The Uniform Determination of Death Act is Being Revised

Addressing the Problem of Brain Death Misdiagnosis

Recent literature describes the controversy relating to brain death/death by neurological criteria (DNC), which some have referred to as "widely accepted, but not universally supported." This article provides an overview of differences in state laws relating to DNC and describes recent proposals to reform the definition of brain death. In 2023, the American Academy of Neurology (AAN) issued clinical guidelines stating that clinicians may declare a patient DNC despite evidence of neuroendocrine function - a position that directly conflicts with state law requirements for determining death. This article offers a critical analysis of AAN guidelines, an update on proposals to reform the Uniform Determination of Death Act, and explains why policy discussions should include how DNC exams occur in practice. Research suggests there are flaws with current clinical testing methods, which contributes to two separate problems: (1) false positives from insufficient testing, and (2) inadvertent misdiagnosis from unintentional errors. Together, this has produced confusion and reduced public trust in the concept of brain death. This article provides recommendations to clarify and retain the current legal standard for brain death, explains the ethical importance of accurate standards for determining DNC, and offers practical solutions to reduce errors.

Prevalence of Arginine Vasopressin Deficiency among Children and Adolescents Declared Dead by Neurologic Criteria

OBJECTIVES

To determine the prevalence of arginine vasopressin deficiency (AVP-D) in children and adolescents declared brain dead (BD)/death by neurologic criteria (DNC) and to evaluate the association between cause of brain injury and the development of AVP-D.

STUDY DESIGN

We retrospectively analyzed 53 pediatric BD/DNC patients ages 0-21 years from 2013 to 2023 at a single tertiary children's hospital to assess the prevalence of AVP-D and compare those patients with and without AVP-D. AVP-D frequency by injury mechanism (anoxic brain injury, traumatic brain injury, malignancy) was also analyzed.

RESULTS

Of the 53 patients declared BD/DNC, 47 (88.7%, 95% CI 77.9% to 95.3%) were diagnosed with AVP-D. The prevalence of AVP-D was similar according to the cause of brain injury (84.4%, 100.0%, and 92.3% for anoxic brain injury, traumatic brain injury, and brain tumor, respectively; P = .410). Clinical characteristics and length of stays were similar between AVP-D and non-AVP-D groups. The estimated glomerular filtration rate (mL/min/1.73 m2) was lower in children without AVP-D (78 [51-165] vs 178 [133-253]; P = .009).

CONCLUSIONS

The prevalence of AVP-D is high in children and adolescents declared BD/DNC, and it is not significantly different based on the cause of BD/DNC. The absence of AVP-D was associated with reduced renal function. Additional multicenter studies are needed to assess clinical characteristics and renal function with preserved neuroendocrine function in children with BD/DNC.

States Do Not Delineate the "Accepted Medical Standards" for Brain Death/Death by Neurologic Criteria Determination

BACKGROUND

The Uniform Determination of Death Act requires brain death/death by neurologic criteria (BD/DNC) determination to be in accordance with "accepted medical standards." The medical organizations responsible for delineating these guidelines are only specified statutorily in two states. State health organizations (SHOs) are composed of policy experts and medical professionals who are responsible for addressing medical, ethical, and legislative problems related to health. We sought to evaluate information publicly available on SHO websites regarding BD/DNC.

METHODS

From December 2023 to August 2024, we searched SHO (health department, medical board, medical society, and hospital association) websites for the 48 states without statutory guidance regarding what constitutes accepted medical standards for information regarding BD/DNC using the terms "brain death," "brain stem," and "determination of death." All posts related to BD/DNC were reviewed and categorized via thematic analysis.

RESULTS

Of the 192 SHO websites searched, there were 35 from 28 states that provided information regarding BD/DNC: 14 medical societies, 12 health departments, 8 hospital associations, and 1 medical board. Of these 35 SHOs, 12 referenced the state's legal statute, 11 referenced hospital/state/model policies or guidance, 3 referenced both legal statutes and hospital/state/model policies or guidelines, 3 referenced explicit support for standardized BD/DNC guidelines, and 6 made other mention of BD/DNC. New York was the only state with an SHO that provided clear guidance regarding accepted medical standards for BD/DNC determination.

CONCLUSIONS

For most states, the accepted medical standards for BD/DNC determination are not identified on SHO websites or statutorily. This contributes to inconsistencies across hospital BD/DNC determination policies, leading to medical, ethical, and legal challenges. Delineation of the accepted medical standards for BD/DNC determination in each state could help facilitate consistency and accuracy in BD/DNC determination, prevent false positive determinations of death, and promote public trust in BD/DNC determination and the medical system overall.

