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Medical Justice

Making healthcare safe for doctors


Is Death in the Eye of the Beholder

04/02/18 9:47 AM

It’s been said the only thing certain in life is death and taxes.

Tax rates vary by state.

And, what may come as a surprise to many doctors, the definition of death (or how someone is declared dead) is not uniform across all 50 states.

A little background.

For centuries, death was straightforward. It was the irreversible cessation of cardiopulmonary function. If heart stopped and lungs failed and there was no fix; you were dead.

In 1959, doctors first described death by neurological criteria. In 1968 there was a medical consensus that specific brain injury qualified as death. 1

In the 1970s, many states used the medical consensus on brain death as legal criteria for death. In 1981, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research proposed a model statute. It proposed determining death by either (a) “irreversible cessation of circulatory and respiratory function”; or (b) “irreversible cessation of all functions of the entire brain, including the brainstem.”

This model statute (Uniform Determination of Death Act or UDDA) was adopted by many legislatures. And for those states that have not codified the model statute including brain death as death, the courts have filled in the gaps. Brain death is legally established as death across the US.

But states vary in how brain death is determined. For example, in California, Florida, and Kentucky, brain death must be determined by two physicians. Alabama, Georgia, and Virginia require only one. Connecticut used to require two physicians. Now one will suffice.

And the type of physician making the call varies by state. Virginia requires board certified or board eligible specialist in neurology, neurosurgery, or critical care medicine. Florida requires conclusion by the treating physician plus board certified or board eligible specialist in neurology, neurosurgery, internal medicine, pediatrics, surgery, or anesthesiology. California, Illinois, and New York open the field to any licensed physician. Alaska, Georgia, and Michigan permit a registered nurse. Connecticut and Georgia allow a physician’s assistant to make the determination. Cross any state border, and the rules can change.

Most states require that brain death be assessed in accord with “acceptable medical standards,” “ordinary standards”, or “usual and customary standards.” This allows for broad variation in interpretation. Remember, these are the same standards used in adjudicating contentious medical malpractice cases. If the answers were straightforward, one would never see two sides battling it out.

In 2010, the American Academy of Neurology issued new guidelines to remove ambiguity and establish more uniformity.

Which brings us to the case of Aden Hailu in Nevada. Nevada is/was one state that adopted the UDDA in statute. To refresh:

For legal and medical purposes, a person is dead, if the person has sustained an irreversible cessation of: (a) Circulatory and respiratory functions; or (b) All functions of the person’s entire brain, including his or her brain stem.

The UDDA never got into the details of how doctors would determine irreversible cessation of all functions of the person’s entire brain, including his or her brain stem. For good reason. Like all things on medicine, things change. So, the Nevada code left it as “A determination of death made under this section must be made in accordance with accepted medical standards.”

On April 1, 2015, 20 year old Aden Hailu presented to St. Mary’s Regional Medical Center in Reno with abdominal pain. She had an exploratory laparotomy and appendectomy. Right after surgery, she went into shock and suffered severe anoxic brain injury.

On May 28, 2015, clinicians performed an apnea test over objections by the patient’s father. She was pronounced brain dead by neurological criteria.

On June 2, 2015, clinicians at St Mary’s told the patient’s father they intended to withdraw life support.

The father filed an emergency motion with court restraining the hospital from discontinuing care.

On June 18th, at the hearing, the father and hospital reached an agreement to continue support until July 2nd, allowing the father time to obtain an independent neurological opinion. So, the court dismissed the motion.

The father failed to follow through.

On July 1, 2015, the father filed another motion “Order Authorizing Medical Care, Restraining Order, and Permanent Injunction.”

Two hearings were held. July 2 and July 21, 2015. The father introduced evidence from three experts. No experts were neurologists. His plan was to transfer his daughter to Las Vegas.

The hospital countered with evidence by three experts, including a neurologist.

The neurologist testified he used the American Academy of Neurology (AAN) guidelines to determine whether Hailu was brain dead. All three measures were satisfied. The patient was in a coma and unresponsive. There was no brainstem activity as determined by brainstem reflexes. Third, Hailu could not breathe unassisted as per the apnea test. A second physician, a critical care specialist testified AAN criteria were followed “by the book.”

On July 30, 2015, the court ruled in favor of the hospital. But that did not resolve the matter. It granted the father’s injunction to prevent removal of life support pending appeal to Nevada Supreme Court.

The Nevada Supreme Court reversed the ruling.

The core question being addressed was whether the American Academy of Neurology (AAN) guidelines satisfied the legal requirements for death under the Nevada UDDA. Apparently, the lower court never analyzed whether the AAN guidelines were “accepted medical standards.” Even if AAN guidelines were accepted medical standards, the lower court did not examine whether the guidelines measure what the UDDA demands; namely irreversible cessation of all functions of the entire brain. To make matters even more confusing, the Supreme Court concluded that accepted medical standards might not be AAN guidelines. It might be the Harvard criteria, which requires ancillary and confirmatory testing such as EEG.


