In North Carolina, can someone other than a licensed physician legally pronounce a person dead?

Plain-English summary

In 1980, North Carolina's Chief Medical Examiner asked the Attorney General a deceptively basic question: is determining whether a person is dead something that, under state law, only a licensed physician can do?

The AG's answer was yes. The chain of reasoning ran through two statutes.

G.S. 90-18 defined the practice of medicine broadly: anyone who "shall diagnose or attempt to diagnose, treat or attempt to treat . . . or profess to treat any human ailment, physical or mental . . . of another person" was practicing medicine. The statute carved out fourteen exceptions, including authorized acts by physician assistants and nurse practitioners. Determining whether a patient required treatment, and what treatment, was diagnosis. Determining whether a person was alive or dead was a logically prior question to that, so it fell within the diagnostic act and was the practice of medicine.

G.S. 90-323, enacted in 1979 as part of North Carolina's Right to Natural Death Act, removed any doubt. It stated that "the determination that a person is dead shall be made by a physician licensed to practice medicine applying ordinary and accepted standards of medical practice." The same provision authorized brain death as a basis for the determination, but the AG cautioned that this did not narrow the physician-only rule to brain-death situations. Whether the criterion was cardiopulmonary or neurological, the determining authority had to be a licensed physician.

The AG also drew an important practical line. The rule did not require a physician to be physically summoned to "pronounce" every dead body. A partially decomposed body found in the woods, for example, did not need a physician to walk in and declare death; the question of whether life-saving measures should continue was already moot. The rule applied when there was an actual question whether the person was alive or dead, the moment where pronouncement determined whether resuscitation continued or was withheld.

G.S. 130-46 separately required a physician to certify the cause of death on the death certificate, but again did not require a physician to "pronounce" each death. G.S. 130-198 required medical examiner notification for certain deaths (sudden, suspicious, unattended), but medical examiners had their own duties (investigate, report, complete certificate, order autopsies if appropriate); they did not have to pronounce a death themselves.

Currency note

This opinion was issued in 1980. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina's death-determination framework has evolved since 1980. The Right to Natural Death Act has been amended multiple times and is now part of Chapter 90, Article 23. The brain-death standard now expressly incorporates the Uniform Determination of Death Act standards. EMS personnel and registered nurses have been given limited statutory authority in specific settings to pronounce death (e.g., hospice and nursing-home contexts under amendments such as those reflected in current G.S. 90-322 and related provisions). Anyone confronting a current legal question about who may pronounce death should check current Chapter 90 provisions, current EMS scope-of-practice rules, and Department of Health and Human Services regulations governing nursing facilities and hospice.

Background and statutory framework

The question came to the AG in a particular technological moment. The 1970s had seen the spread of mechanical ventilation, organ transplantation, and the development of brain-death criteria. The 1968 Harvard Ad Hoc Committee report and the 1981 federal President's Commission report on Defining Death framed a national policy debate. North Carolina's 1979 Right to Natural Death Act (Article 23 of Chapter 90) was the state's response, recognizing brain death and creating a statutory framework for declining or withdrawing life-prolonging measures.

The Chief Medical Examiner's office sat at the intersection of these questions. Bodies presented in many states: clearly dead and decomposing, recently dead with no apparent cause, intubated and ventilated in an ICU, victims of trauma, infants. The office needed clarity on when a physician's pronouncement was legally required.

The AG opinion did three useful things. First, it confirmed that the practice-of-medicine statute already required physician involvement in the determination, independent of the new Right to Natural Death Act. Second, it confirmed that G.S. 90-323 codified the same rule with explicit brain-death authority. Third, it drew the common-sense line that the rule applied to real determinations, not formal pronouncements over already-decomposed bodies, which were a clerical matter for the death certificate.

The opinion left some questions open. It did not address the role of registered nurses or physician assistants in specific settings (a hospice patient's expected death overnight, for example). It did not address the role of EMS personnel in the field when a patient was found in cardiac arrest with obvious lividity. Both questions would become subjects of later legislation and regulation as those professions gained scope-of-practice authority.

The Right to Natural Death Act's brain-death recognition was conservative for its era. By 1980, brain death was an accepted medical standard but had not yet been universally codified. North Carolina's statute allowed but did not require its use. The AG noted that the brain-death option was an alternative, not a substitute, and did not limit the physician-only rule to cases where brain-death criteria were applied.

Common questions

Could a nurse in a hospital pronounce a patient dead in 1980?

