                                                     131 Nev., Advance Opinion             el
                         IN THE SUPREME COURT OF THE STATE OF NEVADA

                IN THE MATTER OF THE                                  No. 68531
                GUARDIANSHIP OF THE PERSON
                AND ESTATE OF ADEN HAILU, AN
                ADULT.                                                      c lUTT
                FANUEL GEBREYES,                                             NOV 6 2015
                Appellant,                                                 Tr
                                                                            R1N ti ronfiecipR
                                                                                :   tv iE K. UEE7MAN
                vs.
                PRIME HEALTHCARE SERVICES,                            BY'AL,FilE \   J LW
                LLC, D/B/A ST. MARY'S REGIONAL
                MEDICAL CENTER,
                Respondent.


                            Appeal from a district court order denying a petition for
                temporary restraining order and permanent injunction. Second Judicial
                District Court, Family Court Division, Washoe County; Frances Doherty,
                Judge.
                            Reversed and remanded.

                O'Mara Law Firm, P.C., and David C. O'Mara, Reno,
                for Appellant.

                Snell & Wilmer, L.L.P., and William E. Peterson and Janine C. Prupas,
                Reno,
                for Respondent.


                BEFORE THE COURT EN BANC.

                                                  OPINION
                By the Court, PICKERING, J.:
                            "For legal and medical purposes, a person is dead if the person
                has sustained an irreversible cessation of. . .    functions of the person's
SUPREME COURT
       OF
     NEVADA


(0) 1947A   e                                                                            Yb    -3910
                   entire brain, including his or her brain stem." NRS 451.007(1). The
                   determination of death "must be made in accordance with accepted
                   medical standards." NRS 451.007(2). Here, we are asked to decide
                   whether the American Association of Neurology guidelines are considered
                   "accepted medical standards" that satisfy the definition of brain death in
                   NRS 451.007. We conclude that the district court failed to properly
                   consider whether the American Association of Neurology guidelines
                   adequately measure all functions of the entire brain, including the brain
                   stem, under NRS 451.007 and are considered accepted medical standards
                   by states that have adopted the Uniform Determination of Death Act.
                   Accordingly, we reverse the district court's order denying a petition for
                   temporary restraining order and remand.

                                                     FACTS
                   Medical history
                               On April 1, 2015, 20-year-old university student Aden Hailu
                   went to St. Mary's Regional Medical Center (St. Mary's) after experiencing
                   abdominal pain. Medical staff could not determine the cause of her pain
                   and decided to perform an exploratory laparotomy and remove her
                   appendix.' During the laparotomy, Hailu's blood pressure was low and
                   she suffered "severe, catastrophic anoxic, or lack of brain oxygen damage,"
                   and she never woke up. After her surgery, Hailu was transferred to the
                   St. Mary's Intensive Care Unit (ICU), under the care of Dr. Anthony


                          'An exploratory laparotomy is a surgery in which "Nile surgeon
                   makes a cut into the abdomenS and examines the abdominal organs."
                   See Abdominal Exploration, Nat'l Inst. of Health: U.S. Nat'l Library
                   of Med., https://www.nlm.nih.gov/medlineplus/ency/artide/002928.htm
                   (last updated Nov. 13, 2015).

SUPREME COURT
        OF
     NEVADA
                                                        2
(0) 1947A    me,
                Floreani.      Within the first two weeks of April, three different
                electroencephalogram (EEG) tests were conducted, 2 all of which showed
                brain functioning.
                              On April 13, 2015, Dr. Aaron Heide, the Director of Neurology
                and Stroke at St. Mary's, first examined Hailu. Dr. Heide concluded that
                Hailu was not brain dead at that time but was "rapidly declining." To
                make that determination, Dr. Heide conducted an examination of Hailu's
                neurological functions; her left eye was minimally responsive, she was
                chewing on the ventilator tube, and she moved her arms with stimulation.
                The next day, April 14, 2015, Hailu did not exhibit these same indicia of
                neurological functioning.
                              On May 28, 2015, St. Mary's performed an apnea test, 3 which
                involved taking Hailu off ventilation support for ten minutes to see if she



                      2   An EEG test
                              detects abnormalities in the brain waves or
                              electrical activity of the brain. During the
                              procedure, electrodes consisting of small metal
                              discs with thin wires are pasted on the scalp. The
                              electrodes detect tiny electrical charges that result
                              from the activity of the brain cells. The charges
                              are amplified and appear as a graph on a
                              computer screen or as a recording that may be
                              printed out on paper.
                Electroencephalogram (EEG),       Johns Hopkins Med.: Health
                Library, http://www.hopkinsmedicine.org/healthlibrary/test_procedures/
                neurological/electroencephalogram_eeg_92,P07655/ (last visited Nov. 13,
                2015).