An Investigation into the Public's Attitude Toward Opting out of Brain Death

BACKGROUND

There have been growing sentiments that the Uniform Determination of Death Act needs to be revised. One suggestion is to include a conscience clause, that is, allowing patients to "opt-out" of brain death determination. Understanding public attitudes toward a conscience clause may help inform policymakers and future proposed revisions. Therefore, we sought to investigate informed public attitudes toward continued medical support after the determination of brain death.

METHODS

A nationwide online survey was distributed by a third-party provider. The survey had three components: (1) a 2-min educational video that explains five basic facts of brain death, (2) a validated five-item questionnaire to measure understanding of brain death, and (3) a six-item questionnaire to measure informed public attitudes toward a family's request to continue medical support for a patient with brain death. Attitudes were measured on a seven-point Likert scale. A multiple linear regression model was developed to identify predictors of attitudes toward opting out of brain death. Analysis of variance with a post hoc Tukey test was used to compare attitudes across categorical demographic variables.

RESULTS

We collected 1386 responses from participants across 49 states. The average five-item knowledge score was 88%. A total of 41.9% of all participants agreed that the hospital should be required to continue treatment for an individual with brain death if their family rejects brain death. A total of 24.4% and 27.3% of participants would request further treatment for themselves and a family member after a determination of brain death, respectively. Multiple linear regression identified attitudes for oneself and for a family member, age greater than 65 years, understanding that brain death is legal death, and male sex as predictors of attitudes toward requiring continued treatment (F(6, 1380) = 142.74, adjust R2 = 0.38, p < 0.001).

CONCLUSIONS

Nearly half of the participants would require hospitals to continue treatment for families who reject brain death as death. Future discussions on revising the Uniform Determination of Death Act to adopt a conscience clause should consider informed public attitudes.

An Update on Brain Death/Death by Neurologic Criteria since the World Brain Death Project

The World Brain Death Project (WBDP) is a 2020 international consensus statement that provides historical background and recommendations on brain death/death by neurologic criteria (BD/DNC) determination. It addresses 13 topics including: (1) worldwide variance in BD/DNC, (2) the science of BD/DNC, (3) the concept of BD/DNC, (4) minimum clinical criteria for BD/DNC determination, (5) beyond minimum clinical BD/DNC determination, (6) pediatric and neonatal BD/DNC determination, (7) BD/DNC determination in patients on ECMO, (8) BD/DNC determination after treatment with targeted temperature management, (9) BD/DNC documentation, (10) qualification for and education on BD/DNC determination, (11) somatic support after BD/DNC for organ donation and other special circumstances, (12) religion and BD/DNC: managing requests to forego a BD/DNC evaluation or continue somatic support after BD/DNC, and (13) BD/DNC and the law. This review summarizes the WBDP content on each of these topics and highlights relevant work published from 2020 to 2023, including both the 192 citing publications and other publications on BD/DNC. Finally, it reviews questions for future research related to BD/DNC and emphasizes the need for national efforts to ensure the minimum standards for BD/DNC determination described in the WBDP are included in national BD/DNC guidelines and due consideration is given to the recommendations about social and legal aspects of BD/DNC determination.

Down Syndrome: Evaluating Disparities in Place of Death in the United States Using Centers for Disease Control and Prevention's Wide-Ranging Online Data for Epidemiologic Research (CDC-WONDER) Database Over 22 Years

INTRODUCTION

The Uniform Determination of Death Act (UDDA) ensures that individuals with irreversible cessation of circulatory, respiratory, or brain functions receive timely palliative care. Our research has focused on identifying disparities in mortality among individuals with Down syndrome (DS) based on gender, age, racial groups, and geographic regions within the United States over 22 years. This study aims to analyze differences in the location of death, including hospitals, nursing homes, hospice care facilities, and unspecified locations, considering demographic and regional variables.

METHODOLOGY

Utilizing a cross-sectional observational study design, we extracted data from the Centers for Disease Control and Prevention's Wide-ranging Online Data for Epidemiologic Research (CDC-WONDER) database, specifically targeting deaths coded under the International Classification of Diseases, 11th Revision (ICD-11) code "Q-90." This analysis, covering 1999 to 2020, segmented the data by age, gender, race, and United States Census regions. Death locations were categorized into home/hospice, medical facilities, and nursing/other facilities. Data analysis was conducted using Microsoft Excel, and the Autoregressive Integrated Moving Average (ARIMA) model was applied for statistical assessments.