Under the 1980 opinion's reading of G.S. 90-18 and G.S. 90-323, a nurse who lacked physician-assistant or nurse-practitioner authority could not legally determine death as a medical-practice matter. In hospitals, the practical workflow was that nurses identified that a patient appeared deceased and called the physician, who pronounced. The opinion did not address whether a nurse practitioner could pronounce death under G.S. 90-18.2's grant of authority for "medical acts when so authorized."

What about a coroner or medical examiner who is not a physician?

North Carolina has used physician medical examiners under Chapter 130 for decades. The opinion did not envision non-physician death determinations by examiners; it instead noted that examiners' duties were investigative and certificative, not pronouncing.

Did this opinion address withdrawal of life support?

No. The opinion was strictly about who could determine that death had occurred. The Right to Natural Death Act, the statute G.S. 90-323 sat in, separately addressed the legal authority to withhold or withdraw extraordinary life-prolonging measures. The two questions were related but distinct.

Could the rule be relaxed in mass-casualty or wilderness contexts?

The opinion did not address mass casualty events or remote settings. By implication, the practical exception for "obviously deceased" bodies (the partially decomposed body in the woods example) would extend to similar settings where the question of life-saving measures was already moot. North Carolina's modern emergency-services and disaster-response statutes have built out more specific authority for paramedics and EMTs in field settings.

Source

• Landing page: https://ncdoj.gov/opinions/physicians-determination-of-death-the-practice-of-medicine/

Citations

• G.S. 90-18 (practice of medicine definition)
• G.S. 90-18.1, 90-18.2 (PA and nurse practitioner exceptions)
• G.S. 90-323 (physician determines death; brain death authorized)
• G.S. 130-46 (death certificate cause certification)
• G.S. 130-198 (medical examiner notification)

Original opinion text

Requested By: Page Hudson, M.D. Chief Medical Examiner Medical Examiner Section Division of Health Services

Question: Is the determination of death regarded as "practicing medicine or surgery" as defined in G.S. 90-18?

Conclusion: Yes.

G.S. 90-18 states in part that "(a)ny person shall be regarded as practicing medicine or surgery within the meaning of this Article who shall diagnose or attempt to diagnose, treat or attempt to treat, operate or attempt to operate on, or prescribe for or administer to, or profess to treat any human ailment, physical or mental, or any physical injury to or deformity of another person." The broad scope of this definition is limited by fourteen exceptions set forth in the statute. For instance, physician assistants and nurse practitioners may perform medical acts when so authorized. See G.S. 90-18.1 and 90-18.2. Determination of whether a person requires treatment and the nature of the treatment is diagnosis of a human ailment and therefore constitutes the practice of medicine. Determination of whether a person is living or dead is a component of diagnosis of a human ailment.

G.S. 90-323, enacted in 1979 as part of the revision of Article 23 of Chapter 90 relating to the right to natural death and brain death, clearly addresses this issue. It states in part that "(the) determination that a person is dead shall be made by a physician licensed to practice medicine applying ordinary and accepted standards of medical practice."

The section further states that brain death may be used as a basis for determination of death. The reference to brain death in the section does not limit the requirement of determination of death by a physician to only occasions where brain death is employed as the determination criterion. Such a construction would be inconsistent with the plain words of the statute and the definition of the practice of medicine or surgery in G.S. 90-18.

Our opinion that determination of death is required to be made by a physician does not necessitate that a physician must be summoned to "pronounce" an obviously deceased body dead as, for example, in the case of the finding of a partially decomposed body in the woods. The law only requires that a death certificate shall be filed for each death which occurs in the State. The medical certificate portion of the certificate must be completed by the attending physician, a hospital physician or the physician who performed an autopsy. G.S. 130-46 only requires that a physician certify the cause of death. It also does not require that a physician must pronounce every individual dead. Finally, G.S. 130-198, which requires medical examiners to be notified of certain deaths, does not mandate that a medical examiner pronounce any person dead. The duties of a medical examiner are to investigate, file a report, complete the death certificate, and, if appropriate, order an autopsy.

Therefore, it is the opinion of this Office that determination or pronounce of death is an integral part of the practice of medicine because it dictates whether life-saving measures will be discontinued or not initiated at all. However, it is necessary only when there is a question of whether an individual is alive or dead.

Rufus L. Edmisten
Attorney General

Robert R. Reilly
Assistant Attorney General