Sara Dyehouse memo

State Of Florida

Department Of Corrections

Office of the general counsel

Memo To: Rosa Carson, General Counsel

From: Sara Dyehouse, Assistant General Counsel

Date: August 15, 2006

Subject: Use of bispectral index monitor during lethal injection procedure (revised)

As you know, death row inmates around the country have been challenging the three-drug sequence used in lethal injection procedures, alleging, in part, that the administration of pancuronium bromide and/or potassium chloride may cause the “unnecessary and wanton infliction of pain” if the sodium pentothal has failed to produce a sufficient level of unconsciousness prior to their administration. In response to this argument, courts in California and Missouri have required the presence of anesthesiologists at the execution to monitor the inmate’s level of consciousness. To date, after exhaustive attempts, neither state has been able to secure an anesthesiologist willing to participate in executions. In fact, the American Society of Anesthesiologists has recently adopted the position of the American Medical Association that medical professionals should not participate in any way in executions, as it would violate their Hippocratic Oath and their Code of Ethics.

So that the Department does not find itself in a similar situation, i.e., with a court order requiring the presence of an anesthesiologist, it has been my legal opinion (and continues to be my legal opinion) that the Department should incorporate into its existent lethal injection procedure the use of a bispectral index monitor, which can assess the inmate’s level of consciousness at all times, but especially following the administration of sodium pentothal and preceding the administration of the pancuronium bromide. The BIS monitor has been used by North Carolina in a previous execution and has withstood significant litigation, most frequently in Flippen v. Beck, case no. 5:06-CT-3062-H (E.D.N.C. July 25, 2006) (Mr. Flippen is scheduled to be executed on August 18, 2006). I have spoken on numerous occasions with North Carolina Deputy Attorney General Thomas Pittman (919-716-6500), who has been lead counsel in all of their litigation, about the BIS monitor, and he wholeheartedly endorses the use of this monitor.

Significantly, in incorporating the BIS monitor into its execution procedure, North Carolina has relied extensively on the expert opinion of Dr. Mark Dershwitz, a professor and academic vice chair of anesthesiology department at the University of Massachusetts