Executions Halted as Doctors Balk
By Pauline Vu, Staff Writer
A conflict between medical ethics and court orders that a doctor participate in lethal injections has halted executions in California, Missouri and North Carolina. But the ethical issue raised by doctors in the death chamber lurks beneath the surface in most of the 37 capital-punishment states that sanction chemical execution, a mode of death also facing separate constitutional challenges over whether it unduly inflicts pain on prisoners.
The American Medical Association is adamant that it is a violation of medical ethics for doctors to participate in, or even be present at, executions. But recent court rulings have called for people with medical expertise to assist in executions by mixing and injecting the lethal drugs or monitoring the inmate's vital signs.
"That's the conundrum, right? The people who are best able to ensure that the Eighth Amendment against cruel and unusual punishment is not going to be violated are the people who want to have nothing to do with this," said Deborah Denno, a professor at Fordham University School of Law and a capital-punishment expert.
Lethal injection, in theory, provides a quiet death in which inmates simply sleep and never awaken. First used in 1982, it was seen as a more humane alternative to the gas chamber, electric chair, firing squad or gallows. (Nebraska is the only of 38 states with the death penalty not to use lethal injection; it still uses the electric chair.)
But personnel with little or no medical training at times have struggled to find veins of inmates or have incorrectly administered the drugs. In Florida, the December execution of Angel Diaz, who killed a topless club manager, required 34 minutes - twice the usual time - and two lethal doses because, on the first attempt, the needle missed the vein and went into soft tissue. It was later revealed that the lead executioner had no medical training whatsoever.
The death penalty is now on hold in 13 states, in 11 because of questions over use of lethal injections. Three of those moratoriums force a spotlight on the largely hidden role of doctors in overseeing executions.
The sharpest debate over use of doctors in executing prisoners is shaping up in North Carolina, where the state corrections department and the state medical board are headed for a showdown over the board's declaration that it will punish any doctor who participates in executions.
The fight in North Carolina is the first time a state medical board, a state agency that licenses and disciplines physicians, willingly has pushed itself into the debate. Months after a judge said a doctor must monitor a death-row inmate's vital signs to ensure there is no pain, the state's medical board in January said it would punish any doctor who did anything more than observe executions. As a result, a judge has stayed five executions.
The situation escalated March 6 when the North Carolina Department of Corrections filed a lawsuit seeking to strip away the medical board's power to punish physicians for assisting in executions. The corrections department claimed that executions aren't medical procedures and so aren't under the jurisdiction of the board.
In California, a federal judge in February 2006 ordered anesthesiologists to be at the execution of Michael Morales, who killed and raped a 17-year-old girl, after hearing evidence that previous inmates still may have been conscious when the final, heart-stopping drug in the lethal mix was injected. But two anesthesiologists who agreed to be present later backed out when they realized they might have to participate should something go wrong. Morales' execution was stayed.
In December, a federal judge found that California's current lethal-injection procedure is unconstitutionally cruel and unusual. Among the reasons were lack of training for the execution team and improper mixing of the anesthetic. While the judge ruled that a medical professional wasn't required, he said the state's lethal-injection procedures must ensure that enough anesthetic is given and provide a reliable way to monitor the inmate's vital signs.
In Missouri, a lawsuit by inmate Michael Taylor, who killed and raped a 15-year-old honor student, exposed that a dyslexic surgeon was mixing the lethal drugs, despite little training in anesthesiology, no written execution protocol and little oversight. The judge called for a licensed anesthesiologist to be used. The state then sent letters to 298 certified anesthesiologists in Missouri and southern Illinois but could find no one willing to participate.
In Maryland, where one inmate's lawyers demanded the state add a general surgeon to the execution team, the state likewise said it wouldn't be able to find doctors.
Although the AMA objects to doctors' participation in executions, it cannot punish doctors who disobey its advice. That power is left to state medical boards, but no doctor yet has been punished for participating in an execution.
However, a group of doctors led by Dr. Arthur Zitrin, a professor of psychiatry at New York University School of Medicine, is suing to force Georgia's medical board to punish three physicians who participated in executions. The suit was dismissed by the trial court, but the state court of appeals will hear oral arguments in April.
"I think physician participation is improper. I think it's unethical. I think it violates the principles of medical ethics," Zitrin said. "Doctors are committed to saving lives and providing health care, not killing people."
Not all doctors agree with Zitrin, however. A 2001 survey published by the Annals of Internal Medicine polled 413 doctors and found that 19 percent were willing to inject the lethal drugs. More were willing to perform other acts that the AMA said would violate medical ethics, such as ordering the lethal drugs, supervising those who inject the drugs, or placing IV lines.
Until recently, the extent of physician participation had been unclear to the public. According to a 2005 article in The Journal of Legal Medicine , 17 states require physician participation in executions. The extent of participation, however, is unclear. While Colorado and Georgia state that physicians must participate "to the extent necessary," most of the states call for doctors to declare death or simply be present - with other potential duties unmentioned.
An additional 18 states allow for the participation of doctors, sometimes by not explicitly prohibiting them, according to the article. Missouri's execution protocols, for example, don't mention medical personnel, but the recent court case revealed that a doctor had been filling syringes with anesthetic.
Only two states - Illinois and Kentucky - forbid doctors from participating in or attending executions.
States are confronting the physician dilemma in a variety of ways. Georgia and Oklahoma recently enacted laws that forbid state medical boards from punishing medical workers who participate in executions. The new Georgia law would block Zitrin's attempts to punish doctors in future executions, but his lawsuit still seeks penalties on doctors involved in executions before the law took effect.
In South Dakota, the House recently passed a measure that would no longer require a physician to be present at executions, at the request of doctors. Although taking doctors out of the lethal injection process might solve their ethical issues, it wouldn't solve those of the state, which would still have to deal with the qualifications of the lethal-injection team.
A Missouri bill would ensure that doctors who participate remain anonymous. Newspapers that publish such a doctor's name, for example, could be charged with a misdemeanor.