New York Court Expands Right to Object to Brain Death

A New York court may have just expanded the rights of families to assert religious objections to brain death. As I explained here, for forty years, New York law has only required hospitals to give a reasonable accommodation (24 to 72 hours) after determining brain death.

In May 2017, New York Presbyterian Hospital determined that Yechezkel Nakar was dead on neurological criteria. The hospital then issued a death certificate over the religious objections of his family. Nakar was subsequently sustained at another New York hospital until he was determined dead on cardiopulmonary criteria 21 days later. (NY Post) In short, Nakar received medical support that was in accord with his Jewish beliefs.

Nevertheless, Nakar's wife filed a lawsuit in Brooklyn Supreme Court seeking to rescind the death certificate. Apparently, the reason was to make Nakar eligible for insurance coverage for the 21 days between the date of his death determined by neurological criteria and the date of his death determined by cardiopulmonary criteria.

The court has now apparently ruled in favor of Nakar's family. It is unclear yet what the grounds of the ruling. The family was seeking a broad right -"not proceeding to conduct the brain death test, and certainly would also mean to not declare the patient dead based on the brain death test."