Doctors appeal ruling on executions

A North Carolina judge had said the state medical board can't bar members' involvement.

By Henry Weinstein, Los Angeles Times Staff Writer October 20, 2007

DURHAM, N.C -- .-- North Carolina doctors reasserted their opposition to participating in the executions of condemned criminals this week, appealing a judge's ruling that the state medical board cannot prohibit doctors from taking part in lethal injections.The appeal focused renewed attention on doctors' roles during executions. The U.S. Supreme Court and several other states are also considering whether executions by lethal injection cause excessive pain.

There has been considerable debate about whether doctors should be present during lethal injections, a conflict sometimes described by doctors as "The Hippocratic Paradox." On one hand, doctors may be needed to carry out a lethal injection execution so that it is consistent with 8th Amendment prohibitions against cruel and unusual punishment. But others say the Hippocratic oath to preserve life rules out their involvement.

Condemned inmates' lawyers have argued that lethal injection has "medicalized" the death penalty, since such executions utilize drugs, intravenous lines, and sometimes electrocardiogram machines and brain monitorsNorth Carolina, which has 185 people on death row and has executed 43 individuals in the last three decades, has a statute requiring that a physician be present during an execution.

The current controversy was stirred when U.S. District Judge Malcolm J. Howard blocked an April 2006 execution at the prison in Raleigh after defense lawyers raised concerns that condemned inmates were experiencing an excessive level of pain during lethal injections.North Carolina, like 36 other states, uses a three-drug protocol. The first drug is designed to anesthetize; the second drug paralyzes; and the third causes cardiac arrest. Lawyers here, as in other states, have asserted that, on some occasions, the inmate has not been sufficiently anesthetized by the first drug and experiences a brutal death but is unable to scream because the inmate is paralyzed.

Then, Howard reversed course, ruling that the execution could go forward, after prison officials said they would use a bispectral index monitor, which the state said could track the inmate's level of consciousness.The ruling required that medical personnel be present to ensure that the condemned inmate was unconscious before the second and third drugs were administered.

Charles van der Horst, professor of medicine at the University of North Carolina Medical School, and Arthur Finn, a retired doctor, were concerned that doctors would be asked to play a larger role in lethal injections. Last year, they and other physicians urged the medical board to take a firm stand against any doctor participation in executions, saying it violated the Hippocratic oath.

In mid-January, the board adopted that position. The board acknowledged the state law about a doctor being "present," but emphasized that any physician who engaged in such activities as prescribing or administering medication, monitoring vital signs or rendering technical advice would be in violation of the American Medical Assn.'s code of ethics.

In March, the state corrections department sued the board, asserting that it had prevented the state from finding physicians to be present at executions. Last month, state court JudgeDonald W. Stephens ruled that the board had overstepped its bounds. He said the state law requiring a doctor to "attend and provide professional medical assessment" during executions overrode the board's position.

The judge said executions should not be categorized as a "medical procedure or medical event" even though doctors were called on for medical tasks, including "ensuring that the condemned inmate is not subjected to unnecessary and excessive pain," and determining whether the inmate was dead.

As soon as Stephens' decision became public, Van der Horst urged the board to appeal, saying he was particularly troubled by the judge's conclusion that executions cannot be categorized as a "medical procedure or medical event.""While I have the utmost respect for Judge Stephens' legal abilities, he is not a physician and consequently not the proper person to determine what a medical procedure is," Van der Horst wrote in a Sept. 26 letter to the board. Two experts on medical ethics said Friday that they thought that lethal injection was clearly a "medical procedure" and that they hoped the appeal would clarify the issue.

The judge's decision "is patently wrong on its face," said Arthur Caplan, chairman of the medical ethics department at the University of Pennsylvania Medical School.The reason that prison officials want doctors present at executions is "for their medical expertise," Caplan said.Dr. Ross McKinney Jr., director of the Trent Center for Bioethics, Humanities and History of Medicine at Duke University, said that the intravenous administration of drugs clearly has the trappings of a medical procedure.

"It is hard for me to imagine someone saying that a doctor being there and contributing to someone's death is not a medical procedure that violates the Hippocratic oath," he said."On the other hand," he said, "I can understand a physician saying the death penalty was justified for some people, thinking lethal injection is more humane than other forms of execution and therefore be willing to participate. . . . To some degree it becomes a political decision, and it gets wrapped up in the entire debate over the death penalty."

henry.weinstein@latimes.com