                      3An  apnea test "adds carbon dioxide to the patient's blood. A person
                with a functioning brain stem tries to breathe in response to the carbon
                dioxide. If the patient tries to breathe, you abort the test immediately and
                                                                     continued on next page...
SUPREME COURT
        OF
     NEVADA
                                                        3
(0) 1947A
                could breathe on her own; Hailu failed the apnea test, leading St. Mary's
                to conclude that "Mills test result confirms Brain Death unequivocally."
                Based on Hailu's condition, Dr. Jeffrey Bacon wrote the following in his
                notes: "Awaiting administration and hospital lawyers for direction re
                care—withdrawal of Ventilator support indicated NOW in my opinion as
                brain death unequivocally confirmed." On June 2, 2015, St. Mary's
                notified Hailu's father and guardian, 4 Fanuel Gebreyes, that it intended to
                discontinue Hailu's ventilator and other life support. Gebreyes opposed
                taking Hailu off life support and sought judicial relief.

                Procedural history
                      June 18, 2015, hearing
                            Gebreyes filed an emergency motion for temporary restraining
                order to enjoin St. Mary's from removing Hailu from life-sustaining
                services. On June 18, 2015, the district court held a hearing on the
                matter. The parties stipulated that St. Mary's would continue life-
                sustaining services until July 2, 2015, at 5:00 p.m. to allow Gebreyes to
                have an independent neurologist examine Hailu. They further stipulated
                that if, after the independent examination, Gebreyes wished St. Mary's to
                continue life support, he would need to request it through guardianship
                court. However, "if on July 2, 2015, it is detei mined that Aden Hailu is
                legally and clinically deceased, the hospital shall proceed as they see fit."


                ...continued
                say the patient is not brain-dead." Leslie C. Griffin & Joan H. Krause,
                Practicing Bioethics Law 106 (2015) (internal quotation marks omitted).

                      4 Hailu has two guardians: Fanuel Gebreyes and Metsihate Asfaw
                (Hailu's cousin). Asfaw was attending college in Russia and did not
                directly participate in this case.

SUPREME COURT
        OF
     NEVADA
                                                       4
(0) 1947A
                Based on the stipulation, the district court dismissed the complaint for a
                temporary restraining order.

                      July 2, 2015, hearing
                            For reasons unknown, Gebreyes was unable to obtain the
                services of a neurologist before the stipulated July 2, 2015, deadline.
                Consequently, on July 1, 2015, Gebreyes filed an "Emergency Petition for
                Order Authorizing Medical Care, Restraining Order and Permanent
                Injunction." In the petition, he alleged that the doctors at St. Mary's had
                prematurely determined that Hailu had experienced brain death and
                sought to prevent the hospital from removing Hailu from the ventilator.
                St. Mary's opposed the emergency petition on July 2, 2015, and the district
                court held a hearing that same day.
                            At the July 2, 2015, hearing, the district court heard from four
                witnesses. First, Gebreyes testified that he wanted Hailu to get a
                tracheostomy 5 and feeding tube to prepare her for transport; he hoped to
                take her home or relocate her to Las Vegas, where he resides. When
                asked why he did not obtain the services of another doctor to perform the
                tracheostomy, he stated that it was something he thought St. Mary's had
                to do because Hailu is at St. Mary's. Second, Gebreyes obtained the
                services of Dr. Paul Byrne—a known opponent of brain-death declarations
                who is unlicensed in Nevada—to testify that Hailu is still alive. Dr. Byrne




                      5 A tracheostomy "is an opening surgically created through
                the neck into the trachea (windpipe) to allow direct access to
                the breathing tube." What Is a Tracheostomy, Johns Hopkins
                Med., http://www.hopkinsmedicine.org/tracheostomy/about/what.html
                (last visited Nov. 13, 2015).

SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A
                  complained that Hailu was never treated for thyroid problems and
                  testified that this treatment will help her improve.
                              Third, Dr. Aaron Heide testified on behalf of St. Mary's. Dr.
                  Heide applied the American Association of Neurology (AAN) guidelines to
                  Hailu to determine if she was brain dead. He testified that the AAN
                  guidelines are the accepted medical standard in Nevada. The AAN
                  guidelines call for three determinations: (1) whether there is a coma and
                  unresponsiveness; (2) whether there is brainstem activity (determined by
                  conducting a clinical examination of reflexes, eyes, ears, etc.); and
                  (3) whether the patient can breathe on her own (determined by conducting
                  an apnea test). Although another doctor conducted the apnea test one
                  month after Dr. Heide's last examination of Hailu, Dr. Heide believed that
                  Hailu "had zero percent chance of any form of functional neurological
                  outcome." Further, Dr. Heide also administered a Transcranial Doppler
                  test, which is a test that measures blood flow to the brain. 8 While there
                  was still some blood flow to Hailu's brain, the lack of blood flow was
                  consistent with brain death.
                              Last, Helen Lidholm, the CEO of St. Mary's, testified that the
                  hospital is in favor of allowing Hailu to be transported to Las Vegas,
                  where her father lives. Lidholm stated that St. Mary's "could make that

                        6A  Transcranial Doppler test is a noninvasive ultrasound measure of
                  "sound waves, inaudible to the human ear, [which] are transmitted
                  through the tissues of the skull. These sound waves reflect off blood cells
                  moving within the blood vessels, allowing the radiologist to calculate their
                  speed. The sound waves are recorded and displayed on a computer
                  screen."     Ultrasonography Test (Transcranial Doppler), Cleveland
                  Clinic,     https://my.clevelandclinic.orgthealth/diagnostics/hic-abdominal-
                  renal-ultrasouncl/hic-ultrasonography-test-transcranial-doppler         (last
                  updated Jan. 20, 2012).

SUPREME COURT
         OF
      NEVADA
                                                        6
(0) 1947.4    e
                happen" as long as Gebreyes arranges the proper medical equipment and
                transportation for Hailu and ensures a transfer location that can care for
                her. St. Mary's would allow the family to retain the services of any
                neurologist to come in and test Hailu as long as the physician is licensed
                in the State of Nevada; St. Mary's also offered to pay for the physician's
                examination fee. On cross-examination, Lidholm clarified that if the
                family has a licensed neurologist examine Hailu and determine that she is
                still alive, the physician can then order treatment for Hailu. Gebreyes
                said that he never received this offer before the hearing.
                            After Gebreyes said that he wanted to take advantage of the
                opportunity to bring in his own neurologist, the parties stipulated to
                extend the hearing until July 21, 2015, to give Gebreyes time to retain the
                services of a neurologist. The district court gave Gebreyes specific
                instructions on the care plan he must bring back to the court. First, the
                district court stated that Gebreyes needs a neurological expert because the
                matter involves "primarily neurological issues." Second, the care plan
                must determine "whether or not that physician is going to treat the
                patient, prescribe the protocol for the patient that the guardian is hoping
                for, and works with the guardian to accommodate transfer." Third, the
                plan must also include the method and manner of transportation, the new
                location, and the plan of care at the new location, along with the method of
                payment for such care. Finally, the care plan must be supported by
                medical evidence. Based on this stipulation, the district court continued
                the hearing to July 21, 2015.

                      July 21, 2015, hearing
                            On July 21, 2015, Gebreyes presented a plan to transport
                Hailu to Las Vegas based on the testimony of two physicians. First,

SUPREME COURT
        OF
     NEVADA
                                                      7
(0) 1947A
                Gebreyes called Dr. Brian Callister to testify. Dr. Callister is not a
                neurologist, but specializes in internal medicine and hospitalist medicine.
                He examined Hailu the day of his testimony and reviewed her medical
                records. Based on his examination of Hailu and review of her records, Dr.
                Callister testified: "I believe that her status is quite grim. I think that her
                chance of survival, her chance of awakening from her current state is a
                long shot. However, I do not think that the chance is zero." Dr. Canister
                stated that all three EEG tests did show brainwaves, albeit abnormal and
                slow. In Dr. Callister's opinion, the EEG tests are "something that should
                give you just enough pause to say you can't say with certainty that her
                chances are zero." Although Dr Callister admitted that under the AAN
                guidelines Hailu's condition looks irreversible, Dr. Callister pointed to
                other factors that demonstrate improvement is a possibility. As examples,
                Dr. Callister cites Hailu's young age, her health, her skin, her ability to
                make urine and pass bowel movements, and the fact that the general
                functioning of the rest of her body is good. He explained that typically,
                someone kept alive by a ventilator shows other signs of deterioration, such
                as organ failures or necrosis of the hands and feet, that Hailu does not
                exhibit.
                               Finally, Dr. Callister questioned the reliability of the AAN
                guidelines stating that the AAN guidelines will always yield results
                consistent with brain death for a patient with a nonfunctioning cortex,
                even if the mid or hind parts of the brain are still functioning.
                Nevertheless, on cross-examination, Dr. Callister conceded that under "a
                strict definition" of the AAN guidelines, Hailu "would meet their category
                [   of brain death]." On redirect, Dr. Callister concluded that "there's enough
                variables and enough questions based on the condition of her physical

