Introduction: Controlled donation after circulatory death determination (cDCDD) has been debated for a long time in the bioethical literature. More recently, especially the use of normothermic regional perfusion (NRP) has been the subject of much debate. Questions have been raised about the vital status of the donors, but also about whether physicians cause the death of donors when they clamp arteries and prevent reestablished blood flow from reaching the brain. This latter question was notably raised by the American College of Physicians in 2021, when they issued a statement of concern about the use of ‘NRP-cDCDD’.
But what does it mean to cause death? There are obvious cases where we have no doubt that death was caused, like when one agent shoots and immediately kills another agent. We also find cases where we used to believe that death was caused, like cases where treatment or artificial nutrition or hydration is withdrawn but where discussions of special cases, like the cases of Nancy Cruzan or Karen Ann Quinland, altered our beliefs about when physicians cause the death of a patient.

Method: By applying the concept of causation found in the law, I examine whether physicians can be said to cause the death of patients in cDCDD, assuming that donors are not dead when organs are procured.

Results: The concern that physicians cause the death of donors when NRP is applied in cDCDD, is the result of a simplistic account of causation – the idea of cause-in-fact. However, cause-in-fact on partly constitute the concept of causation in the law. If a more nuanced concept of causation is applied – as it typically would be in law – we find that physicians do not cause the death of donors in NRP-cDCDD.

Conslusion: By applying the concept of causation as it is used in the law to the concern that physicians cause death of donors in NRP-cDCDD, it becomes apparent that this concern is unwarranted. Even if we have to accept that donors in cDCDD protocols are not dead at the time of procurement, physicians do not cause their death for or by organ procurement. Thus, NRP-cDCDD respects the dead donor rule independently of the vital status of the donor.