DOCTORS & EXECUTIONS: A complex dilemma of medicine, ethics and law

DOCTORS & EXECUTIONS: A complex dilemma of medicine, ethics and law

Deborah Denno in Gainesville Sun, January 28, 2007

Media Source: http://www.gainesville.com/apps/pbcs.dll/frontpage

	The hood is off doctors involved in Florida executions, creating a conflict for a state trying to ensure that lethal injection is medically sound. The Florida Department of Corrections has fought to conceal the identity of doctors who pronounce inmates dead at executions, saying it's against Florida law to reveal these doctors' names. In the death chamber, these physicians wear hoods and goggles, shielding their faces from execution witnesses. But now the Alachua County medical examiner has released autopsy reports from 18 executions revealing the names of three doctors � Elio Madan, Rodrigo Quintana and Victor Selyutin � who have pronounced executed inmates dead. Unlike the Department of Corrections, the medical examiner contends that state law only protects the identity of the executioner, not these doctors. The issue of doctor involvement in executions presents a "Catch-22" for Florida and other states trying to fix problems with lethal injection. While states are working to ensure the lethal injection procedure is medically sound � a statewide commission begins its work Monday in Tampa, examining problems with Florida's execution process � the American Medical Association and other medical groups are telling doctors to shun involvement in executions. Just last week in North Carolina, a judge halted two executions because of conflicts over doctors participating. AMA guidelines restrict doctors from any role in execution, even pronouncing death. Helping carry out the death penalty violates a doctor's essential mission to preserve life, said Dr. William G. Plested III, AMA president. "One of the first things we learn is 'do no harm,' and we really try to live up to that," he said. In Florida and most other states, doctors face no legal penalties for violating the policy. But doctors may face scorn from their colleagues and might lose patients' trust if their involvement in executions is known, said Dr. William Allen, director of the bioethics, law and medical professionalism program at the University of Florida College of Medicine. "Most physicians aren't eager to have that public association, even if they might be willing to do it," he said. Doctors also face the prospect of protests from death penalty opponents. In addition to the doctors involved being named in autopsy reports, an Internet blog earlier this month posted the names of Madan, Selyutin and a physician's assistant involved in executions. Sissel Egeland, a Norwegian resident who is a member of a prisoner support group called Florida Support, said she named the doctors in a post she made on a lethal injection blog in hopes that it would open these doctors to public scrutiny. "I'm not after the doctors themselves, but I want them to withdraw from this dirty work," she said. The issue has particular relevance in Florida following the botched execution of Angel Diaz on Dec. 13. Diaz was sentenced to death for the 1979 murder of a Miami topless club manager. An improperly inserted IV caused Diaz to suffer footlong chemical burns on his arms and he appeared to writhe in pain before dying. The state subsequently halted executions and created the commission to study the lethal injection procedure and recommend changes. Now the state faces the prospect of revamping the procedure at the same time that the role of medical professionals in executions faces new scrutiny. In other states, such scrutiny has led to revelations about the qualifications of those involved in executions and led the courts to halt the death penalty. "When you're allowed access to information, a lot of things surface that you don't know are there," said Linda McDermott, an attorney who represents Death Row inmates in Florida. Records ID doctors Since Florida instituted lethal injection in 2000, the state has executed 20 inmates using the method. The medical examiner has completed autopsies in 18 of those executions, with the remaining two still pending. Reports on these autopsies indicate Selyutin has pronounced inmates dead in all but three of the 18 executions. His involvement in executions has been previously known. After Florida's electric chair caused flames to shoot from two inmates' heads and a third inmate to bleed, in the 1990s, Selyutin was called to testify in a case challenging the procedure. The challenge led the state to abandon the electric chair and switch to lethal injection. These autopsy reports indicate Madan pronounced death in two executions and Quintana pronounced death in one execution. An affidavit in the case of executed prisoner Arthur Rutherford revealed physician's assistant William F. Mathews has also been present at executions, but gives no indication about his role. But Mathews' statement also said he helped develop the state's lethal injection procedures in late 1999 and 2000. Florida Department of Health records show both Selyutin and Mathews primarily practice medicine at Florida State Prison. They declined comment on their involvement in executions through corrections officials. Records show Quintana has staff privileges at Columbia Correctional Institution in Lake City. He previously had a private practice in Gainesville and recently opened a family-practice clinic in High Springs. Reached at the High Springs clinic, Quintana declined comment for this story. Madan works at Florida State Prison during the day and at an