RESULTS

Our analysis included 22604 deaths related to DS, as recorded in the CDC-WONDER database from 1999 to 2020. The majority of these deaths occurred in medical or nursing facilities, with home or hospice deaths accounting for 6106 cases and other locations for 5.29% of deaths. Univariate logistic regression was used to identify predictors of home or hospice deaths, revealing a trend of increasing deaths in these settings over time.

CONCLUSIONS

Between 1999 and 2020, there was a notable increase in the number of individuals with DS dying at home or in hospice care, especially among those aged 55-64. Female individuals and those identified as white experienced higher mortality rates than other demographic groups. This shift highlights the need to understand the disparity in places of death within this population, ensuring equitable access to quality end-of-life care for all individuals with DS.

Beyond the Final Heartbeat: Neurological Perspectives on Normothermic Regional Perfusion for Organ Donation after Circulatory Death

Normothermic regional perfusion (NRP) has recently been used to augment organ donation after circulatory death (DCD) to improve the quantity and quality of transplantable organs. In DCD-NRP, after withdrawal of life-sustaining therapies and cardiopulmonary arrest, patients are cannulated onto extracorporeal membrane oxygenation to reestablish blood flow to targeted organs including the heart. During this process, aortic arch vessels are ligated to restrict cerebral blood flow. We review ethical challenges including whether the brain is sufficiently reperfused through collateral circulation to allow reemergence of consciousness or pain perception, whether resumption of cardiac activity nullifies the patient's prior death determination, and whether specific authorization for DCD-NRP is required. ANN NEUROL 2024;95:1035-1039.

Perspectives of Medical Organizations, Organ Procurement Organizations, and Advocacy Organizations About Revising the Uniform Determination of Death Act (UDDA)

BACKGROUND

The Uniform Law Commission paused work of the Drafting Committee to Revise the Uniform Determination of Death Act (UDDA) in September 2023.

METHODS

Thematic review was performed of comments submitted to the Uniform Law Commission by medical organizations (MO), organ procurement organizations (OPO), and advocacy organizations (AO) from 1/1/2023 to 7/31/2023.

RESULTS

Of comments from 41 organizations (22 AO, 15 MO, 4 OPO), 34 (83%) supported UDDA revision (50% OPO, 33% MO recommended against revision). The most comments addressed modifications to "all functions of the entire brain, including the brainstem" (31; 95% AO, 75% OPO, 47% MO), followed by irreversible versus permanent (25; 77% AO, 50% OPO, 40% MO), accommodation of brain death/death by neurologic criteria (BD/DNC) objections (23; 100% OPO, 80% MO, 32% AO), consent for BD/DNC evaluation (18; 75% OPO, 47% MO, 36% AO), "accepted medical standards" (13; 36% AO, 33% MO, 0% OPO), notification before BD/DNC evaluation (14; 100% OPO, 53% MO, 9% AO), time to gather before discontinuation of organ support after BD/DNC determination (12; 60% MO, 25% OPO, 9% AO), and BD/DNC examiner credential requirements (2; 13% MO, 0% AO, 0% OPO). The predominant themes were that the revised UDDA should include the term "irreversible" and shouldn't (1) stipulate specific medical guidelines, (2) require notification before BD/DNC evaluation, or (3) require time to gather before discontinuation of organ support after BD/DNC determination. Views on other topics were mixed, but MO and OPO generally advocated for the revised UDDA to take a functional approach to BD/DNC, not require consent for BD/DNC evaluation, and not require opt-out accommodation of BD/DNC objections. Contrastingly, many AO and some MO with religious affiliations or a focus on advocacy favored the revised UDDA take an anatomic approach to BD/DNC or eliminate BD/DNC altogether, require consent for BD/DNC evaluation, and require opt-out accommodation of BD/DNC objections.

CONCLUSIONS

Most commenting organizations support UDDA revision, but perspectives on the approach vary, so the Drafting Committee could not formulate revisions that would be agreeable to all stakeholders.

Donor heart refusal after circulatory death: An analysis of United Network for Organ Sharing refusal codes

Objective

Donor hearts procured after circulatory death (DCD) may significantly increase the number of hearts available for transplantation. The purpose of this study was to analyze current DCD and brain-dead donor (DBD) heart transplantation rates and characterize organ refusal using the most up-to-date United Network for Organ Sharing (UNOS) and Organ Procurement and Transplantation Network data.

Methods

We analyzed UNOS and Organ Procurement and Transplantation Network DBD and DCD candidate, transplantation, and demographic data from 2020 through 2022 and 2022 refusal code data to characterize DCD heart use and refusal. Subanalyses were performed to characterize DCD donor demographics and regional transplantation rate variance.

