Supreme Court of Nevada Asked to Determine Brain Death Standards

Earlier this month, the Supreme Court of Nevada ordered a hospital to continue physiological support for a dead woman pending briefing, argument, and adjudication.  (I summarize the lower court proceedings here.)



Today, the family filed its opening brief.  Basically, they make two arguments.



First:  "The District Court incorrectly interpreted Nevada's Uniform Determination of Death Act (NRS 451.007(1)(b). The plain language of the Act specifically requires that if there is any functions of a person's brain, including his or her brain stem, then there is no 'death.'"



Second:  "The District Court failed to apply and construe the Act in a manner that makes Nevada's criteria uniform among the states which have enacted the law regarding the determination of death. NRS 451.007(3). For what appears to be the first time, a District Court has concluded that the medical standards and protocols to determine ''brain death" are set by the American Academy of Neurology. Indeed, Nevada will be the first state to make a determination of death when the person was first determined to be alive, as confirmed by an electroencephalogram (EEG), without confirmatory evidence of a subsequent flat EEG."



This is not the most eloquent or comprehensive brief.  But the core argument is not crazy.  The UDDA articulates a standard:  "irreversible cessation of all functions of the entire brain."  But it is deliberately silent on the specific criteria used to measure "cessation of all functions."  



In shot, the law punts the question to the medical profession.  But there is significant variability in medical practice across the country in terms of the criteria used to ascertain brain death.