North Carolina medical board can't discipline doctors for execution work

The only state medical board in the country with policy declaring physician participation in executions "a departure from the ethics of the medical profession" and grounds for discipline was rebuked in state court late last month.

Wake County (N.C.) Superior Court Judge Donald W. Stephens ruled that the North Carolina Medical Board overstepped its authority in threatening to punish doctors who take an active role in the death chamber. But executions in the state will not resume due to the pending cases of five North Carolina death-row inmates on lethal injection protocols.

North Carolina corrections officials sued the medical board in March, saying the new threat of disciplinary action made it impossible to find physicians to aid in executions.

The court found that a 1909 state law requiring a physician to be present to "certify the fact of the execution" trumps the medical board's policy, adopted in January and based on the American Medical Association's ethical admonition against physician involvement in capital punishment.

In its policy, the medical board attempted to reconcile ethical standards and state law by saying physicians could be present at executions in a professional role, but that "any verbal or physical activity ... that facilitates the execution" might be grounds for discipline.

In his opinion in North Carolina Dept. of Correction v. North Carolina Medical Board, Stephens wrote that "logic and common sense suggest" that the General Assembly's intent was for a doctor to be present "to perform medical tasks attendant to an execution for which the physician is uniquely qualified," such as determining death and ensuring that the inmate does not suffer unnecessarily.

The court also said, "A judicial execution is not a medical event or medical procedure" and therefore lies outside the medical board's jurisdiction.

At press time in early October, the medical board was exploring whether to appeal. No official decision will be made before its Oct. 17-18 meeting, a spokesman said. The North Carolina Medical Society agrees with the AMA's ethical opinion on doctor participation in executions but did not comment on the court ruling and has remained neutral on the board's capital punishment policy. The AMA also did not comment.

Physicians react to ruling

The ruling deeply disappointed physician activists who have pushed medical boards to take a harder stance on doctor involvement in executions. Charles M. van der Horst, MD, associate chief of the infectious diseases division at the University of North Carolina-Chapel Hill School of Medicine, urged the medical board to take action in April 2006 and is organizing a physician letter-writing campaign exhorting the medical board to appeal the ruling. Dr. van der Horst especially objected to the court's finding that an execution using lethal injection is not a medical procedure.

"Starting IV lines, doing cut-downs, monitoring whether someone's under general anesthesia, or alive or dead -- those are medical procedures," Dr. van der Horst said. "The independence of the medical board has been thrown out here. That's what they do is regulate the practice of medicine."

Arthur Zitrin, MD, the plaintiff of record in a lawsuit seeking to force Georgia's medical board to punish doctors who aid in executions, agreed.

The court's ruling represents "an effort to supersede the medical board whose responsibility it is, by law, to establish the standards of medical practice and to also determine what the violations of the standards of ethical practice would be that would allow them to discipline doctors," said Dr. Zitrin, professor emeritus of psychiatry at New York University School of Medicine.

A Georgia appeals court heard arguments in Dr. Zitrin's case in April. A decision has yet to be announced.

Not all physicians agree that it is unethical for doctors to aid in executions. In a commentary in the September Mayo Clinic Proceedings, Harvard Medical School associate professor of anesthesia David B. Waisel, MD, argues that it is permissible for physicians to use medical skills to assure that condemned inmates do not suffer during the lethal injection process.

But Dr. Waisel also was upset with the court's ruling, saying he was "horrified at the prospect of government intervention" and that he would like the disciplinary decision "to remain wholly with the medical board."

Halsey Alan Wyatt, MD, MPH, said the ruling was "great." While opposed to the death penalty and uncomfortable with participating in it, the New Orleans hyperbaric medicine specialist said the medical board took the wrong position.

"I certainly don't think that as physicians we should be punished for doing what we can to ensure that the execution process is carried out in a humane and acceptable fashion," Dr. Wyatt said.

Justices to decide capital case

Meanwhile, the U.S. Supreme Court late last month agreed to hear Baze v. Rees, the case of two Kentucky death-row inmates whose lawyers have asked the court to set a single legal standard to judge the constitutionality of lethal injection protocols.

Last year, federal district court judges ordered prison officials in Missouri and California to involve doctors in executions. But officials in both states said they had difficulty finding doctors to participate. Subsequent rulings in those cases have said that doctors do not have to participate.

It is unlikely the high court explicitly will ban or require physician participation in executions, said Deborah Denno, author of "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty," in this month's Fordham Law Review. "I don't see the court saying doctors have to be involved. That would be basically saying that a certain profession has to partake in one of the worst punishments possible in society," she said.