SUPREME COURT
        OF
     NEVADA
                                                         8
(0) I947A
                body, the EEG's and the fact that no further neurological testing has been
                done in several months, and the fact that no outside third party
                neurologist has looked at her that I would have pause."
                            Second, Gebreyes called Dr. Scott Manthei from St. Rose de
                Lima Hospital (St. Rose) in Las Vegas. Although Dr. Manthei had not
                reviewed Hailu's medical records, he testified that he was prepared to
                perform a tracheostomy on Hailu. However, St. Rose was not prepared to
                accept Hailu at the time because there were no available beds. Dr.
                Manthei did not plan on accepting Hailu into his care, except for the
                tracheostomy. Dr. Manthei testified that he could not perform the
                tracheostomy until St. Rose agreed to accept Hailu into the short-term
                ICU, and found a long-term care facility for Hailu after her stay at St.
                Rose.
                            Next, St. Mary's called Dr. Anthony Floreani to testify. Dr.
                Floreani took care of Hailu in the ICU since the night following her
                surgery. Dr. Floreani is a pulmonary doctor, not a neurologist. Dr.
                Floreani agreed with the conclusions of Dr. Heide that Hailu is brain dead.
                He rejected the notion that the EEGs contradict that finding by stating:
                "The prior EEG, the prior MRI really do not—are not considered primary
                determinants of brain death by the established consensus and evidence-
                based criteria." Dr. Floreani testified that the St. Mary's doctors did the
                tests "by the book exactly how you should do it."
                            Based on all of the evidence from the July 2 hearing and the
                July 21 hearing, the district court ruled in favor of St. Mary's. The district
                court stated that a restraining order should not be granted because the
                medical evidence from Dr. Heide and Dr. Floreani suggested that the AAN
                guidelines were followed, and thus, "medical standards were met, the

SUPREME COURT
       OF
    NEVADA
                                                       9
(0) 194A
                outcome and criteria were satisfied in terms of the statute, the [AAN]
                protocol was followed, the outcome of the various three step tests under
                the [AAN] protocol all direct certification of death, and I agree." Despite
                ruling in St. Mary's favor, the district court granted an injunction pending
                Gebreyes's appeal to this court. The district court's written order was filed
                on July 30, 2015. Gebreyes appealed on August 3, 2015, and this court
                issued a stay of the district court's order and directed St. Mary's not to
                terminate Hailu's life-support systems pending resolution of the appeal.
                Expedited briefing and argument followed.

                                               DISCUSSION
                             Although this court gives deference to the district court's
                factual findings, this court reviews the district court's conclusions of law,
                including statutory interpretation issues, de novo.    Torres v. Nev. Direct
                Ins. Co., 131 Nev., Adv. Op. 54, 353 P.3d 1202, 1206 (2015).
                             Brain death presents a mixed legal and medical question.
                Although "it is for [the] law to define the standard of death," courts have
                deferred to the medical community to determine the applicable criteria for
                deciding whether brain death is present.     In re Welfare of Bowman, 617
                P.2d 731, 732 (Wash. 1980). However, the statutory requirements of
                Nevada's Determination of Death Act that death be deteimined using
                "accepted medical standards" and that the Act be applied and construed in
                a manner "uniform among the states which enact it," NRS 451.007,
                necessitates a legal analysis regarding what the accepted medical
                standards are across the country. Thus, a brief overview of the Uniform
                Determination of Death Act, its predecessor the Uniform Brain Death Act,
                and their adoption in Nevada will provide perspective to the parties'
                arguments.

SUPREME COURT
        OF
     NEVADA
                                                     10
(0) 1947A
                   Uniform Determination of Death Act
                               The Uniform Law Commission first created a uniform act
                   regarding brain death in 1978, entitled the Uniform Brain Death Act.
                   State v. Guess, 715 A.2d 643, 649 (Conn. 1998). However, due to confusion
                   regarding the criteria of the act, the Uniform Law Commission replaced
                   the Uniform Brain Death Act with the Uniform Determination of Death
                   Act of 1980 (UDDA). See id.     The UDDA provided that "[aml). individual
                   who has sustained either (1) irreversible cessation of circulatory and
                   respiratory functions, or (2) irreversible cessation of all functions of the
                   entire brain, including the brain stem, is dead." UDDA § 1, 12A U.L.A.
                   781 (2008). The UDDA and similar brain death definitions have been
                   uniformly accepted throughout the country.     See Leslie C. Griffin & Joan
                   H. Krause, Practicing Bioethics Law 106 (2015) ("Thus all fifty states
                   define brain death as legal death even if the heart continues to beat.");
                   Eun-Kyoung Choi et al., Brain Death Revisited: The Case for a National
                   Standard, 36 J.L. Med. & Ethics 824, 825 (2008) (stating that the UDDA
                   "provides the national legal framework for defining death").