Results

DCD hearts were declined 3.37 times more often than DBD hearts. The most frequently used code for DCD refusal was neurologic function, related to concerns of a prolonged dying process and organ preservation. In 2022, 92% (1329/1452) of all DCD refusals were attributed to neurologic function. When compared with DBD, DCD donor hearts were more frequently declined as the result of prolonged warm ischemic time (odds ratio, 5.65; 95% confidence interval, 4.07-7.86) and other concerns over organ preservation (odds ratio, 4.06; 95% confidence interval, 3.33-4.94). Transplantation rate variation was observed between demographic groups and UNOS regions. DCD transplantation rates are currently experiencing second order polynomial growth.

Conclusions

DCD donor hearts are declined more frequently than DBD. DCD heart refusals result from concerns over a prolonged dying process and organ preservation. Heart transplantation rates may be substantially improved by ex situ hemodynamic assessment, adoption of normothermic regional perfusion guidelines, and quality initiatives.

New developments in guidelines for brain death/death by neurological criteria

The declaration of brain death (BD), or death by neurological criteria (DNC), is medically and legally accepted throughout much of the world. However, inconsistencies in national and international policies have prompted efforts to harmonize practice and central concepts, both between and within countries. The World Brain Death Project was published in 2020, followed by notable revisions to the Canadian and US guidelines in 2023. The mission of these initiatives was to ensure accurate and conservative determination of BD/DNC, as false-positive determinations could have major negative implications for the medical field and the public's trust in our ability to accurately declare death. In this Review, we review the changes that were introduced in the 2023 US BD/DNC guidelines and consider how these guidelines compare with those formulated in Canada and elsewhere in the world. We address controversies in BD/DNC determination, including neuroendocrine function, consent and accommodation of objections, summarize the legal status of BD/DNC internationally and discuss areas for further BD/DNC research.

Complexity of human death: its physiological, transcriptomic, and microbiological implications

Human death is a complex, time-governed phenomenon that leads to the irreversible cessation of all bodily functions. Recent molecular and genetic studies have revealed remarkable experimental evidence of genetically programmed cellular death characterized by several physiological processes; however, the basic physiological function that occurs during the immediate postmortem period remains inadequately described. There is a paucity of knowledge connecting necrotic pathologies occurring in human organ tissues to complete functional loss of the human organism. Cells, tissues, organs, and organ systems show a range of differential resilience and endurance responses that occur during organismal death. Intriguingly, a persistent ambiguity in the study of postmortem physiological systems is the determination of the trajectory of a complex multicellular human body, far from life-sustaining homeostasis, following the gradual or sudden expiry of its regulatory systems. Recent groundbreaking investigations have resulted in a paradigm shift in understanding the cell biology and physiology of death. Two significant findings are that (i) most cells in the human body are microbial, and (ii) microbial cell abundance significantly increases after death. By addressing the physiological as well as the microbiological aspects of death, future investigations are poised to reveal innovative insights into the enigmatic biological activities associated with death and human decomposition. Understanding the elaborate crosstalk of abiotic and biotic factors in the context of death has implications for scientific discoveries important to informing translational knowledge regarding the transition from living to the non-living. There are important and practical needs for a transformative reestablishment of accepted models of biological death (i.e., artificial intelligence, AI) for more precise determinations of when the regulatory mechanisms for homeostasis of a living individual have ceased. In this review, we summarize mechanisms of physiological, genetic, and microbiological processes that define the biological changes and pathways associated with human organismal death and decomposition.

Reader Response: Challenges to Brain Death in Revising the Uniform Determination of Death Act: The UDDA Revision Series

Bernat1 discussed that BD/DNC acceptance has always generated adversaries who, for conceptual or religious reasons, castoff it as human death. Therefore, to provide a conceptual framework of BD/DNC is essential to revise the UDDA.

An Overview of Ethical Issues Raised by Medicolegal Challenges to Death by Neurologic Criteria in the United Kingdom and a Comparison to Management of These Challenges in the USA

Although medicolegal challenges to the use of neurologic criteria to declare death in the USA have been well-described, the management of court cases in the United Kingdom about objections to the use of neurologic criteria to declare death has not been explored in the bioethics or medical literature. This article (1) reviews conceptual, medical and legal differences between death by neurologic criteria (DNC) in the United Kingdom and the rest of the world to contextualize medicolegal challenges to DNC; (2) summarizes highly publicized legal cases related to DNC in the United Kingdom, including the nuanced 2022 case of Archie Battersbee, who was transiently considered dead by neurologic criteria, but ultimately determined to be in a vegetative state/unresponsive-wakeful state; and (3) provides an overview of ethical issues raised by medicolegal challenges to DNC in the United Kingdom and a comparison to the management of these challenges in the USA.

