Response

Abstract

As we have presented, because there are numerous reasons why consent should not be required prior to an evaluation for brain death (BD), Nevada revised its Uniform Determination of Death Act (UDDA) to stipulate that consent is not needed to conduct a BD evaluation.1Lewis A. Greer D. Point: Should informed consent be required for apnea testing in patients with suspected brain death? No.Chest. 2017; 152: 700-702Abstract Full Text Full Text PDF PubMed Scopus (21) Google Scholar, 2An Act Relating to the Determination of Death, 2017 Nevada Acts ch. 315 (A.B. 424), effective Oct 1, 2017.Google Scholar Rady et al3Rady M.Y. Verheijde J.L. Yanke G. Nonconsensual determination of neurologic (brain) death: Is it a violation of constitutional rights?.Chest. 2017; 152: 903-904Abstract Full Text Full Text PDF PubMed Scopus (3) Google Scholar argue that this is constitutionally problematic. The revisions to Nevada’s UDDA stem from the response of the Supreme Court of Nevada to the case of Aden Hailu, a woman whose father requested continuation of organ support after she was declared brain dead using the practice parameter for determination of BD from the American Academy of Neurology (AANPP).4In Re: Guardianship of Hailu. 2015.Google Scholar The AANPP was originally written in 1995 in response to concerns raised by the authors of the UDDA and was updated in 2010.5Wijdicks E.F.M. Varelas P.N. Gronseth G.S. Greer D.M. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology.Neurology. 2010; 74: 1911-1918Crossref PubMed Scopus (686) Google Scholar The Court found that organ support should be continued because the hospital did not provide sufficient evidence or expert testimony that the AANPP is the accepted criteria for determination of BD in the medical community. Notably, the Court stated that their ruling was not an attempt to “set in stone certain medical criteria for determining BD,” but rather that it was based on the “undeveloped record before [them].”4In Re: Guardianship of Hailu. 2015.Google Scholar The Nevada Assembly sought to avoid future confusion about the criteria needed to determine BD, so they proposed revisions to their UDDA to clearly state that BD determination in an adult must be made in accordance with the AANPP.2An Act Relating to the Determination of Death, 2017 Nevada Acts ch. 315 (A.B. 424), effective Oct 1, 2017.Google Scholar Additionally, because questions about the need for consent prior to the determination of BD were raised in recent lawsuits in other states, the Assembly specified in the revised UDDA that BD determination is a clinical decision and therefore does not require consent. The determination is not based on “battery” as Rady et al3Rady M.Y. Verheijde J.L. Yanke G. Nonconsensual determination of neurologic (brain) death: Is it a violation of constitutional rights?.Chest. 2017; 152: 903-904Abstract Full Text Full Text PDF PubMed Scopus (3) Google Scholar claim but rather on a neurologic examination that is similar to, but more detailed than, the routine examination performed multiple times a day on comatose patients around the world.1Lewis A. Greer D. Point: Should informed consent be required for apnea testing in patients with suspected brain death? No.Chest. 2017; 152: 700-702Abstract Full Text Full Text PDF PubMed Scopus (21) Google Scholar, 2An Act Relating to the Determination of Death, 2017 Nevada Acts ch. 315 (A.B. 424), effective Oct 1, 2017.Google Scholar, 3Rady M.Y. Verheijde J.L. Yanke G. Nonconsensual determination of neurologic (brain) death: Is it a violation of constitutional rights?.Chest. 2017; 152: 903-904Abstract Full Text Full Text PDF PubMed Scopus (3) Google Scholar The AANPP provides: (1) clear instructions about performing the examination and apnea testing, (2) stipulations on how to avoid complications during the evaluation, and (3) indications to abort apnea testing.5Wijdicks E.F.M. Varelas P.N. Gronseth G.S. Greer D.M. Evidence-based guideline update: determining brain death in adults: report of the Quality Standards Subcommittee of the American Academy of Neurology.Neurology. 2010; 74: 1911-1918Crossref PubMed Scopus (686) Google Scholar We applaud Nevada for revising their UDDA in response to these recent lawsuits. Although claims have been made that determination of BD in the absence of consent violates a patient’s freedom of religion and privacy, determination of death should not be a negotiated standard or choice.1Lewis A. Greer D. Point: Should informed consent be required for apnea testing in patients with suspected brain death? No.Chest. 2017; 152: 700-702Abstract Full Text Full Text PDF PubMed Scopus (21) Google Scholar, 6Alameda Superior Court Case No. RP 13–707598.Google Scholar Nonetheless, determination of whether or not Nevada’s UDDA revision is constitutionally problematic is outside the purview of physicians. POINT: Should Informed Consent Be Required for Apnea Testing in Patients With Suspected Brain Death? NoCHESTVol. 152Issue 4PreviewPhysicians bear the responsibility to distinguish life from death.1 Identification of irreversible cessation of circulation and breathing or brain function in children and adults, both nationally and internationally, constitutes medical and legal death.1-4 Determination of death by cardiopulmonary criteria is made if a patient has fixed and dilated pupils and no palpable pulse, breath sounds, heart sounds, respiratory effort, or pulsatile arterial blood pressure for 10 minutes.4 Determination of death by neurologic criteria (brain death) requires that a patient be comatose with no brainstem reflexes, and be unable to breathe spontaneously. Full-Text PDF Nonconsensual Determination of Neurologic (Brain) Death: Is It a Violation of Constitutional Rights?CHESTVol. 152Issue 4PreviewLewis and Greer1 cited recent amendments (e-Appendix 1) to the Nevada Uniform Determination of Death Act (N.R.S. 451.007) (Uniform Determination of Death Act [UDDA])2 to buttress their claims that: (1) the American Academy of Neurology (AAN) guideline represents the accepted standard of determination of neurologic (brain) death and (2) consent for determination of neurologic death is not legally required. The amendments were in response to the Nevada Supreme Court’s doubt (e-Appendix 2) about whether the AAN standard is in compliance with the UDDA, that is, “…irreversible cessation of… (b) [a]ll functions of the person’s entire brain, including his or her brainstem” [emphasis added]. Full-Text PDF