                   Nevada's Determination of Death Act
                               In 1979, Nevada adopted the Uniform Brain Death Act
                   (UEDA). Hearing on S.B. 5 Before the Assembly Judiciary Comm, 60th
                   Leg. (Nev., April 10, 1979). Under the UBDA, determinations of death
                   had to be made, "in accordance with reasonable medical standards." 1979
                   Nev. Stat., ch. 163, § 1, at 226. In 1985, Nevada amended NRS 451.007
                   and adopted the UDDA. 1985 Nev. Stat., ch. 62, § 1, at 130. Subsequent
                   to that adoption, NRS 451.007, much like its predecessor the UBDA,
                   provides two different methods for determining death: "For legal and
                   medical purposes, a person is dead if the person has sustained            an

SUPREME COURT
      OF
    NEVADA
                                                         11
(0) 1947A 440)(4
                irreversible cessation of: (a) Circulatory and respiratory functions; or (b)
                All functions of the person's entire brain, including his or her brain stem."
                NRS 451.007(1) (emphases added). In contrast to the UBDA, which only
                required determinations of death to be made according to reasonable
                medical standards, the UDDA required that determinations of death
                "must be made in accordance with accepted medical standards," and
                applied and construed in a manner "uniform among the states which enact
                it." NRS 451.007(2)-(3). In so doing, the UDDA sought to achieve greater
                uniformity in making such important and profound medical
                determinations.
                            The legislative history of NRS 451.007 makes clear that the
                legislative purpose was to ensure there was no functioning at all of the
                brain before determining death. When considering the adoption of the act,
                physicians and medical professionals testified in support of the bill.
                Hearing on S.B. 5 Before the Assembly Judiciary Comm., 60th Leg. (Nev.,
                February 27, 1979). For example, Dr. Don Olson, a physician and
                professor at the Nevada Medical School, testified that physicians currently
                use the "Harvard" criteria to determine brain death.     Id. After the first
                three steps of the Harvard criteria, physicians "additionally run EEGs
                (electroencephalograms) 24 hours apart, to see how the brain is
                functioning before they would pronounce the final decision of 'Brain
                Death." Id.    During the second hearing regarding the adoption of the
                UBDA, one senator stated: "if there was a heartbeat and a brainwave, the
                life support system cannot be disconnected and to do so would be murder."
                Hearing on S.B. 5 Before the Assembly Judiciary Comm., 60th Leg. (Nev.,
                April 10, 1979) (emphasis added). And, Frank Daykin of the Legislative
                Counsel Bureau testified that "this bill gave a standard for determining

SUPREME COURT
         OF
     NEVADA
                                                     12
(0) I94Th-
                brain death which is expressed in terms of functioning              of the
                brain. . . Once all functioning of the brain has ceased, medically the
                person is considered dead."      Id. (emphases added). Based on this
                testimony, the Committee approved the bill. Id.

                Are the AAN guidelines considered "accepted medical standards," which
                adequately measure all functions of a person's entire brain, including the
                brain stem?
                            The district court focused exclusively on whether St. Mary's
                physicians satisfied the AAN guidelines, without discussing whether the
                AAN guidelines satisfy NR,S 451.007. Although St. Mary's presented
                testimony that the AAN guidelines are the accepted medical standard in
                Nevada—albeit a simple "yes" to the question of whether the AAN
                guidelines are the accepted medical standard in Nevada—the district
                court and St. Mary's failed to demonstrate that the AAN guidelines are
                considered "accepted medical standards" that are applied uniformly
                throughout states that have enacted the UDDA as sufficient to meet the
                UDDA definition of brain death. The district court did not reach this issue
                at all, while St. Mary's has only cited one source to support its argument
                that the AAN guidelines are the nationally accepted medical standard
                            St. Mary's cites the New Jersey Law Revision Commission's
                Report relating to the Declaration of Death Act. However, the report
                actually supports the opposite conclusion for which St. Mary's argues. In
                the report, New Jersey decided against adopting the AAN guidelines,
                stating that the AAN guidelines "are not uniformly accepted in the
                national (or even international) medical community."        See N.J. Law
                Revision Comm'n, Final Report Relating to New Jersey Declaration of
                Death Act, at 14 (Jan. 18, 2013). Further, the report cited to multiple
                studies suggesting that "the AAN guidelines need more research" and
SUPREME COURT
        OF
     NEVADA