Standards and Ethics Issues in the Determination of Death: A Position Paper From the American College of Physicians

The determination of a patient's death is of considerable medical and ethical significance. Death is a biological concept with social implications. Acting with honesty, transparency, respect, and integrity is critical to trust in the patient-physician relationship, and the profession, in life and in death. Over time, cases about the determination of death have raised questions that need to be addressed. This American College of Physicians position paper addresses current controversies and supports a clarification to the Uniform Determination of Death Act; maintaining the 2 current independent standards of determining death, cardiorespiratory and neurologic; retaining the whole brain death standard; aligning medical testing with the standards; keeping issues about the determination of death separate from organ transplantation; reaffirming the importance and role of the dead donor rule; and engaging in educational efforts for health professionals, patients, and the public on these issues. Physicians should advocate for policies and practices on the determination of death that are consistent with the profession's fundamental and timeless commitment to individual patients and the public.

Potential Threats and Impediments to the Clinical Practice of Brain Death Determination: The UDDA Revision Series

The Uniform Determination of Death Act (UDDA) revision series in Neurology® originated in response to the plan of the Uniform Law Commission to create a revised Uniform Determination of Death Act (rUDDA) to address contemporary controversies associated with brain death/death by neurologic criteria (BD/DNC) determination. This article contextualizes these, and other, controversies and reviews the extent to which they represent potential threats and impediments to the clinical practice of BD/DNC determination. It also explains the reasons that our rapidly evolving understanding of the brain's ability to recover from injury should not influence the clinical practice of BD/DNC determination. Finally, it explores the myriad ways in which the American Academy of Neurology has addressed potential threats and impediments to the clinical practice of BD/DNC determination and the implications potential changes to the UDDA may have on the future of the clinical practice of BD/DNC determination.

Brain Death: Ethical and Legal Challenges

Although the fundamental principle behind the Uniform Determination of Death Act (UDDA), the equivalence of death by circulatory-respiratory and neurologic criteria, is accepted throughout the United States and much of the world, some families object to brain death/death by neurologic criteria. Clinicians struggle to address these objections. Some objections have been brought to court, particularly in the United States, leading to inconsistent outcomes and discussion about potential modifications to the UDDA to minimize ethical and legal controversies related to the determination of brain death/death by neurologic criteria.

Brain death/death by neurologic criteria determination: an update

PURPOSE OF REVIEW

Brain death, also known as death by neurologic criteria (DNC), is a well-established concept. In this article, we present a short history of the concept and give an overview of recent changes and a practical update on diagnosis and definitions of brain death/DNC. Unresolved issues will be discussed.

RECENT FINDINGS

There is variability in brain death/DNC determination worldwide. In recent years, successful attempts have been made to harmonize these criteria and, consequently, to improve public trust in the process and diagnosis. An international multidisciplinary collaboration has been created and it has published minimum criteria, provided guidance for professionals and encouragement to revise or develop guidelines on brain death/DNC worldwide.

SUMMARY

There are two sets of criteria for declaration of death. First, if there is neither cardiac output nor respiratory effort, then cardiopulmonary criteria are used. Second, if both the cerebrum and brainstem have completely and permanently lost all functions, and there is a persistent coma, absent brainstem reflexes and no spontaneous respiratory effort, death can be declared on the basis of brain death/DNC. Although attempts to formulate uniform criteria are ongoing, consensus has been reached on the minimum criteria. Some inconsistencies and questions remain.

Should the Revised Uniform Determination of Death Act Address Objections to the Use of Neurologic Criteria to Declare Death?

In response to concerns about the declaration of death by neurologic criteria, the Uniform Law Commission created a drafting committee to update the Uniform Determination of Death Act (UDDA) in the Fall of 2021. One of the key questions for the committee to address was the following: Should the revised UDDA address objections to the use of neurologic criteria to declare death? This article (1) provides historical background and survey results that demonstrate the need to address this question; (2) summarizes the ethical principles that support and oppose accommodation of objections to the use of neurologic criteria to declare death; (3) reviews accommodation in other areas of medicine and law; (4) discusses existing legal and hospital guidance on management of these objections; (5) examines perspectives of stakeholder medical societies and expert health care professionals, lawyers, ethicists, and philosophers on whether the revised UDDA should address these objections; (6) identifies some questions for the drafting committee to consider when deciding whether the revised UDDA should address objections to the use of neurologic criteria to declare death; and (7) summarizes the potential downstream effects of the drafting committee's decision.