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Posted on June 4, 2017 at 6:06 PM
In a sign of things to come, on June 2, Nevada 
Justice Pickering
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)).

The bill was a direct response to problems identified by the Nevada Supreme Court in the Aden Hailu case.  I discussed that case here and posted case materials here.

The UDDA requires that clinicians determine brain death in accordance with guidelines set forth by either the American Academy of Neurology or the Pediatric Section of the Society of Critical Care Medicine. The statute expressly identifies the guidelines by name: “Evidence-based Guideline Update: Determining Brain Death in Adults: Report of the Quality Standards Subcommittee of the American Academy of Neurology” and “Guidelines for the Determination of Brain Death in Infants and Children: An Update of the 1987 Task Force Recommendations.” 

Furthermore, recognizing that the guidelines might be updated, the statute preserves flexibility. It requires that clinicians determine brain death in accordance with the “subsequent revisions approved” by the guidelines authors.

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.

At least in Nevada, that variability should be eliminated by the new statute. By unambiguously identifying which guidelines are authoritative, the statute eliminates uncertainty over which medical standards are "accepted.”

Nevertheless, the new statute does not amend another separate UDDA requirement: that “for legal and medical purposes, a person is dead if the person has sustained an irreversible cessation of . . . all functions of the person’s entire brain, including his or her brain stem.”

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.” 

Again, at 29:00, Justice Pickering tentatively accepted that the AAN may be “accepted medical standards” but asked again: “But do they demonstrate irreversible cessation of all brain function including brain stem?"

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.  

"Though courts defer to the medical community to determine the applicable criteria to measure brain functioning, it is the duty of the law to establish the applicable standard that said criteria must meet."

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