This article appeared in the February 2008 edition of the Catholic Medical Quarterly

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Brain Death: is it a Mirage?

The Rocco Barlaba Case

 Peter Doherty

In June 1994 Rocco Barlaba, aged 10, fell off his bicycle on his way home from school in Turin and was admitted subsequently to the intensive care unit at the Martini Nuovo Hospital in Turin on 8th June 1994. On that very afternoon he was considered to be in an irreversible coma and a request was made for the donation of his organs. His family was strongly opposed to the explant and the whole population of the district in which he lived united in protest to stop the surgeon’s knife. Anxious friends and relatives publicly denounced the aggressive attitude of the hospital staff towards them.

Professor Gorgerino, Head of Intensive Care at the hospital and also Head of the local organ donation association at the time, was interviewed by the press about Rocco during a convention concerning organ transplantation which was taking place at the Torino Esposiziome on 11th June 1994. That same evening the case was reported in the news and next day it appeared widely in the national papers

The professor and other doctors declared that they had the right to carry out an autopsy on ‘brain dead’patients (but still with a beating heart) presumably as the patient had been declared dead and it would enable them to bypass the law and overcome the parent’s veto.  A strong statement was issued to the media centred on ‘four people have been sentenced to death due to this refusal’   Naturally this caused great worries to the parents and they retaliated by stating ‘the doctors were persistent. They asked us for the organs four times  and told us in a threatening manner that if the magistrates were to order an autopsy, organ removal would be possible without our consent’

By this time the case had become a national issue. Professor Gorgerino then confused the issue with the media by misquoting article 10 of the DPR 409 Act of 1977 which regulates organ removals thus casting doubts on the effectiveness of opposition. But it is quite clear in Italian Law that neither judges nor doctors can deny or refuse the individual’s right to oppose organ transplants. Neither can they impose autopsies on non-donors who are on ventilators.

The intervention of the Lega Nazionale Contro la Predazione di Organi e le Morte a Cuore Battentea  (National League against the transplanting of organs from the dead with beating hearts)  was unavoidable. The organisation sent an appeal both to the Intensive Care unit and the Hospital Director.

Also to the Public Prosecutors office which read ‘ Carrying out an autopsy and enforced organ removal on a patient on a ventilator with a still beating heart by citing article 10 of the DPR 409/77 is fraudulent and is illegal because art. 10 refers to post mortem examinations  according to Law 83 of 1961 ( before the definition of brain death existed) .. this type of enforced autopsy refers to autopsies carried out on patients who have died from cardiac arrest and respiratory failure. Extending art. 10 to cover those in so-called irreversible coma is anti- constitutional, illegal and criminal’.

By this time the legal establishment had taken up the issue with extreme vigour.

The National league and its President were cited for damages to the reputation of Professor Gorgerino almost two years later and it was followed by countless hearings and testimonies over the subsequent five years. 

Despite the fact that the professor admitted he had carried out an autopsy on a patient with a beating heart in 1987 both the National League and its President were ordered to pay 30 million lire plus expenses. This was because of their denouncements of the work of doctors.

The case then went to the Court of Appeal with the main appeal being that Rocco was declared ‘brain dead’ without the necessary ascertainment held compulsory by Law.

The doctors had threatened to carry out such an autopsy on a patient with a beating heart without sufficient examination presumably on the afternoon of his admission.

The Appeal court decided that ‘the reason that a team was not on hand to declare Rocco to be brain dead was because this was not necessary as the transplantation had not begun’.  But this interpretation is contrary both to Italian Law and the information contained on the web site of the Ministry of Health.

The court rejected the appeal and endorsed the first judgement.(published 16/05/2006)

Compensation now stands at 43,830.60 (Euros).

It is therefore unavoidable that an appeal to the Supreme Court must be made with the aim of asking for the sentence to be quashed with the decision that neither the League nor the President, Nerina Negretto, owe anything to Professor Gorgerino.

We wish them luck in this endeavour and admire them for their persistence. The case outlines the problem of ‘brain death’ as a sufficient diagnosis of death and one which  has considerable resonance in this country