Observations Regarding Lethal Injection

June 30, 2006

Message From the President

Observations Regarding Lethal Injection

By Orin F. Guidry, M.D.

Lethal injection is getting increasing attention from the courts and the media. Your patients or the local media may well ask you about this subject. Recent court rulings even make it more likely that you may be asked to personally participate.

Because you may be asked to get personally involved, I would like to discuss with you ASA’s position and my personal views.

The subject first heated up in California where the United States District Court for the Northern District of California had concerns that lethal injection may violate the Eighth Amendment of the Constitution’s prohibition against cruel and unusual punishment. In this context, the courts are universally holding that the administration of pancuronium and/or potassium – with the resulting pain - to an aware inmate is cruel and unusual punishment. It is becoming increasingly clear that the courts will require reasonable assurance that the inmate is adequately anesthetized prior to these injections.

What led the court to this increasingly prevalent view? Two factors. One is an article in the April 16, 2005 issue of The Lancet titled “Inadequate anaesthesia in lethal injection for execution,” authored by Koniaris, Zimmers, Lubarsky, and Sheldon. Part of their conclusion was “Toxicology reports from Arizona, Georgia, North Carolina, and South Carolina showed that post-mortem concentrations of thiopental in the blood were lower than that required for surgery in 43 of 49 executed inmates (88%); 21 (43%) inmates had concentrations consistent with awareness.” There are several letters to The Lancet that question the scientific validity of the study, in part because of when the blood samples were drawn. However this is the only scientific data on this subject that I know of.

You may also want to read the accompanying Lancet editorial “Medical collusion in the death penalty: an American atrocity,” which has a decidedly political slant. This is a good time to point out that the subject being discussed currently is the involvement of anesthesiologists in lethal injections. It is NOT what you or I think about the morality or legality of capital punishment or what should happen to the inmates who are convicted of committing horrendous crimes.

The second concern of the courts is the anecdotal evidence of “botched” executions. The California case was the first to produce legal discovery of “execution logs” which are written descriptions of what transpired during prior executions. Six logs were introduced that questioned whether inmates were awake during the injection of painful substances. In addition there are now over thirty media accounts of executions that had problems, one as recently as May 2nd, 2006 in Ohio.

Each of us, as anesthesiologists, would say that five grams of thiopental (the usual dose administered during lethal injection) should be sufficient to anesthetize anyone. Why are these executions “botched”? The inmates may not be getting this dose intravenously. IV access is often difficult. The persons preparing and administering the drugs usually are not observing the inmate. The process is divided into a number of steps done by different individuals to minimize the onus on any one person. The nature of the inmate or the situation may require a larger dose. Many of the personnel involved lack formal training or clinical experience in providing sedation or anesthesia care to patients.

What have the courts done in response to this concern?

The California court ruled on February 14, 2006 that the state must “Agree to independent verification, through direct observation and examination by a qualified individual or individuals, in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered, that Plaintiff in fact is unconscious before either pancuronium bromide or potassium chloride is injected.” The court then defined a “qualified individual” as “a person with formal training and experience in the field of general anesthesia.”

The state produced two anesthesiologists who agreed to participate but subsequently declined the next day. This execution has not yet taken place.

North Carolina faced a similar situation in April of this year and the United States District Court ruled that it would permit lethal injection only if “there are present and accessible to Plaintiff throughout the execution personnel with sufficient medical training to ensure that Plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride.” The state responded by modifying the execution protocol by adding the use of a BIS monitor and said in their affidavit that “It is also my understanding that the BIS monitor can be employed and operated and values obtained, recorded, and interpreted by any health care providers experienced in using electrocardiogram (ECG) monitors, such as registered nurses, paramedics, and emergency medical technicians (EMT's).” We should all be concerned with the assumption that a BIS value taken alone is a satisfactory measurement of anesthetic depth and that virtually anyone can apply and interpret a BIS monitor.

The execution subsequently was carried out and a BIS monitor was used.

Aspect Medical Systems, the manufacturer of the BIS monitor, is very much opposed to its use in executions for several reasons. In my mind Aspect’s most significant objection is that a BIS value cannot be taken in isolation. Aspect said in its affidavit “Both Aspect and standard anesthesia treatises recommend that medical professionals integrate the BIS monitoring with their own direct observation of the patient (along with traditional monitoring - i.e., blood pressure, heart rate, respiratory rate, etc.)”.

