Controversial California ruling focuses on physician role in execution

Organized medicine groups say physician participation is unethical, but only two states bar the practice entirely.

By Kevin B. O’Reilly — Posted March 13, 2006

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A federal judge's order last month allowing California prison officials to proceed with a scheduled lethal injection only if an anesthesiologist was present prompted national, state and specialty medical societies to condemn the order and issue stern reminders to doctors about their ethical obligation to not participate in executions.

Two anesthesiologists who agreed to attend the execution of convicted murderer and rapist Michael Morales said they reconsidered upon learning that U.S. District Judge Jeremy Fogel's order required them to determine that Morales was properly anesthetized and unconscious while prison officials administered paralytic and heart-stopping drugs.

"While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr. Morales, what is being asked of us now is ethically unacceptable," the unidentified anesthesiologists wrote in a statement read by a San Quentin State Prison spokesman.

It is unusual, and perhaps a first, for a judge to order that a physician participate in an execution.

Morales' lawyers convinced Fogel that the lethal injection method might be "cruel and unusual punishment" because a 2005 Lancet study and a number of other executions raised questions about whether prisoners remained unconscious after being anesthetized with the barbiturate sodium thiopental while the paralytic agent pancuronium bromide and potassium chloride were administered. The three-drug regimen is virtually the same in the 37 states that use lethal injection in executions.

Left without a physician's skill, prison officials decided to let Morales' death warrant expire rather than attempt the overdose of barbiturates Fogel had outlined as an alternative to lethal injection. Fogel has ordered an evidentiary hearing for May to determine the humaneness of the state's execution method.

The California Medical Assn., the AMA and the American Society of Anesthesiologists issued statements warning that physician participation is unethical because it conflicts with the physician's task of preserving life and could undermine the doctor-patient relationship. Many other groups, including the American College of Physicians and the National Commission on Correctional Health Care, have policies declaring physician participation in executions unethical.

"If you don't think about it, initially it sounds like you're doing a humane thing" to help ensure a painless execution, said Priscilla Ray, MD, a Houston psychiatrist who chairs the AMA's Council on Ethical and Judicial Affairs. "But we're healers, not hangmen -- and patients have to know that." Dr. Ray called the anesthesiologists' last-minute decision "courageous."

ASA President Orin F. Guidry, MD, was similarly resolute on the ethical question Fogel's order posed. "We expect patients to trust us with their lives," Dr. Guidry said. "Any blurring of that line that might suggest we wouldn't always act in their best interest would be unethical."

Peter Warren, a CMA spokesman, said the Morales controversy and his group's strong stance garnered more delighted responses from physicians than he has seen in his five years with the organization. "Doctors just get it. They understand that doctors are about treating patients, taking care of the sick, easing pain and suffering, not killing people," he said.

Extent of doctor participation unclear

While organized medicine may be of one mind about separating physicians and executions, state legislatures and prison wardens often take a different view. Only two states, Illinois and Kentucky, bar any kind of physician participation in executions.

In 2001, California enacted a law to nullify the requirement that wardens invite two physicians to attend. Typically, the doctors were employed by the prison. Now the CMA has secured bipartisan sponsorship for a bill to bar any physician participation.

According to a 2002 study of state statutes and execution protocols in the Ohio State Law Journal, four states only require physicians to be present at executions. Seven other states require more active participation, such as determining if the prisoner is dead, or ensuring that prison staff know how to properly insert an intravenous line. But that only accounts for publicly available data, said Deborah Denno, the study's author and law professor at New York's Fordham University. "We could have had substantially more physician and nurse involvement" in executions.

CEJA's ethical opinion on capital punishment, first issued in 1980 and last revised in 1998, defines physician participation to include attending or observing an execution as a doctor, prescribing any of the drugs used in an execution, monitoring vital signs on-site or remotely, selecting injection sites or starting IV lines, inspecting or testing execution devices, or rendering technical advice. Merely certifying or pronouncing death after death has been determined by a prison official or a coroner is not unethical, according to the CEJA opinion, which also says a physician's opinion about the death penalty is a "personal moral decision."

While medical societies are hopeful the Morales controversy will spur more laws to separate physicians from executions, law professor Denno said Fogel's decision may set the stage for more physician involvement.

"Courts aren't just going to say lethal injection is unconstitutional," she said. "They will continue tinkering with it, and one way of tinkering is to increase medical involvement. Physicians have a history of resisting this, and it's getting to a point where the medical community's going to have to take a stand."

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Judge's orders

U.S. District Judge Jeremy Fogel denied the request of convicted murderer and rapist Michael Morales for a stay of the execution. But Fogel ruled that the California Dept. of Corrections and Rehabilitation and the San Quentin State Prison could proceed with the execution only if they elected to administer a lethal dose of barbiturates or if they agreed 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 [Morales] in fact is unconscious before either pancuronium bromide or potassium chloride is injected. Because [Morales] has raised a substantial question as to whether a person rendered unconscious by sodium thiopental might regain consciousness during the administration of pancuronium bromide or potassium chloride, the presence of such person(s) shall be continuous until [Morales] is pronounced dead. ...
  • "A 'qualified individual' shall be a person with formal training and experience in the field of general anesthesia."

Source: U.S. District Court of Northern California order denying conditionally Morales' motion for preliminary injunction, Morales v. Hickman

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