Most of the time, the telemedicine-related questions I answer are variations on old themes—the application of a given legal principle to a new fact pattern, or perhaps in a new jurisdiction. Occasionally, however, someone poses a question I have not had occasion to think about before. One such: whether Virginia permits a doctor to declare death at a distance, using telemedicine technology.
The relevant Virginia authority is Va. Code Ann. § 54.1-2972, When person deemed medically and legally dead; determination of death; nurses’ or physician assistants’ authority to pronounce death under certain circumstances. It provides, in pertinent part:
A. A person shall be medically and legally dead if:
1. In the opinion of a physician duly authorized to practice medicine in the Commonwealth, based on the ordinary standards of medical practice, there is the absence of spontaneous respiratory and spontaneous cardiac functions and, because of the disease or condition that directly or indirectly caused these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation would not, in the opinion of such physician, be successful in restoring spontaneous life-sustaining functions, and, in such event, death shall be deemed to have occurred at the time these functions ceased; or
2. In the opinion of a physician, who shall be duly licensed to practice medicine in the Commonwealth and board-eligible or board-certified in the field of neurology, neurosurgery, or critical care medicine, when based on the ordinary standards of medical practice, there is irreversible cessation of all functions of the entire brain, including the brain stem, and, in the opinion of such physician, based on the ordinary standards of medical practice and considering the irreversible cessation of all functions of the entire brain, including the brain stem, and the patient’s medical record, further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions, and, in such event, death shall be deemed to have occurred at the time when all such functions have ceased.
As you might guess, there is no explicit answer to the question posed. The statute quoted has been cited in only two cases, neither of which involved a declaration of death by a distance care provider. Virginia’s Board of Medicine has published a Guidance document on Telemedicine, but it is silent on the question presented.
So, we must rely on the words of the statute.
Consider A1 first. A physician licensed in Virginia, no matter where he may be located, is “duly authorized to practice medicine in the Commonwealth.” That clears the first hurdle. The second is higher: “based on the ordinary standards of medical practice, there is the absence of spontaneous respiratory and spontaneous cardiac functions…” It may be difficult for the distance care doctor to tell whether the patient has “spontaneous cardiac function;” it may be a little easier, though perhaps still not necessarily obvious, to ascertain from a distance that the patient lacks “spontaneous respiratory” function. If, however, “based on the ordinary standards of medical practice,” the distant doctor can make those determinations, it appears that Virginia would authorize him to declare the patient dead if “because of the disease or condition that directly or indirectly caused these functions to cease, or because of the passage of time since these functions ceased, attempts at resuscitation would not, in the opinion of such physician, be successful in restoring spontaneous life-sustaining functions…”
Note the language “based on the ordinary standards of medical practice.” Although the General Assembly did not favor us with an explanation, I take that text to mean that the physician declaring death through telemedicine technology will likely be held to the same standard of care as a doctor doing so in the usual manner: after an in-person evaluation. Still, my answer to the question is yes, so long as the doctor making the declaration satisfies all the tests Virginia law imposes. On the other hand, if the physician cannot determine that spontaneous cardiac and respiratory function are missing, or he can, but he cannot tell whether “attempts at resuscitation” would be futile, then he cannot in conformity with Virginia law make the declaration.
Va. Code Ann. § 54.1-2972 also makes provision, in certain circumstances, for declarations of death by RNs or PAs. Where at the time death is suspected a nurse or PA is in the patient’s physical presence, the doctor relying on A1 might be comfortable entrusting to such a mid-level the determination whether spontaneous breathing and circulation were present. There appears to be no legal barrier to doing so.
So, the question turns on whether the distance care physician, with or without help from an on-site mid-level, deems himself able to meet the statutory criteria. As a practical matter, unless the doctor knows the case well, I imagine that, most of the time, as a precaution, the doctor would err on the side of ordering CPR to be performed even if the chances of success appeared to be slim. If he did so, of course, the question would become moot.
Let’s turn, then, to A2: A physician wishing to invoke this provision would, of course, not only have to be licensed, he’d have to be at least Board-eligible (i.e., have completed post-graduate training) in “neurology, neurosurgery, or critical care medicine.” A physician highly qualified in other ways but lacking these credentials would get no help from section A2. The next question is whether this specialist could make a determination, from a distance, that “irreversible cessation of all functions of the entire brain, including the brain stem” had occurred. As a non-neurologist, non-neurosurgeon, and non-intensivist, I hesitate to say whether, using telemedicine technology, it would be possible for a specialist in one of those fields to make the needed determination. I tend to doubt it, but I defer to practitioners in those disciplines. In the unlikely event that an EEG were possible to perform, that might change things, but I have to guess that such a situation would be highly unusual. Any place able to do EEG testing would likely have a neurologist available. Moreover, as with A1, section A2 provides that the determination of death must be “based on the ordinary standards of medical practice.” Again, I take this to mean that the doctor declaring death from a distance will likely be held to the same standard as one at the bedside. My guess is that few physicians advised about the requirements that in section A2 Virginia imposes would care to assume the burden of making the declaration.
Assuming for the sake of analysis that I am wrong, however, nothing in the text of the statute expressly requires that the physician be in the physical presence of the patient. The third criterion is the need to examine the chart. Again, assuming that the chart (electronic or otherwise) can be made available to the doctor, this test could presumably be met as well. Finally, if the distance care neurologist/neurosurgeon/intensivist can ascertain that “further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions,” he could, presumably, declare the patient dead, even though he is not physically present.
A higher level of confidence in these conclusions would be justified if an actual statute, regulation, or case that says they are right. We don’t have that. So, though I think the foregoing is a reasonable interpretation of such law as Virginia has on this subject, and though I also know of no legal authority that says I am wrong, and though I think my reading of the authorities is more logical than one leading to the opposite conclusion, certainty is more than I can deliver. It strikes me as highly unlikely that, in writing this statute, the General Assembly ever asked itself whether a telemedicine physician could, using the technology available to him, declare death. My further guess is that few if any state legislatures have thought about it, either.
A telemedicine physician relying on distance care technology can probably declare death lawfully in Virginia, so long as he satisfies the criteria spelled out in Va. Code Ann. § 54.1-2972.