Posted on December 1, 2019 at 12:19 PM
Must clinicians obtain consent to perform brain death tests? Over the past few years, courts and legislatures across the country have answered this question in disparate ways.
For example, in Montana, Kansas, and California courts held that clinicians could not perform brain death testing without family consent. On the other hand, a Virginia court held that clinicians may perform brain death testing without family consent. A new Nevada statute says the same thing.
Like Nevada, New York law also says that consent is not required. The relevant DOH regulation states "The facility must make diligent efforts to notify the patient’s Surrogate Decision-maker that the process for determining brain death is underway. Consent need not be obtained . . . ."
Nevertheless, a December 12, 2019 hearing is scheduled in Orange County Supreme Court, NY in the case of Marina Blagodar. Her mother will not consent to testing. So, the hospital has asked the court to appoint a guardian from whom they can obtain consent.