For almost a month, Taquisha McKitty has been lying in a Brampton hospital bed, plugged into a ventilator, visited by family and friends, cared for by nurses and physicians, all while being deemed legally dead.
McKitty was brought to Brampton Civic Hospital via ambulance on Sept. 14, after a drug overdose.
On Sept. 20, two physicians diagnosed the 27-year-old mother as brain dead and signed her death certificate.
Hospital staff planned to remove her ventilator, but two court injunctions have kept it in place. And now her family is seeking a third injunction.
McKitty has been moving in her hospital bed — weeks after she was declared dead.
The family and an outside physician, who has been retained by the family, want to conduct a 72-hour filmed test to ascertain if those movements are signs of consciousness or spinal reflexes.
On Tuesday, Dr. Omar Hayani, who signed her death certificate, told the court “all the movements are in keeping with the spinal reflexes phenomenon.”
Dr. Andrew Healey, a critical care specialist with privileges at Brampton Civic Hospital took the stand in court on Wednesday.
He echoed Hayani’s views, adding it’s not known how long spinal cord reflexes can persist after death.
“It is exceedingly uncommon for us to support anybody who has been declared dead for over 72 hours,” Healey told the court.
Taquisha’s case is relatively unchartered territory. There aren’t a lot of studies on what happens to people several days after they’ve been deemed brain dead.
“I am not aware that there is a good established science that a spinal cord reflex would not happen,” Healey said.
On Tuesday, Hayani said “there is no literature on how the body responds [to tests]” because they don’t conduct tests on brain dead patients.
Even the legal proceeding is new for some of the physicians involved.
“This is the first case I’ve been involved with that involves an injunction,” Healey told the court.
He said he believes McKitty meets the recognized definition for neurological determination of death and he doesn’t believe she is technically breathing.
“I would assert that the ventilation is doing the breathing,” he told the court.
We recommend that neurologically determined death be defined as the irreversible loss of the capacity for consciousness combined with the irreversible loss of all brain stem functions … including the capacity to breathe. — Canadian Medical Association Journal
Although brain death is a widely accepted definition of death in the developed world, Dr. Paul A. Byrne, the physician retained by the family, doesn’t believe it ought to be.
“There is no science behind brain death and one of the reasons it was invented was for organ donations,” he told the court.
Byrne said he wouldn’t declare somebody dead if her heart was still beating and they were still breathing — even with a ventilator.
Byrne, a neonatologist, is licensed to practice medicine in the United States. He retired several years ago and is not licensed to practice in Ontario.
He said he believes McKitty is “very much alive.”
It’s a view shared by her family.
“Our daughter is still alive,” McKitty’s father Stanley Stewart said. “She’s very hurt. She’s in a very serious conditions, but she is not dead.”
Her mother Alyson McKitty agreed.
“She is moving her entire body,” she told reporters outside the court house. “She isn’t just moving her lower half. She’s moving her head, her legs, her feet, everything,”
But McKitty’s medical records don’t necessarily reflect that she’s alive.
“I have not asked the nurses to [document her movements] and they typically wouldn’t document for somebody that had been declared dead,” Healey said.
When pushed by Hugh Scher, the lawyer for McKitty’s family, Healey conceded nurses continue to chart her heartbeat, EKG results and medications administered. He said her movements “are not being tracked by the nurses.”
“We think that Taquisha has died and the movements are not consistent with brain function,” Healey said. “The care team accepts that same premise. I don’t think that it would be within their comfort or scope to document continuously movements of spinal reflexes. They aren’t doctors and it requires judgment.”
He added that the case is taking a toll on staff, and nursing staff in particular.
“The effect of this case has been very troubling … I’m not making specific requests for documentation — or documentation that they wouldn’t do for other patients.”
The court heard McKitty recently started bleeding from her vagina, but Healey wouldn’t confirm if it was menstruation.
“We would not test for that,” he told the court. “There are no definitive tests, to my knowledge, to tell you if this is menstruation or not.”
Scher said finding the cause of the bleeding matters. He argued menstruation is a sign of brain function — something that Healey conceded.
Healey later added, “As part of the current Canadian guidelines [for the neurological determination of death,] I don’t have to check if menstruation is present because it doesn’t lead to the capacity of consciousness or the ability to breathe.”
Ontario Superior Court Judge Lucille Shaw still has to determine if she will accept Byrne’s evidence and testimony as an expert witness.
The hospital has declined comment on the case, citing the ongoing legal action and patient confidentiality. However, a spokesperson said all designations of neurological death are signed off by two physicians and assessed using recognized protocols and procedures.
The family has launched a GoFundMe campaign to help with legal costs, which they estimate have already reached about $80,000.
Court resumes on Thursday. .