Yechezkel Nakar, 68, had a vascular condition and had previously suffered a stroke. He wasn’t feeling well in April and went to the emergency room at New York-Presbyterian. He was admitted and took a turn for the worse as the weeks went on, suffering a brain bleed, according to court papers.
Over the objections of his devout Orthodox Jewish family, doctors declared Nakar brain-dead and on May 31 issued a death certificate for him, wife Sarah charges in a Brooklyn Supreme Court filing.
But instead of sending Nakar to a funeral home, they sent him by ambulance to Maimonides Medical Center, where the “dead” man is still on a respirator and being treated weeks later, his family said.
“The man is still living, and the family is distraught at the whole situation,” their lawyer, said.
They want a judge to withdraw Nakar’s death certificate so they can seek insurance reimbursement for his current treatment.
Insurance companies won’t pay to treat a dead man.
The more serious issue here is the religious and ethical question of when a human being can be declared dead, according to the experts.
Attorney Mark J. Kurzmann, who initially consulted on the case, said, “Something went wrong here, and it’s very, very unfortunate.”
“To the best of my knowledge, it’s the first time it’s ever happened,” Kurzmann said of the effort to have a death certificate rescinded.
Rabbi J. David Bleich, an expert in biomedical ethics who is also a professor of Jewish law at Cardozo Law School, reviewed Nakar’s case. He told the new York Post that a patient who is brain-dead but whose heart is still beating can typically die within three to 12 days, even while connected to a respirator.
Another observer, GMU law professor Michael Krauss, said New York-Presbyterian’s own actions undermine their decision to issue the death certificate.
“It’s extremely unusual that they declared the man dead if the family objected to the cessation of life support,” he said.
Meanwhile, the patient’s wife, Sarah, who objected to taking her husband off life support for religious reasons, filed a lawsuit against the hospital late last week. She is asking the court to rescind the death certificate so she can file insurance claims for his current treatment.
“The man is still living, and the family is distraught at the whole situation,” their attorney, Morton Avigdor, told the Post.
Nakar is still alive, “I assure you, there is room for error in everything, including neurological criteria,” David Bleich told the post.
Health care attorney Harry Brown, who consulted on Nakar’s case observes that historically, as well as under Jewish law, a person was considered dead when their heart and lungs stopped functioning.
However, medical advances have raised the question of whether a brain-dead patient with a still-beating heart is legally and medically “dead,” Brown said.
“The definition of death is not just a physiological one, it has cultural and religious implications as well.”
The law professor added: “In 40 years of being a health-care lawyer, I’ve never heard of . . . a situation with a death certificate issued and the patient is still alive.”