In re guardianship of Hailu: The Nevada Supreme Court casts doubt on the standard for brain death diagnosis

On April 1, 2015, Aden Hailu, a 20-year-old woman, attended St. Mary’s Regional Medical Center in Reno, Nevada, complaining of abdominal pain. During an exploratory laparotomy, she suffered an anoxic brain injury and remained in a coma. The hospital conducted three electroencephalogram (EEG) tests showing continued higher brain function in the two weeks following surgery. Later, the hospital performed brain-stem function tests, including an apnea test, and determined brain death without performing a confirmatory, repeat EEG. When Hailu’s father refused to consent to the removal of life support and sought judicial relief, the District Court held that St. Mary’s properly followed the American Academy of Neurology (AAN) guidelines for determining brain death and refused to grant a restraining order against the hospital. However, on appeal, the Nevada Supreme Court, in a November 16, 2015, decision,¹ held that it is not clear that the AAN guidelines are “accepted medical standards” under Nevada’s Uniform Determination of Death Act (UDDA). ²

Nevada’s UDDA has identical content to the UDDA ³ model legislation that resulted from the 1981 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. All 50 states have adopted this standard, with a few states incorporating some variations. The Act defines death as either (1) the irreversible cessation of circulatory and respiratory functions or (2) the irreversible cessation of all functions of the entire brain, including the brain stem. It does not specify how brain death should be diagnosed, but merely states that “a determination of death must be made in accordance with accepted medical standards.” ³ The most likely candidate for such standards is the AAN guidelines, which neurologists and academics frequently cite as the most appropriate method for brain death determination.^4,5 However, the Nevada Supreme Court’s decision casts doubt on the appropriateness of the AAN guidelines and leaves the neurology community without clear criteria.

During Hailu’s father’s July 2, 2015, application before the District Court for a temporary restraining order to prevent the hospital from ceasing life-sustaining treatment, Dr. Aaron Heide testified that the AAN guidelines are the accepted medical standard in Nevada and that he applied them appropriately in Hailu’s case. Based on this evidence, the District Court denied the application because the AAN standards for determining brain death were properly employed. However, the Nevada Supreme Court held that the lower court erred in failing to determine whether the AAN guidelines are accepted medical standards and whether they meet the UDDA requirement that there be “an irreversible cessation of all functions of a person’s entire brain, including the brain stem.” ³

In reviewing the history of the Nevada Act, the Supreme Court noted that the legislature was particularly concerned with ensuring that a declaration of brain death would not occur if there was any evidence of brain function, no matter how minimal. The Court also found that although most hospitals and physicians rely on the AAN guidelines for brain death determinations, hospital policies concerning brain death diagnoses vary so greatly that the guidelines cannot be considered an accepted medical standard. Instead, the Court suggested that the so-called Harvard criteria for brain death may be a more appropriate standard. The Harvard criteria require unreceptivity and unresponsivity to painful stimuli, a lack of any spontaneous movement or respiration, no reflex responses, and two confirmatory flat EEGs that are performed 24 hours apart. In contrast, the AAN guidelines do not require a confirmatory EEG test, even though the AAN’s own brain death study found that 84% of actual brain death determinations include EEG testing. ⁶ Furthermore, the AAN guidelines merely require subsets of brain function to cease rather than the cessation of all brain function.

The authors of the AAN guidelines have previously argued that the “gold standard [for determining brain death] is not the UDDA, but a neurologic examination and irreversible loss of all brainstem function” and have not claimed that “the clinical examination of [brain death] implies loss of all neuronal function.” ⁷ However, the Court in the Hailu case implicitly rejects this conception of how brain death should be determined. While the Court recognizes that it must defer to the medical community in determining the appropriate criteria for measuring brain function, it affirms that the role of the law is to determine the standard that the criteria must meet. ¹ In the UDDA, the standard is unequivocally “all functions of the person’s entire brain, including his or her brain stem.” ³

Wijdicks has argued that a comprehensive clinical examination, based on the AAN guidelines alone and without confirmatory tests that measure the brain’s electrical function and blood flow, can be the basis for an accurate clinical diagnosis of brain death. ⁸ Shewmon et al. have countered that all diagnostic standards for brain death, including the AAN guidelines, are inherently unable to determine the irreversibility and totality of cessation of function of the whole brain because they rely on expert consensus instead of empirical facts. ⁹

In some countries, confirmatory tests are mandatory for determining brain death. For example, China requires that a brain death diagnosis include two of three of the following tests: an EEG, a transcranial Doppler, and a somatosensory evoked potential. ¹⁰ Tests must also be repeated after a period of at least 12 hours. As a result of these stricter requirements, brain death diagnoses are less frequent. ¹⁰ Thus, if confirmatory tests become a required part of the UDDA standard for determining brain death, brain death diagnoses will likely become less frequent.

Whether confirmatory tests will be required in American jurisdictions in order to satisfy the requirements of the UDDA is unclear. Without sufficient evidence before it, the Nevada Supreme Court stopped short of rejecting the AAN guidelines, even though its criticism of the standard was clear. Instead, it remanded the case to the District Court to hear more expert evidence concerning whether the AAN guidelines constitute “accepted medical standards” and whether they can be used to determine if there has been an irreversible cessation of all functions of the entire brain. Though attorneys representing Hailu’s father and the hospital were to present additional evidence on January 26, 2016, regarding these matters, Aden Hailu met the criteria for cardiopulmonary death several weeks prior to the hearing, and the legal case became moot. As a result, the issue of whether the AAN guidelines, or some other criteria for determining brain death, are accepted medical standards for determining if all brain function has ceased remains unresolved.