima facie duty to know as much as possible. In practice, this approaches an ideal duty. The distinction between an ideal duty and a realistic duty emphasizes the importance of having the patient assume as full responsibility for the risks attendant to inevitable and unforeseeable consequences as the physician. In assessing fault for such consequences, it is essential to recollect that an agent cannot be said to have caused every happenstance which occurs while he acts; moreover, he certainly cannot be held strictly responsible for the cause of every event which succeeds his act. Thus, the primary problem in medical ethics is epistemological rather than normative. (shrink)

Both the therapeutic effects and the complications associated with neuromodulation of the brain can result in experiences that are neither reliably predictable nor easily describable. For this reason, protocols for informed consent must be carefully tailored to the procedure, the indication, and the patient, and satisfy very strict, often subjective patient standards of disclosure. These three elements can be combined to categorize procedures for neuromodulation (and as well as others) and optimize the protection of the patient.