Dear Hospital Chief Executive Officer: Guidelines for the Determination of Brain Death, December 5, 2011

December 5, 2011

Dear Hospital Chief Executive Officer:

The New York State Department of Health (Department), in conjunction with the New York State Task Force on Life and the Law (Task Force), recently undertook a comprehensive review of the Department's Guidelines for the Determination of Brain Death. Enclosed please find the resulting updated revised guidelines.

In 1986, the Task Force released The Determination of Death, a report recommending that the state recognize brain death as a legal standard of death. After this recommendation was adopted into regulation (see 10 N.Y.C.R.R. § 400.16), the Department released guidelines for determining brain death in order to promote uniformity across facilities and practitioners, educate physicians about the clinical evaluation of brain death, and increase the public's trust in the thoroughness of brain death determinations. The last version of the Department's guidelines, released in 2005, relied upon standards set by the American Academy of Neurology (AAN), as well as recommendations from the Task Force and a working group of physicians.

Recently, the Task Force recommended revisions to the Department's guidelines to bring them in line with current medical evidence and with updated clinical advice published by AAN in 2010. The revised guidelines draw upon a broad, consensus-building process that included ethical, legal, and clinical review by the Task Force, as well as input by an outside panel of expert physicians and interested stakeholders from across the State.

A summary of the major changes can be found in the section entitled "Revisions to the 2005 Brain Death Determination Guidelines," on pages 1-2 of the enclosed revised guidelines. The key revisions include:

  • Reliance on a single, rigorous clinical examination – rather than two examinations – showing that brain stem function has ceased, prior to performance of an apnea test;
  • New guidance on waiting periods to exclude the possibility of recovery;
  • Updated information on ancillary testing;
  • Clarification of the role of the second physician in certifying brain death for patients who are organ donor candidates; and
  • Modifications of the clinical checklist.

I urge you to consider these Revised Guidelines in developing and implementing your institution's protocols for determining brain death. If you have questions, you may contact Beth Roxland, Executive Director of the Task Force, at (212) 417-5444 or, or Kimberly Valente, Health Policy Associate for the Department of Health, at (518) 402-1038 or


Nirav R. Shah, M.D., M.P.H.
Commissioner of Health