Legal Objections to Use of Neurologic Criteria to Declare Death in the United States: 1968 to 2017

Abstract

Background: There have been a number of prominent lawsuits challenging the use of neurologic criteria to declare death in the United States.

Methods: To put these lawsuits into perspective, we conducted a search of Nexis Uni to identify cases from the past 50 years that involved objections to the use of neurologic criteria to declare death in the United States.

Results: We identified lawsuits about 67 decedents (59 state and 8 federal) from 34 different regions which were filed for crime-related issues (n = 42), hospital-related issues (n = 20), insurance-related issues (n = 2), and other issues related to time of death (n = 3). The judicial opinions about the lawsuits addressed: (1) acceptance of the use of neurologic criteria to declare death (n = 55), (2) criteria to declare death (n = 3), (3) management of decedents after death by neurologic criteria (n = 13), (4) identification of the time of death (n = 4), and (5) rights of the dead (n = 3). The outcomes of these cases were heterogeneous.

Conclusions: Since the incorporation of neurologic criteria into the medical practice of declaration of death, there have been a number of legal objections to its use. To avoid the rendering of variable opinions by the courts, there is a need for consistent legislative modification throughout the country to address (1) the specific criteria to use when declaring death by neurologic criteria, (2) management of religious objections to use of neurologic criteria to declare death, and (3) management after declaration of death by neurologic criteria.

Keywords: brain death; death; lawsuit; legal; objection.