Fordham Law

N.C. court overturns ban on doctor participation in executions

Deborah W. Denno in American Medical News, May 18, 2009

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By Kevin B. O'Reilly, AMNews staff

The state medical board had threatened to punish physicians who aid executions, but the state Supreme Court ruled the agency overstepped its bounds.

The North Carolina Medical Board exceeded its authority under state law when it adopted policy threatening disciplinary action against physicians who take an active role in executions, the Supreme Court of North Carolina ruled in early May.

The 4-3 decision appears to end the board's policy barring doctors from participating in executions, the only one of its kind in the country.

At this article's deadline, the medical board was scheduled to meet May 20 and consider how to proceed.

Tom Mansfield, the board's legal director and co-counsel in the case, said he did not see any grounds for appeal to the federal courts. "It may well be that we are simply stuck with this decision," he said.

The board adopted its position in January 2007, prompting a lawsuit from the state's corrections department, which argued that the policy deterred physicians from participating in executions.

In 2007 the N.C. medical board banned doctors from participating in executions.

The relevant state law, adopted in 1909, says a physician should be present at the execution and "certify the fact of the execution."

In its policy, the board attempted to reconcile medical 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 the majority opinion, Associate Justice Edward Thomas Brady wrote that for the medical board "to assert that the physician is to merely occupy space in a nonprofessional capacity is simply illogical and renders unintelligible the requirement that 'the surgeon or physician of the penitentiary' be present."

New execution protocol

The case's outcome is significant because an execution protocol announced in February 2007 said lethal injections should be administered by personnel qualified to "administer the preinjections, insert the IV catheter, and perform other tasks." The protocol says "medical doctors" are among those "deemed qualified to participate in the execution procedure."

The purpose of the new protocol is to ensure that condemned inmates do not suffer unnecessarily during the lethal injection process.

Another lawsuit filed by attorneys for death-row inmates has challenged the protocol because state officials did not allow comments from the lawyers. The lawsuit is still pending. The last execution in North Carolina took place Aug. 18, 2006.

Charles M. van der Horst, MD, associate chief of the infectious diseases division at the University of North Carolina School of Medicine, had urged the board to adopt its position. He was angered by the Supreme Court decision. "If [the justices] believe in the death penalty, that's fine, but leave the doctors out of it."

The AMA, whose policy on physician participation in capital punishment served as a model for the medical board's position statement, also disagreed with the ruling. The AMA filed a brief in the case that explained its ethical opinion and sided with the medical board.

"The American Medical Association is troubled by the North Carolina Supreme Court's apparent view that it, and not the medical profession, can establish ethical precepts for physicians in North Carolina," AMA President Nancy H. Nielsen, MD, PhD, said in a statement. "The court's refusal to respect the views of the state medical licensing board, created by the North Carolina Legislature to regulate the practice of medicine, is also disturbing.

"The AMA's ethical policies prohibiting physician participation in executions are clear and remain unaffected by this ruling," Dr. Nielsen added. "Physicians are fundamentally healers, not instruments of death. The skills of the medical profession must only be used for care, compassion, and healing."

The North Carolina Medical Society has policy consistent with the AMA's ethical opinion on doctor participation in executions. The society has remained neutral on the board's policy.

There is no sign that other medical boards are considering a disciplinary policy similar to North Carolina's.

Georgia physicians filed a complaint with their state medical board, asking it to punish doctors who aid executions. The matter was litigated, and the Georgia Supreme Court ruled in January 2008 that the doctors lacked standing to file the complaint.

The North Carolina high court's decision could further discourage other medical boards from disciplining doctors who participate in executions, said Deborah W. Denno, a professor at the Fordham University School of Law in New York.

"States always follow what other states are doing, and I think a decision like this would have an impact elsewhere," Denno said. "Most of these medical boards have been very passive. ... What gets them involved is if there's bad publicity for the medical profession in some way."

The print version of this content appeared in the May 25, 2009 issue of American Medical News.

Contact: Deborah W. Denno