                                                    13
(0) 1947A
                   "there is still a great variety of practice in US hospitals" even though the
                   AAN guidelines were published in 1995. Id. at 10. Despite recognizing
                   the AAN as guidelines "upon which most hospitals and physicians rely,"
                   the report concluded that the AAN guidelines were not so broadly adopted
                   and utilized as to have become the accepted medical standard for
                   determining brain death.      Id. at 14. Based on the foregoing, and the
                   record before us, we are not convinced that the AAN guidelines are
                   considered the accepted medical standard that can be applied in a way to
                   make Nevada's Determination of Death Act uniform with states that have
                   adopted it, as the UDDA requires. NRS 451.007(3) (recognizing that the
                   purpose of adopting the UDDA in Nevada "is to make uniform among the
                   states which enact it the law regarding the determination of death").
                                Contrarily, extensive case law demonstrates that at the time
                   states began to adopt the UDDA, the uniformly accepted medical standard
                   that existed was the then so-called Harvard criteria. 7 The Harvard



                         7See  Hearing on S.B. 5 Before the Assembly Judiciary Comm., 60th
                   Leg. (Nev., February 27, 1979) (discussing Harvard criteria); see also
                   United States v. Gomez, 15 M.J. 954, 959 (A.C.M.R. 1983) ("The
                   determination [of death] in either case must be made in accordance with
                   accepted medical standards, such as the Harvard Brain Death tests.");
                   Gallups v. Cotter, 534 So. 2d 585, 586 n.1 (Ala. 1988) ("An increasing
                   number of states have adopted this so-called 'Harvard' definition of brain
                   death, either by statute or court decision."); State v. Fierro, 603 P.2d 74,
                   77-78 (Ariz. 1979) ("We believe that while the common law definition of
                   death is still sufficient to establish death, the test of the Harvard Medical
                   School or the Commissioners on Uniform State Laws, if properly
                   supported by expert medical testimony, is also a valid test for death in
                   Arizona."); Lovato v. Dist. Court in & for Tenth Judicial Dist., 601 P.2d
                   1072, 1076 (Colo. 1979) ("These [Harvard] criteria constitute the basis of
                   accepted medical standards for determination of brain death."); State v.
                   Guess, 715 A.3d 643, 648 (Conn. 1998); Janus v. Tarasewicz, 482 N.E.2d
                                                                          continued on next page...
SUPREME COURT
      OF
    NEVADA
                                                          14
(0) 1947A (9710m
                criteria require three steps, followed by a flat EEG as a confirmatory test:
                (1) unreceptivity and unresponsivity to painful stimuli; (2) no spontaneous
                movements or spontaneous respiration; and (3) no reflexes, as
                demonstrated by no ocular movement, no blinking, no swallowing, and
                fixed and dilated pupils. Ad Hoc Comm. of the Harvard Med. Sch., A
                Definition of Irreversible Coma, 205 JAMA 337, 337-38 (1968) [hereinafter
                Harvard Report]; see also In re Welfare of Bowman, 617 P.2d at 737. After
                the first three steps, the report recommends requiring flat EEGs, which
                serve as "great confirmatory value." 8 Harvard Report, supra, at 338. "All



                ...continued
                418, 422 (Ill. App. Ct. 1985) (citing to the Harvard criteria as "widely
                accepted characteristics of brain death"); Swafford v. State, 421 N.E.2d
                596, 599 (Ind. 1981); Commonwealth v. Golston, 366 N.E.2d 744, 747
                (Mass. 1977) ("The Harvard Committee developed basic clinical criteria,
                which are generally accepted by the medical community."); State v. Meints,
                322 N.W.2d 809, 815 (Neb. 1982); People v. Eulo, 472 N.E.2d 286, 298 n.15
                (N.Y. 1984) ("This [Harvard] test has served as the foundation for
                currently applied tests for determining when the brain has ceased to
                function."); State v. Clark, 485 N.E.2d 810, 812 (Ohio Ct. App. 1984)
                (discussing expert witness testimony that "physicians in Ohio generally
                use the Harvard standards which require two flat EEG tests within a
                twenty-four-hour period"); In re Welfare of Bowman, 617 P.2d 731, 737
                (Wash. 1980) ("In 1968, a Harvard Medical School committee developed
                criteria which now constitute the basis of accepted medical standards for
                the determination of brain death."); Black's Law Dictionary 170 (5th ed.
                1979) (incorporating the Harvard criteria into the definition of brain
                death).

