In a sign of things to come, on June 2, Nevada
amended the Uniform Determination of Death Act (UDDA). Expect other states to make similar amendments soon. (An Act Relating to the Determination of Death, 2017 Nev. Acts ch. 315 (A.B. 424) (effective Oct. 1, 2017)).
Explicitly referencing specific guidelines eliminates the need to determine whether these guidelines qualify as “accepted medical standards.” This has been a significant problem. Since adoption of the UDDA in the early 1980s, there has been significant variability in the brain death determination guidelines followed by hospitals across the United States.
Particularly since this requirement is in a separate subsection of the statute, challengers like the Hailu family may contend that this is an independent requirement that the guidelines still fail to satisfy.
This is not a merely theoretical concern. Notably, while much of the oral argument in the Hailu case focused on whether the AAN were “accepted medical standards,” at least Justice Pickering was very concerned about a separate question. At 24:00, she notes that the statute “also specifies . . . The statute that is giving me pause is 451.007(1)(B) that speaks in terms of “irreversible cessation of all functions of the person’s entire brain. I am struggling to understand whether the AAN standards meet that.”
Justice Pickering’s concerns were not allayed. This is especially significant, because she wrote the final published Supreme Court opinion. In the opinion, Justice Pickering noted that there were two unanswered questions. The first question is whether the AAN are “accepted medical standards.” The new statute answers that question.
The second unanswered question is “whatever their medical acceptance generally . . . whether the AAN guidelines adequately measure the extraordinarily broad, standard laid out by NRS 451.007, which requires . . . irreversible cessation of all functions of the . . . entire brain.” The new statute does not answer this second question.