Controversies in Brain Death Declaration: Legal and Ethical Implications in the ICU

PURPOSE OF REVIEW: This article provides a brief overview of the history and complexities of brain death determination. We examine a few legal cases that highlight some of the controversies surrounding the validity of brain death tests in light of varying state laws and institutional policy, the appropriateness of making religious accommodations, the dilemma of continuing organ-sustaining support in a pregnant brain-dead patient, and the issue of whether to obtain informed consent from surrogate decision makers before proceeding to testing. RECENT FINDINGS: In response to physician concerns about navigating these complex cases, especially with laws that vary from state to state, the American Academy of Neurology has published a position statement in January of 2019 endorsing brain death as the irreversible loss of all functions of the entire brain. It provides positions on the determination of brain death as well as guidance surrounding requests for accommodation. SUMMARY: Although death by neurologic criteria has been accepted as death medically for over 40 years, legal variance exists throughout the states, especially regarding religious accommodations and in pregnancy. Questions of whether to obtain informed consent from surrogate decision makers prior to brain death testing remain, and there is no guideline regarding obtaining ancillary testing. We expect to see continued cases that cause medical, legal, and ethical controversies in our ICUs. As such, uniform training in proper methodology in performing the brain death examination and appropriate use of ancillary testing is crucial, and there is a need for legal consistency in the acceptance of the medical standard.