North Carolina considers limits on physicians' role in executions

The state medical board ponders a policy that would allow the disciplining of doctors who aid in capital punishment -- but would let them be present.

By Kevin B. O’Reilly — Posted Aug. 28, 2006

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The North Carolina Medical Board moved a step closer to punishing physicians who actively participate in executions, apparently the first board in the nation to do so.

The board's proposed position statement says it's OK for physicians to be present at an execution as North Carolina law requires, but that "any verbal or physical activity ... that facilitates the execution may be subject to disciplinary action." The proposed statement must be published in the Forum, the board's quarterly publication, for comments before a final approval vote. The next Forum is due out this fall, a North Carolina Medical Board spokeswoman said. The board has discretion over how long to wait before taking another vote.

Officials at the Federation of State Medical Boards said they were not aware of any other state medical board having addressed physician participation in executions in a position statement, and neither were any of the lawyers, doctors, medical society or medical board officials contacted for this story. The FSMB has no policy on the matter, and it has not been raised at any of the group's meetings.

The issue first came before the North Carolina board's policy committee in May after someone filed an anonymous complaint about a physician participating in an execution. The complaint centered on a report that during the April execution of Willie Brown Jr. a doctor and a nurse who routinely observe North Carolina executions used a brain-wave monitor to ensure that Brown was unconscious before officials administered paralytic and heart-stopping drugs.

The North Carolina board cited the AMA Code of Medical Ethics as supporting its proposed position, though the Association goes further and defines a doctor attending or observing an execution in a medical capacity as a form of participation. Arthur McCulloch, MD, a Charlotte anesthesiologist who chairs the NCMB's policy committee, said the board wrestled to reconcile the AMA's ethical policy with state law.

"Could we come up with a position statement that's contradictory to state law? I think there's nothing that keeps us from doing that, but I'm sure it would result in a significant legal struggle," Dr. McCulloch said.

The AMA welcomed the North Carolina Medical Board's efforts.

"We are pleased with the recent actions by the North Carolina Medical Board in doing everything they could to follow the AMA's ethical guidelines as they crafted their position on physician participation in capital punishment," AMA President William G. Plested III, MD, said in a statement. "Both the AMA and the North Carolina Medical Board believe that physician participation in executions is unethical."

A North Carolina Medical Society spokesman said the group does not comment on medical board rulings or court cases. American Society of Anesthesiologists President Orin F. Guidry, MD, who in a June letter advised members to "steer clear" of any involvement in executions, said his group had no position on whether medical boards should punish physicians who aid in executions.

"That's a medical board decision," Dr. Guidry said.

Renewed focus

Physician involvement in executions is not new. Seventeen states have execution protocols requiring at least a physician's presence, according to a 2002 Ohio State Law Journal study. Three other state protocols mention inviting a physician to be present. A number of states have provisions indemnifying participating physicians and making secret their involvement.

But the issue has received renewed attention this year after a series of death penalty cases in which defense lawyers have argued that the prevailing lethal injection method constitutes "cruel and unusual punishment." They say a 2005 Lancet study and a number of reportedly botched executions raise questions about whether prisoners remain unconscious after being anesthetized with the barbiturate sodium thiopental while pancuronium bromide and potassium chloride are administered. The three-drug regimen is virtually the same in the 37 states that use lethal injection.

Such arguments have successfully convinced federal judges to delay executions in California and Missouri and to order that prison officials involve anesthesiologists to ensure humane protocols. Prison officials in both states reported that they could not find any anesthesiologists willing to participate.

While the North Carolina Medical Board's position statement might be the first of its kind, a medical board has previously been faced with a similar complaint. In September 2004, New York psychiatrist and death penalty opponent Arthur Zitrin, MD, brought a medical board complaint against a Georgia physician who helped the state execute prisoners. Dr. Zitrin said he had no involvement with the North Carolina complaint.

The Georgia Composite State Board of Medical Examiners sided with the board. Dr. Zitrin, who had initially appealed the medical board ruling, is considering whether to take the matter to the Court of Appeals of Georgia.

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Rulings on doctors' presence

California: In February, U.S. District Judge Jeremy Fogel ordered that Michael Morales' execution could only go forward if a qualified anesthesiologist were on hand. Two anesthesiologists volunteered for the job but backed out at the last moment. An evidentiary hearing on execution protocols in the Morales case is set for Sept. 19. The California Medical Assn. sponsored a bill to bar the state from involving physicians in executions in any way. The measure is in the Assembly Appropriations Committee.

Georgia: A law that protects physicians and other medical professionals from having their licenses revoked solely for participating in a state execution took effect July 1. The Medical Assn. of Georgia has policy prohibiting physician participation in executions but leaves it to the medical board to decide whether participation warrants discipline. The association did not take a position on the bill.

Missouri: In June, U.S. District Judge Fernando J. Gaitan Jr. found the state's execution protocol unconstitutional and ordered that a board-certified anesthesiologist mix the drugs used in Michael Anthony Taylor's execution and supervise their administration. The Missouri State Medical Assn. and the Missouri Society of Anesthesiologists advised doctors not to participate. State prison officials contacted 400 anesthesiologists but reported that they couldn't find anyone to help comply with the order. Last month, Gaitan ordered state prison officials to submit a set of doctor-free protocols.

Oklahoma: A bill that protects physicians and other medical professionals from discipline solely for participating in state executions is scheduled to go into effect Nov. 1. The Oklahoma State Medical Assn. did not take a position on the measure.

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