The Supreme Court remanded the case back to the lower court to make additional findings of fact, placing the burden of proof on the hospital to establish the legal sufficiency of the AAN guidelines or otherwise establish that Hailu was dead. More specifically, St. Mary’s had to establish that the AAN guidelines (a) measure “irreversible” cessation of “all” functions of the “entire” brain; and (b) are considered accepted medical standards.

Before the lower court could weigh-in, Hailu’s heart stopped and she could not be revived.

On January 4, 2016, Hailu was declared dead defined by irreversible cessation of circulatory and respiratory functions.

The brain death issue was moot. Note, the legal process was still in play 6 months after the issue arose.

In June 2017, the Nevada Legislature amended the state UDDA to address problems identified by this case.

The updated UDDA requires clinicians determine brain death in accordance with formal published guidelines set forth by either AAN or the Pediatric Section of Society of Critical Care Medicine. The statute also takes into account “subsequent revisions approved by the guidelines authors.” The statute eliminates ambiguity as to whether these guidelines are accepted medical standards.

So, the question of whether brain death will be determined by AAN guidelines or Harvard criteria, for example, has been answered by at least one state legislature. So, one bone of contention has been set straight.

Still, I doubt this will be the last word on the matter. Here’s why. One of the justices who decided the Supreme Court case asked whether AAN guidelines demonstrate “irreversible cessation of all brain function including the brainstem.” In other words, a remaining question is whether the medical standards match the legal standards. The updated Nevada statute leaves that potential conflict unresolved.

Stay tuned.

What do you think? Use the comments box below to share your thoughts.

The prior extensive history and case summary from the excellent article: T. Pope. Brain death forsaken: Growing conflict and new legal challenges. Jl Legal Medicine. 37: 265-324. (2017)

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Posted by Medical Justice | in Legal | 8 Comments »
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Gordon Webb
Gordon Webb

A PET scan may be the only way to establish “irreversible cessation of all brain function including the brainstem.” by demonstration total lack of function.

Scott Lederhaus

Being a neurosurgeon in California it has been known that only two physicians are required to determine brain death in our state. However, years ago we adopted that it still required two physicians, but one of the physicians had to be either a neurosurgeon or a neurologist. In addition, a supplemental test needed to be performed, generally a nuclear medicine brain flow study. By doing this it is much less likely that a primary care doctor would be involved in the process who may not be able to define brain death. To avoid uncertainty I believe this is the best… Read more »


I believe Julius Goodman pioneered literature strongly suggesting that proof of absent cerebral blood flow by any means (nuc med, angiography, and in modern days possibly CT angiography and/or perfusion) equates brain death. I have used this means for 20 years now. Even the neurological exam becomes unnecessary, as in the case of barbiturate coma, if cerebral blood flow is absent. Interpretation of neurological findings by non neurological physicians is a dangerous method that has been known to result in false declaration of brain death. Furthermore, the apnea test can result in precipitating cardiorespiratory instability, and as such, I rarely… Read more »


JAMA. 1969 Sep 22;209(12):1869-72.
Determination of brain death by isotope angiography.
Goodman JM, Mishkin FS, Dyken M.

JAMA. 1977 Aug 29;238(9):966-8.
Confirmation of brain death at bedside by isotope angiography.
Goodman JM, Heck LL.

Neurosurgery. 1985 Apr;16(4):492-7.
Confirmation of brain death with portable isotope angiography: a review of 204 consecutive cases.
Goodman JM, Heck LL, Moore BD.

Carla H Schlissel, DDS
Carla H Schlissel, DDS

Thank goodness, as a dentist, I don’t have to deal with this. Oy.

Charles Amenta III MD
Charles Amenta III MD

Jahi McMath was declared brain dead in California. She has been kept alive by a ventilator out of state for four years and is now menstruating. Something seems to be perfusing her brain. This type of ambiguity is not helpful to say the least. There is a huge article in the NewYorker that seems to make the claim that she is responsive, too.


The legal arena seems to be a very poor and very slow place to decide medical questions. These are religious and medical questions, that should not be subject to the legal arena, because instead of greater clarity it leads to greater confusion. In addition it is or should be the family’s or the next of kin that decide these issues. If there is a conflict with the family and the physicians, the patient can be moved to a lower level of care and the family can pay for that care out of pocket since the insurance company ie Medicare or… Read more »

Joseph Horton MD
Joseph Horton MD

Agree with retiredmd: it’s not uncommon for a family bringing in a hopeless situation to insist that everything possible be done for grandma. And after a full assessment, it becomes clear that yes indeed, we can do x, y, and z. And here’s the price tag, which is not covered by insurance, and will have to be paid up front. Family huddles and reaches a new consensus that typically begins with the words, “she’s led a very full life….” Even irrational people may reach different conclusions based on who’s going to foot the bill. Unless, of course, the legal system… Read more »