The use of brain function monitoring during executions was the subject of a perspective in the New England Journal of Medicine. “New Technology, Old Dilemma - Monitoring EEG Activity during Executions” by Robert Steinbrook, M.D. was published in the June 15, 2006 issue. It probably should be on your reading list. The article also points out that there are now more than 3,300 inmates on death row.

More recently, the focus has turned to Missouri and my observation is that each successive ruling becomes more specific than the previous one. The US District Court Western District of Missouri ruling is as follows:

“1. Personnel
A board certified anesthesiologist shall be responsible for the mixing of all drugs which are used in the lethal injection process. If the anesthesiologist does not actually administer the drugs through the IV, he or she shall directly observe those individuals who do so. Additionally, the Operations Room shall be sufficiently lighted so that the corrections personnel can see which drugs are being administered.

2. Lethal Injection Drugs & Method of Administration
The level of thiopental administered shall not be less than 5 grams. Pancuronium Bromide and Potassium Chloride will not be administered until the anesthesiologist certifies that the inmate has achieved sufficient anesthetic depth so that the inmate will not feel any undue pain when the Potassium Chloride is injected. The State in conjunction with the anesthesiologist will have discretion to determine the most appropriate location on the inmate’s body to inject the drugs. The State shall specify in the protocol how the anesthesiologist will certify that the inmate has achieved the appropriate anesthetic depth.

3. Monitoring
The State will put in place procedures which will allow the anesthesiologist to adequately monitor the anesthetic depth of the inmate. This may require the State to purchase additional equipment in order to adequately monitor anesthetic depth. The State should also consider repositioning the gurney so that the inmate’s face will be visible to the anesthesiologist, using a mirror, or even allowing the anesthesiologist to be present in the room with the inmate when the drugs are injected.”

This is a remarkably specific prescription. In addition, this ruling also states: “The Court also did not find that Missouri physicians who are involved in administering lethal injections were violating their ethical obligations”.

The media report that the state of Missouri is actively searching for anesthesiologists to participate in the execution. Regardless of where you live, you may be asked to participate.

ASA does not have a detailed position on anesthesiologist participation in lethal injection but the 2001 House of Delegates “Approved a recommendation that ASA support the American Medical Association’s position regarding physician nonparticipation in executions.” Opinions on Social Policy Issues are part of the AMA’s Code of Ethics. One of these, E-2.06, addresses capital punishment. It begins by saying, “An individual's opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” It is very specific in defining what constitutes involvement in lethal injection by saying, “In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.”

Clearly an anesthesiologist complying with the Missouri ruling – and despite this court’s position on ethical obligations - would be violating the AMA position which ASA has adopted. It is my belief that the court cannot modify physicians’ ethical principles to meet its needs.

Even more troubling to me is the Missouri court’s move to require an environment more like an “operating room”. I am concerned because anesthesiologists actually have more of a reason not to be involved than other physicians. The more the execution looks like an anesthetic, the less comfortable patients are likely to be with anesthesia. Surgery is already a frightening time and one in which patients need to trust their anesthesiologist. The last thing patients need is to equate the O.R. with a death chamber, to equate anesthetic drugs with death drugs, or to have in their subconscious the specter of the anesthesiologist as an executioner.

We are being reluctantly placed on a slippery slope. If the courts demand that inmates be sufficiently anesthetized, then I would have to agree with the court that the only way to assure that would be to have an anesthesiologist prepare and administer the drugs, carefully observe the inmate and all pertinent monitors, and finally to integrate all this information. I don’t think that any of us would want to say that untrained individuals under current death chamber conditions can reliably produce a satisfactory level of unconsciousness. Our core skill is that we can induce an appropriate level of anesthesia. Are we willing to say that untrained individuals can also do so with a reasonable degree of success?

However if the only way to accomplish this appropriate level of anesthesia is with an anesthesiologist using all of our tools AND anesthesiologists will not participate, then are anesthesiologists stopping capital punishment and making public policy?

Not in my opinion. Lethal injection was not anesthesiology’s idea. American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection. The fact that problems are surfacing is not our dilemma. The legal system has painted itself into this corner and it is not our obligation to get it out.

This is a complex subject and anesthesiology is being reluctantly thrust into the middle of it. My advice would be to be well informed on the subject and steer clear.