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New York state laws and regulations that affect your medical practice

1. What are the criteria and testing for establishment of death?

Declarations of death must be made in accordance with accepted medical standards. At a minimum, each examining physician must be able to make the mandatory determinations set forth below and must document in the patient's chart the methods by which said determinations are made:

A. An irreversible cessation of all functions of the entire brain, including the brain stem, or

Hospitals are required to establish and implement a written policy regarding determinations of death in accordance with these criteria.

(10 NYCRR 400.16)

In making the determination that brain stem functions are absent, the physician should test pupillary light, corneal, oculocephalic, oculovestibular, oropharyngeal and respiratory (apnea) reflexes. Absence of all such reflexes must be found. In testing for apnea, pupillary response to light and ocular movements, the examining physician must be able to make the determinations specified below and, in doing so, perform the tests specified below:

APNEA: Spontaneous respirations must be determined to be absent.

PUPILS: Pupillary response to light must be determined to be absent.

OCULAR RESPONSES: Ocular responses must be determined to be absent to passive head turning and to cold caloric testing.

Physicians must establish that the cessation of all functions of the entire brain are irreversible. In making this determination, the physician should: 1) make reasonable efforts to establish the cause of the coma, which cause should be determined to be sufficient to account for the loss of brain functions; 2) establish that there is no possibility of any recovery of any brain functions by excluding the possibility of reversible conditions such as hypothermia, neuromuscular blockade, shock, or drug or metabolic intoxication; and 3) establish that the cessation of all brain functions persists for an appropriate period of observation.

2. What information is required on the death certificate?

A death certificate is required to contain the decedent's name, social security number, date of death and the place of death. The certificate shall contain a confidential section detailing the facts and circumstances of the decedent's death. If death is caused by an opioid overdose, such information must be contained in the certificate.

The facts contained on a death certificate shall be provided by a competent person who is acquainted with such facts. A hospital intern is not competent to provide such facts.

The death certificate is required to be made, dated and signed by the physician who last attended the decedent. The certificate shall contain definite terms; it is not sufficient that the certificate contain only the symptoms of disease or conditions resulting from disease.

Where a death occurs in a hospital, the person in charge of the hospital or his designated representative is required promptly to present the certificate to the attending physician. The attending physician shall promptly attest to the facts of death, provide the medical information required by the certificate, sign the certificate, and return it to such person so that the certificate can be registered within seventy two hours of the decedent's death. This requirement does not apply in cases where the certificate is issued by a coroner or a medical examiner.

(Public Health Law § 4141 and 4141-a; 10 N.Y.C.R.R. 35.4)

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

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