Ontario family asks court for more time to conduct tests on brain-dead woman

BRAMPTON, Ont. — Movements made by a 27-year-old Toronto-area woman declared brain dead last month are nothing more than a reflex and should not be mistaken for signs of life, the doctor who was in charge of her care told a court Tuesday.

Dr. Omar Hayani said he followed the national standard in assessing Taquisha McKitty’s neurological function and declaring her brain dead after her condition deteriorated following a drug overdose.

“The presence of spinal reflexes does not affect my determination of brain death,” he told a Brampton, Ont., court.

McKitty’s family is challenging the finding and asking the court for more time to conduct medical tests, which would include filming her for 72 hours to examine her movements.

A series of tests, including blood tests for thyroid hormones, has already been conducted after the family obtained a temporary injunction to keep McKitty on a respirator while the court heard her case.

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During cross-examination, the family’s lawyer, Hugh Scher, repeatedly asked the doctor why these tests had not taken place before McKitty was deemed brain dead.

He suggested the presence of certain thyroid hormones in McKitty’s blood could signify some level of brain function remains.

The tests were not required under Canadian medical guidelines for determining brain death and would have been irrelevant and “clinically not helpful” in McKitty’s case, Hayani replied.

Nor is there any medical literature on what the presence of those hormones means in someone who is brain dead, he said.

When asked why no one had filmed McKitty to better monitor and assess her movements, Hayani said it was not the standard of care and would contravene a hospital policy meant to protect the privacy of patients and staff.

Hayani said he had not witnessed McKitty’s movements himself but they had been described to him by other doctors and nurses and found to be reflexes.

“It’s something I’ve seen many times in the past,” he said.

An American doctor serving as the family’s expert witness told the court that McKitty’s movements “indicate that Taquisha is alive and not a dead body.”

Dr. Paul Byrne also testified he believes brain death is a concept invented in order to facilitate the collection of organ donations. He stressed that he would not declare someone dead because their brain ceased to function.

“The beating heart is indication that there can be circulation going on and I don’t think that a patient should be declared dead as long as there is life in that patient,” he said.

Erica Baron, who represents Hayani, said that what constitutes life is the crux of the case.

“Would you agree that there is a respected opinion in the United States that the cessation of brain function constitutes death?” she asked.

“Yes,” Byrne said. He then acknowledged that it is also considered death under U.S. law and was questioned on an article he co-authored advocating for such laws to be repealed.

The hearing is scheduled to continue Wednesday and is slated to hear from several other doctors.

Paola Loriggio, The Canadian Press