Controversy Persists as States, Courts ‘Question, Push Back, and Challenge’ Brain Death Criteria
Ethicists must keep close tabs on changing legal landscape
Guidelines from the American Academy of Neurology (AAN) were recently endorsed by several organizations as a medical standard for determining brain death, despite a controversial Nevada Supreme Court ruling that casts doubt on this stance. Ethical implications include the following:
• the state legislature specified that the AAN guidelines are accepted criteria for determination of death by neurological criteria in adults;
• the case is only legally relevant as precedent in Nevada, but has been referred to in lawsuits in other states;
• state court rulings on brain death criteria continue to evolve.
Multiple medical societies recently endorsed guidelines from the American Academy of Neurology (AAN) as a standard for determining brain death.1 However, a controversial court ruling several years ago cast doubt on the criteria, with lingering effects.2
The case involved a 20-year-old Las Vegas woman, Aden Hailu, whose father sought a restraining order to stop doctors from removing her from life support after she was declared brain dead.
“The Supreme Court of Nevada suggested, though did not rule, that there are two problems with the way that U.S. clinicians measure brain death,” says Thaddeus Mason Pope, JD, PhD, who authored a recent paper on this topic.3 Pope is director of the Health Law Institute and professor of law at Mitchell Hamline School of Law in St. Paul, MN.
First, the court noted that the AAN criteria may not constitute the “accepted medical standards” required by the Uniform Determination of Death Act.
“The Hailu ruling had the potential to be very problematic for future determinations of death by neurological criteria,” says Ariane Lewis, MD, associate professor in the departments of neurology and neurosurgery at NYU Langone Medical Center in New York City. To prevent this, the state of Nevada updated the definition of death to specify that the AAN criteria are the accepted criteria for determination of death by neurological criteria in adults. “It remains to be seen whether other states will also update their definition of death in this manner,” says Lewis, who authored a recent paper on the topic.4
The Nevada court also suggested, though did not hold, that the medical criteria for brain death may not measure what the Uniform Determination of Death Act requires: irreversible cessation of all functions of the entire brain. “The legislature did not address this second problem noted by the court,” says Pope. “There may remain a gap between what law requires and what clinicians are measuring.”
More Frequent Objections
The Nevada Supreme Court decision already has been referred to in lawsuits in other states, including the ongoing medical malpractice case filed by the family of Jahi McMath.5
“There have been a number of cases of objections to determination of death by neurologic criteria in the past few years, both in the U.S. and Canada. I expect the frequency of objections will continue to increase,” says Lewis.
Only Hailu, and now McMath, address the question of accepted medical criteria. “Until the AAN and American Academy of Pediatrics [AAP] guidelines are acknowledged to be the accepted medical criteria in the definition of death in all states, objections like the Hailu objection will likely continue,” says Lewis. She recommends ethicists take the following steps:
• ensure that hospitals establish brain death policies that are confluent with the AAN and AAP guidelines to prevent false positive determinations;
• proactively create guidelines on management of objections to determination of death by neurologic criteria to ensure these cases are treated uniformly;
• if confronted with objections to determination of death by neurological criteria, they should discuss the appropriate steps to take with their hospital legal team and administration.
Notably, death by neurological criteria is legal death in every state (although it is not legal death for someone with a religious objection in New Jersey).
“Family permission is not needed to withdraw organ support after it is declared,” says Lewis. “But withdrawal of organ support over a family’s objections could lead to lawsuits, bad publicity, and controversy.”
Prevention of such conflicts is ideal. “Better communication with decision aids, and even family presence during brain death examination, correlates to higher consensus,” says Pope.
Time for Reassessment
The Nevada case makes it clear “that it is time for a large and public reassessment and reaffirmation of brain death criteria,” says Kenneth W. Goodman, PhD, FACMI, director of University of Miami’s Miller School of Medicine Institute for Bioethics and Health Policy in Florida.
Clearer guidelines and criteria would help to build trust and give grieving families confidence that their loved ones are indeed dead, says Goodman. Life-sustaining interventions can create doubt and confusion on this point, sowing the seeds for protracted ethical conflicts. “Improvements in our ability to sustain cardiopulmonary function continue to erode confidence in a 50-year-old consensus,” says Goodman.
At the heart of the issue is the public’s lack of confidence in neurological diagnoses. “It is heartbreaking that family members continue to interpret even spinal reflexes as evidence of cognition and interaction,” says Goodman.
Highly publicized court challenges serve to “upset the cart” for ethics consultants and committees, says Goodman: “If the courts are increasingly willing to question, push back, and challenge, we will need to track the legal environment more carefully.”
Such cases are a reminder that ethicists cannot afford to be complacent about brain death criteria. “We will, perhaps, need to adopt a more nimble and nuanced approach to that which we once took for granted,” says Goodman.
1. Lewis A, Bernat JL, Blosser S, et al. An interdisciplinary response to contemporary concerns about brain death determination. Neurology 2018; 90(9):423-426.
2. In re Guardianship of Hailu, 131 Nev. Adv. Op. 89 (Nov. 16, 2015).
3. Pope TM. Brain death forsaken: Growing conflict and new legal challenges. Journal of Legal Medicine 2017; 37:3-4:265-324.
4. Lewis A. Contemporary legal updates to the definition of brain death in Nevada. JAMA Neurol 2017; 74(9):1031-1032.
5. Winkfield v. Rosen, No. RG15760730 (Alameda County Sup. Court, Calif.).
• Kenneth W. Goodman, PhD, FACMI, Director, Institute for Bioethics and Health Policy, Miller School of Medicine, University of Miami (FL). Phone: (305) 243-5723. Email: [email protected].
• Ariane Lewis, MD, Associate Professor, Division of Neurocritical Care, Departments of Neurology and Neurosurgery, NYU Langone Medical Center, New York City. Phone: (646) 501-0243. Email: [email protected].
• Thaddeus Mason Pope, JD, PhD, Director, Health Law Institute/Professor of Law, Mitchell Hamline School of Law, St. Paul, MN. Phone: (651) 695-7661. Email: [email protected].
Guidelines from the American Academy of Neurology were recently endorsed by several organizations as a medical standard for determining brain death, despite a controversial Nevada Supreme Court ruling that casts doubt on this stance.
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