Physicians resist push for execution involvement
■ Despite organized medicine's efforts to keep doctors away from the death chamber, judicial tussles draw them into the process.
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Organized medicine repeatedly has declared it unethical for doctors to participate in capital punishment. Still, some federal judges, politicians and prison officials largely have disregarded these ethical statements, saying doctor participation is necessary for lethal injection to withstand constitutional scrutiny.
The death penalty is on hold in 13 of the 38 states where it is allowed. In 11 of those states, the stays are related to questions over whether lethal injection protocols could sometimes leave the condemned conscious as paralytic and heart-stopping drugs are given.
In California, Missouri and North Carolina, federal judges have ordered prison officials to involve physicians to ensure the prisoner remains unconscious for the entire process.
While a small contingent of doctors says physician participation in executions can be ethical and humane, prison officials in those three states have said they cannot find doctors willing to aid. Most physicians are trying to ensure their profession steers clear of the execution chamber.
American Medical Association policy says physicians should not be present at executions in a professional capacity, take part in the execution process or offer "technical advice regarding execution." Physicians may certify death only after another individual has found the prisoner is dead.
Yet 15 states still require physician presence during executions; 17 states allow doctors to assist in the procedures. Only Illinois and Kentucky bar any kind of physician participation. A California Medical Assn.-led attempt to pass a similar law failed last year, but there have been other successes.
In February, South Dakota enacted a law stating the person administering the lethal injection "need not be a physician" or health worker. Physicians there also are no longer asked to pronounce death. "We wanted to take the physician out of the process," said Dave Gerdes, general counsel of the South Dakota State Medical Assn., which pushed for the changes.
Although the AMA and state medical and specialty societies agree that physicians should not participate in executions, medical boards have been reluctant to make violation of this ethical standard grounds for punishing doctors. Organized medicine has not pushed for such policies, preferring to let their strongly worded positions speak for themselves.
"The AMA doesn't have any enforcement capabilities," said AMA Board of Trustees Chair-elect Edward L. Langston, MD. "Medical boards have the right and the responsibility to determine for themselves the acts that will have consequences."
The attempt at compromise came in vain as North Carolina Gov. Mike Easley, a Democrat, approved a new execution protocol aimed at addressing a federal judge's concerns. It says a doctor shall be present to "monitor the essential body functions of the condemned inmate and shall notify the warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering." It also calls on the doctor to certify death.
When the North Carolina Dept. of Corrections could not find doctors willing to risk their licenses to aid in executions, prison officials sued the medical board in state court. The corrections department argued that state law does not say judicial executions are medical procedures "subject to regulation and oversight" by the medical board. The board would not comment on the lawsuit, and the North Carolina Medical Society said it would not comment on the lawsuit or several pending bills regarding physician involvement in executions until the court resolves the matter.
Meanwhile, physician activists have taken another tack in the effort to keep doctors out of executions. A Georgia appeals court heard oral arguments last month in Arthur Zitrin et al v. Georgia Composite State Board of Medical Examiners, in which a group of physicians wants to force the board to punish doctors who aid in executions. A new Georgia law immunizes doctors from license suspension or revocation. It does not specifically preclude lesser punishments, said Gerry Weber, the plaintiffs' attorney. He said a legal victory could encourage litigation in states with similar statutes governing medical boards. The Medical Assn. of Georgia took no position on the immunity bill.
One of the physician plaintiffs in the Zitrin case is 34-year-old Atlanta internist Kelly Thrasher, MD. He got involved, he said, because he believes doctors who participate in executions sully the medical profession.
"Physicians that are attending and sometimes assisting in lethal injections are using their practice of medicine to assist in the putting to death of someone as a punishment," said Dr. Thrasher, a death penalty opponent.
A Georgia doctor who participated in executions, Carlo Musso, MD, told the New England Journal of Medicine in March 2006 he viewed his role as palliative: A death-penalty patient "is no different from a patient dying of cancer -- except his cancer is a court order."
It's no surprise that physicians have been drawn into the fray over capital punishment, said Deborah Denno, a law professor at New York's Fordham University and an expert on execution protocols: "The medical establishment and the legal establishment have come to butt heads in sort of a showdown. It's the logical outcome of using a medicalized method such as lethal injection in executions."