Fordham Law

Doctors who aid in executions unlikely to face sanctions

Deborah Denno in American Medical News, February 22, 2010

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Doctors who aid in executions unlikely to face sanctions
Capital punishment opponents want medical boards to punish these physicians, but a new study finds that boards do not have the legal power to intervene.

By Kevin B. O'Reilly | amednews staff.

No U.S. medical board has disciplined a doctor for taking part in an execution, and that is unlikely to change, according to a new legal study.

The study, published in January in the Federation of State Medical Boards' Journal of Medical Licensure and Discipline, is believed to be the first to comprehensively review all state laws and regulations on doctors, medical boards and executions. The study found that only seven death-penalty states incorporate the American Medical Association's ethics code, which, among other things, bars physician participation in executions.

Nearly all capital punishment states specifically call for doctors to be involved in some way, the study said.

"There is this perception that many people, including judges, have that because of the AMA ethical code, doctors can't participate and won't participate in executions when the reality -- and we've learned this through the legal cases that have been brought -- is that doctors do participate and are willing to participate," said Ty Alper, who authored the study and is associate director of the University of California, Berkeley School of Law's Death Penalty Clinic. "The AMA guidelines are just that -- guidelines -- and not enforceable in most circumstances."

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Laws in Illinois and Kentucky specifically bar doctors from the execution chamber.
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The AMA ethics policy on physician participation in executions, first issued in 1980 and last revised in 2000, states, "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution." It is OK for physicians to certify a condemned inmate's death after it has been determined by someone else, and doctors may attend executions in a nonphysician role. But the policy says nearly any other death-chamber activity would violate the obligation to do no harm to patients.

The AMA confirmed that it has revoked one physician's membership "for participation in execution by lethal injection," according to a Dec. 19, 2007, article in the Journal of the American Medical Association.

Many other physician and health professional organizations have similar policies, but Alper said the AMA's position statement has been the most influential in courtrooms. Only two death-penalty states, Illinois and Kentucky, specifically bar doctors from the execution chamber.

The issue has come to the fore as attorneys representing death-row inmates have argued in court that the three-drug lethal-injection protocol used in all 35 death-penalty states except Ohio could, if botched, constitute "cruel and unusual punishment."

Prisoners might remain conscious after being insufficiently anesthetized with the barbiturate sodium thiopental while the paralytic agent pancuronium bromide and potassium chloride were administered, causing excruciating pain that would be invisible to the naked eye. Doctors should monitor brain-wave activity and help place intravenous lines to avoid botched executions, attorneys representing death-row inmates have said.

Push for board involvement

Meanwhile, death penalty opponents led by Sister Helen Prejean, author of Dead Man Walking, last year launched the Moratorium Campaign's Professional Ethics Initiative, petitioning medical boards to discipline physicians who participate in executions. Neither Prejean's office nor the Moratorium Campaign responded to American Medical News interview requests by this article's deadline.

Three cases involving medical boards previously have rebuked crackdown efforts on doctors, according to the study.

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34 death-penalty states use the 3-drug lethal-injection protocol.
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In 1996, a group of California doctors lost a bid to have a court force the state medical board to discipline doctors who participated in executions. A 2005 lawsuit asking Georgia's medical board to discipline a physician who acknowledged taking part in executions was dismissed for lack of standing. And a North Carolina Medical Board policy threatening discipline for physicians who took an active role in executions was overturned by the state's Supreme Court last year.

In the North Carolina case, the AMA filed a brief siding with the medical board. When the state's high court issued its decision, the Association expressed disappointment with the ruling.

Should the matter hit the courts again, a similar outcome is likely, Alper said.

"It can't be that the state medical board has some power to discipline doctors when they have the power to be [in the death chamber] under state law," Alper said. "It doesn't make sense that the [legislature] created the state medical board and that would trump the state's death penalty law."

Deborah W. Denno, a law professor at Fordham University in New York who has written extensively on doctors and the death penalty, agreed with Alper's findings. She said state medical boards lack a persuasive case to show that they should have the power to bar doctors from the death chamber, contradicting state law.

"They're not going to have a very strong argument for doing that, and that's been proven to be the case," Denno said.

Arthur Zitrin, MD, opposes the death penalty and was the lead plaintiff in the Georgia lawsuit against the state board, then called the Georgia Composite State Board of Medical Examiners. He acknowledged that his side faces an uphill battle but said that pushing medical boards to discipline physicians who participate in executions could draw attention to how capital punishment is carried out.

"We gave it our best shot in Georgia ... but I was never very optimistic about our chances," said Dr. Zitrin, professor emeritus of psychiatry at the New York University School of Medicine. "I'm not hopeful about it, but I'd certainly think that additional efforts along this line can influence public opinion and the opinion of legislators."

No state medical boards are considering any policies aimed at punishing physicians who participate in executions, according to a spokesman for the Federation of State Medical Boards. The federation does not have policy on whether medical boards should discipline physicians involved in executions.

In February, the American Board of Anesthesiology incorporated the AMA's policy on capital punishment into its own policy. ABA diplomates who aid executions could lose their board certification.

AMA Board of Trustees Chair Rebecca J. Patchin, MD, said she hopes other specialty boards and medical licensing boards "will follow in the ABA's footsteps."