                      8 TheHarvard Report states the following regarding the use of the
                EEG tests: "The condition [of brain death] can be satisfactorily diagnosed
                by points 1, 2, and 3 to follow. The electroencephalogram (point 4)
                provides confirmatory data, and when available it should be utilized."
                Harvard Report, supra, at 337.


SUPREME COURT
        OF
     NEVADA
                                                     15
(0) 1947A
                of the above tests shall be repeated at least 24 hours later with no
                change." Id.
                             It appears from a layperson's review of the Harvard criteria
                versus the AAN guidelines that the AAN guidelines incorporated many of
                the clinical tests used in the Harvard criteria. 9 See Am. Acad. of
                Neurology, Update: Determining Brain Death in Adults, 74 Neurology
                1911 (2010). However, the AAN guidelines do not require
                confirmatory/ancillary testing, such as EEGs.     Id.   Although the AAN
                guidelines state that ancillary testing should be ordered "only if clinical
                examination cannot be fully performed due to patient factors, or if apnea
                testing is inconclusive or aborted," the AAN's own study recognized that a
                decade after publication of the guidelines, 84 percent of brain death
                determinations still included EEG testing. See David M. Greer et al., Am
                Ass'n of Neurology Enters., Inc., Variability of Brain Death Determination
                Guidelines in Leading US Neurologic Institutions, 70 Neurology 1, 4 Table
                2 (2007).
                             While the Harvard criteria may not be the newest medical
                criteria involving brain death, we are not convinced with the record before
                us that the AAN guidelines have replaced the Harvard criteria as the
                accepted medical standard for states like Nevada that have enacted the
                UDDA. 19 We recognize the Legislature's broad definition of "accepted


                      9See  also Choi et al., supra, at 827 ("In summary, although several
                guidelines have been suggested over time, there seems to be consensus on
                essential components necessary for determining brain death, and these
                essential components have not radically evolved since the Harvard criteria
                of the late 1960s.").

                     w"No court has refused to accept the 'Harvard criteria." James Peter
                Padraic Dirr, The Bell Tolls for Thee: But When? Legal Acceptance of
                                                                continued on next page...
SUPREME COURT
        OF
     NEVADA
                                                    16
(0) 1947A
                 medical standards" to promote "the development and application of more
                 sophisticated diagnostic methods." People v. Eulo, 472 N.Ed.2d 286, 296
                 n.29 (N.Y. 1984) ("Any attempt to establish a specific procedure might
                 inhibit the development and application of more sophisticated diagnostic
                 methods."). Therefore, we hesitate to limit the criteria to determine brain
                 death "to a fixed point in the past."        State v. Guess, 715 A.3d 643, 650
                 (Conn. 1998) ("We have searched unsuccessfully for evidence that the
                 legislature intended to render immutable the criteria by which to
                 determine death. In the absence of any such indication, we are loath to
                 limit the criteria to a fixed point in the past.").
                              Regrettably, however, the briefing and record before us do not
                 answer two key questions. First, the briefing and testimony do not
                 establish whether the AAN guidelines are considered accepted medical
                 standards among states that have enacted the UDDA. Besides the single
                 citation to the New Jersey Law Revision Commission Report, which as
                 discussed above does not four-square support St. Mary's position, St.
                 Mary's has failed to cite in its brief or during oral argument any medical
                 or legal document that supports the AAN guidelines as accepted medical
                 standards under the UDDA definition. Second, whatever their medical


                 ...continued
                 "Brain Death" as a Criteria for Death, 9 Am J Trial Advoc. 331, 340
                 (1985); see also Jerry Menikoff, Importance of Being Dead: Non-Heart-
                 Beating Organ Donation, 18 Issues L. & Med. 3, 7 (2002) ("Thus, even
                 today, if you look in almost any major textbook on internal medicine,
                 emergency medicine, or physical diagnosis, you may perhaps find a
                 complicated and detailed protocol that discusses how to declare someone
                 dead using 'brain death' criteria; that protocol is likely to be based on the
                 initial recommendations of the Harvard Committee ... ."); see supra
                 note 7.

