Let me start by apologizing for my little outburst there. I will attempt to explain some of these terms and conditions as best I can from the perspective of a medical professional. I am not a medical attorney nor am I an expert on medical law, but as someone that has more than a laymanís grasp of these concepts I will attempt to explain and clarify.
First, the diagnosis of brain-death is a medical diagnosis. A doctor is stating that in their opinion the patient has the diagnosis of brain-death. A medical diagnosis is not a legal mandate or statement. So because a person is considered brain dead by a physician does not make them legally dead. A pronouncement of death by a physician changes the personís legal status from living to dead, at this point the person is now considered to be dead by legal standards. The doctor is not making a medical diagnosis but a legal pronouncement. He is, quite literally, changing the personís legal status. As outlined by the state this person meets the criteria to the best of the physicianís knowledge and he feels comfortable making a legal pronouncement of death. Do note that a physician is not obligated to declare anyone dead.
So here we have a common misconception of medical diagnosis versus legal status. Hopefully that clears up a couple of things. I do think some confusion comes about because people see brain-dead as a diagnosis and then see brain-death as criteria for actual death, then simply assume the two are the same. This is not the case. Here the physician has given the diagnosis of brain death but has not declared death.
The second point of contention I believe comes with a very complex and ill understand concept called care. When a medical professional or lawyers talk about care this is actually a legal term and concept. There are different levels and types of care. For instance nursing care versus medical care, critical care versus emergency care, hospice care versus intensive care. These are all levels and types of care that have different implications and requirements. A patient has to be transitioned through each level of care by a doctorís order. Also certain personal can only give certain levels of care as defined by law and hospital protocol. Nurses can only give nursing care, doctors give medical care (which tends to also cover nursing care) and so on, so forth.
So now we have established the concepts of diagnosis versus legal declaration and also the concept of care as it pertains to levels and types. Now the question about giving a deceased person care. A deceased individual cannot receive medical care as this is actually illegal, as the judge pointed out. In order for a body to have medical procedures performed on it after death there has to be consent by the person, making them a cadaver for the purposes of medical training and experimentation. Nursing care follows a similar standard whereby a nurse cannot give nursing care to a deceased, as their level of care is given to the living. So once a legal definition of ďdeadĒ is given to a person these renders them legally ineligible for medical and nursing care. Doctors and nurses are not able to give post-mortem care, because this is another discipline and another type of care. There are legal steps regarding the handling and disposal of bodies. Nurses and doctors are trained in wrapping the body and preparing the body for transfer to a funeral home or other location, but not in actual care of the deceased body. This is why a hospital will place a body into a morgue for removal by a funeral service which has morticians, those able to give post-mortem care, in their employ. Note also that the transition from one form of care to another still requires the physician's consent, a declaration of death by the physician.
So the physician did not ignore the condition of the patient as brain-dead, but did not make a legal declaration of death. I hope this helps convey the reason why a dead person cannot be a patient and why nursing/medical care cannot be extended to a deceased person. This is more than simple procedure or protocol, but law that extends into licensing boards and federal territory.
Hopefully Sabby that satisfies your question because if not then I am at a loss for what else to explain.
Alright, now in regard to the safe harbor question.
As I have already laid out that a medical diagnosis is different than a legal pronouncement. The physician is able to give their medical diagnosis without fear of legal reprisal unless of course that medical diagnosis leads to some sort of negative impact, but that is another conversation. Now the safe harbor ruling that you are making reference to protects the doctor if, for instance, he declares a patient deceased that according to all medical examination and assessment meets the criteria for death as outlined by the state. Yet if the doctor declares death, removes life support and the patient exhibits spontaneous respiration but then passes away soon after where the life support would have kept them alive then the physician is not liable. The patient meets all criteria so far as the physician could determine.
The safe harbor rule would not apply to a physician that violated the rights of next of kin to continue medical treatment. A physician may declare someone deceased but if the family states that they do not want to withdraw medical care and to continue treatment then the physician is not able to change the personís status to deceased. Essentially the family is refusing to transition their loved one to a different level of care, which is allowed. The safe harbor rule would also not apply if the physician knowingly violated a state law. As seen here the hospital understood the law to state that they were unable to transition the patient to a level of care whereby life support could not be maintained, death. So a doctor cannot give pronouncement of death because the state states he may not.
Essentially the judge in this case was saying that the hospital is mistaken and ruled her to be in fact dead, so the physician is able to declare her legally dead and thus transition her to another level of care. I do hope that through this brief explanation there can be an appreciation for the complexity and ambiguity a physician and hospital faces with these sorts of cases.