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Current law in the United States authorizes physicians to diagnose brain death by applying generally accepted neurologic criteria for determining loss of function of the entire brain. This article offers a medical-legal perspective on problems that may arise with respect to the determination of brain death. These include the possibility of diagnostic error, conceptual disagreements that may constrain the use of neurologic criteria to diagnose death, and the conflation of brain death and loss of consciousness. This article also addresses legal aspects of the debate over whether to expand the definition of brain death to include permanent unconsciousness. Although existing laws draw a clear distinction between brain death and the persistent vegetative state, many courts have authorized removal of life support from individuals whose unconsciousness is believed to be permanent on proof that removal accords with preferences expressed before sentience was lost.

Legal issues that may arise in neurodiagnostic testing are reviewed briefly. This article focuses on applications of medical malpractice law with respect to negligence in selection, conduct, and interpretation of tests. The impact of the doctrine of informed consent is considered both in the context of malpractice law and human subjects research. The article concludes with a short exposition on enterprise liability and diagnostic tests, indicating the ways in which the growing role of corporations in medical practice may prompt changes in how claims for test-related medical injuries are processed. This article aims to convey an appreciation of how the law attempts to reduce test-related harms by imposing liability on individuals and organizations.

Prevailing liberal rules of evidence permit qualified medical and scientific experts to offer opinions designed to help courts decide issues to which their expertise relates. The opinions can be based on direct examinations, review of data assembled by others and data or inferences of a type relied on by other experts in the field. Application of these rules is illustrated through analysis of expert testimony in litigation involving a neurologic syndrome allegedly caused by an immunization and in a case involving controversy over the extent and outcome of major brain injury. Concerns about misuse of expert medical and scientific testimony in litigation are addressed. The article closes with a consideration of approaches designed to improve the reliability of expert testimony.