SUPREME COURT
        OF
     NEVADA
                                                         17
(0) 1947A    e
                  acceptance generally, the briefing and testimony do not establish whether
                  the AAN guidelines adequately measure the extraordinarily broad
                  standard laid out by NRS 451.007, which requires, before brain death can
                  be declared under the UDDA, an "irreversible cessation" of "[a]ll functions
                  of the person's entire brain, including his or her brain stem."H MRS
                  451.007(1) (emphases added). Though courts defer to the medical
                  community to determine the applicable criteria to measure brain
                  functioning, it is the duty of the law to establish the applicable standard
                  that said criteria must meet. In re Welfare of Bowman, 617 P.2d 731, 732


                        "The experts proffered by St. Mary's did not discuss whether the
                  AAN guidelines measure all functions of one's entire brain, including the
                  brain stem. Although the family's expert, Dr. Brian Callister, suggested
                  that the AAN guidelines do not adequately test for a cessation of all
                  functions of the entire brain, but rather only test if there is a functioning
                  cortex (excluding the mid or hind parts of the brain), the record is wholly
                  undeveloped on this matter. A cursory review of medical research raises
                  concerns about brain death testing comporting with NRS 451.007. See
                  Choi et al., supra, at 826 ("[S]ome features of brain function remain intact
                  after brain death (e.g., posterior pituitary secretion of anti-diuretic
                  hormone and thermoregulation). This raises an inconsistency with the
                  definition of brain death in the UDDA: 'irreversible cessation of all
                  functions of the entire brain, including the brain stem."); Seema K. Shah,
                  Piercing the Veil: The Limits of Brain Death as a Legal Fiction, 48 U.
                  Mich. J.L. Reform 301, 311-12 (2015) ("Many brain-dead patients still
                  have at least one functioning part of the brain—the hypothalamus,
                  which continues to secrete vas opressin through the posterior
                  pituitary. . . . [M]any brain-dead patients do not lose all neurological
                  function, as the UDDA and state laws explicitly require to determine brain
                  death."); D. Alan Shewmon, Brain Death or Brain Dying?, 27 J. Child
                  Neurology 4, 5 (2012) ("It has long been recognized that in some cases of
                  clinically diagnosed brain death, certain brain structures may not only be
                  preserved but actually function, such as the hypothalamus (in cases
                  without diabetes insipidus), relay nuclei mediating evoked potentials, and
                  cerebral cortex mediating electroencephalographic activity.").

SUPREME COURT
      OF
    NEVADA
                                                       18
OD 1947A cogatA
                 (Wash. 1980). The record before us does not discuss whether the AAN
                 guidelines require an irreversible cessation of all functions of a person's
                 entire brain, including the brain stem, as NRS 451.007(1)(b) demands.
                 Therefore, we are not convinced that St. Mary's properly determined death
                 as required under NRS 451.007. Thus, we hold that the district court
                 erred in denying Gebreyes's motion for a temporary restraining order.

                                               CONCLUSION
                             We recognize the important implications this case has for
                 physicians, hospitals, families, patients, and, most importantly, Aden
                 Hailu and her family This court does not attempt to replace its judgment
                 for that of medical experts, nor does it attempt to set in stone certain
                 medical criteria for determining brain death Instead, as an important
                 issue of first impression in Nevada and beyond, we decline to make that
                 determination based on the undeveloped record before us. If St. Mary's
                 continues to advocate for only being required to follow the AAN guidelines,
                 expert testimony is necessary to demonstrate that those guidelines, if met,
                 establish "an irreversible cessation of. . . faill functions of the person's
                 entire brain, including his or her brain stem" 12 and that this is the
                 accepted view of the medical community As the record does not establish
                 these key points, we reverse the district court's order denying a temporary


                       l2Although we decline to order specific testing, it gives us pause that
                 St. Mary's conducted three EEG tests in April, all of which showed brain
                 functioning, but has failed to conduct further EEG testing. Instead of
                 conducting a fourth EEG test, for confirmatory value after determining
                 brain death, St. Mary's contends that EEG testing is not necessary. In
                 oral argument, when asked why St. Mary's conducted three EEG tests if it
                 believed that EEG testing was not necessary, counsel stated: "I don't
                 know."

SUPREME COURT
      OF
    NEVADA
                                                      19
(0) 1947A 40(4
                 restraining order and permanent injunction, extend the interim stay
                 entered pending review by this court of the parties' expedited appeal, and
                 remand for further proceedings consistent with this opinion.




                 We concur:



                                              C.J.
                 Hardesty


                   ax
                 Parraguirre
                                                J.



                    2g)
                 Douglas


                                                J.




                 Saitta



                     ons




SUPREME COURT
        OF
     NEVADA
                                                     20
(0) 1947A    e