after-hours clinic in Starke at night. Reached at the Starke clinic, Madan said making a pronouncement of death doesn't mean he's involved in executions. "People pronounce death of people they know," Madan said. "That's it � no involvement." Ethics violation AMA guidelines ban doctors from pronouncing death or participating in executions in any way. The policy conflicts with Florida law, however, which says "a qualified physician shall be present and announce when death has been inflicted" in an execution. Their presence at executions is shrouded in secrecy. During an execution, once an inmate stops moving, execution witnesses see a hooded individual come out from behind a wall blocking the part of the death chamber where lethal drugs are administered. The person is clad in a blue hood and goggles. The person approaches the gurney where the inmate is strapped, shines a light in the inmate's eye and places a stethoscope over the heart. The process is then repeated by a second hooded individual. Finally, that person signals death to prison officials with a nod and the execution is officially over. The Florida Department of Corrections confirmed this individual is a doctor. But department officials denied a public records request to identify these doctors, citing a law protecting the identities of those administering lethal injection. The law prevents the release of "information which identifies an executioner, or any person prescribing, preparing, compounding, dispensing, or administering a lethal injection." But the Alachua County medical examiner's office says the law covers the executioner, not the doctors who assist in the execution process. Larry Bedore, director of investigations for the office, said the department would continue to release autopsy reports naming doctors. "The doctor is not the executioner," he said. "It's my understanding that their sole role is to pronounce death." State guards info Department of Corrections spokeswoman Gretl Plessinger said revealing the identities of doctors could lead to threats against them. "Disclosing this information could expose these individuals to retribution or personal danger," she said in a written statement. "To that end, we will neither confirm nor deny the role of any person as it relates to executions." Department Secretary James McDonough declined to comment on the issue. Fordham University law professor Deborah Denno has studied the lethal injection procedure and involvement of doctors in executions. She found states closely guard the identities of these doctors, citing security concerns she said are unfounded. She said she's never found anything but minor threats against doctors involved in executions. "You're talking about a country where most of the public is still in favor of the death penalty," she said. Allen, the UF bioethics program director, said some doctors might be willing to pronounce death at executions but worry about how patients and other doctors will react. Doctors typically "want to keep the role of healer distinct," Allen said. Role of doctors Current department procedures, adopted in August, are vague about whether doctors have roles beyond declaring death in executions. But a previous version of the execution procedure, which was outlined by the state in the case of executed inmate Terry Sims, sheds more light on the issue. A pharmacist prepares the lethal drugs and a physician stands behind the executioner while the drugs are administered, according to court records. These steps take place out of the sight of execution witnesses. In addition, court records say a physician's assistant observes the execution and certifies the inmate's death and that a nurse or medical technician can be present in the witness room. Plessinger said these procedures are still used for the most part other than the fact a doctor, not a physician's assistant, pronounces death in executions. Denno conducted a 2003 study on the death penalty. She found 13 of 39 states with lethal injection have procedures requiring doctors to pronounce death. Some states also require medical personnel to insert the IV, but she said states provide little information about whether doctors go beyond those duties. But she said court challenges to lethal injection in other states have revealed doctors are sometimes asked to participate in executions in ways not described in procedures. "It appears that physicians get involved more than we considered," she said. Other states Diaz's botched execution led the state to stop executions while a commission studies the procedure. Judging from the experience of other states, Florida may have a tough road reviving the procedure if medical involvement becomes an issue. Eight states � Arkansas, California, Florida, Kentucky, Louisiana, Maryland, Missouri and South Dakota � at least temporarily halted executions last year because of court challenges or other problems with lethal injection. Just last week, North Carolina joined that list. A judge put two executions on hold there as the state struggles with the role doctors should play in carrying out the death penalty. Like Florida, North Carolina state law requires a doctor's presence at executions. But a state medical board declared last week that any participation by a physician violated medical ethics. The state decided a nurse and medical technician � rather than a doctor � would use brain and heart monitors to determine when an inmate dies. But the judge ruled that under a 1909 law, the governor and the nine other statewide office holders must approve the change. Others states have faced similar controversies. In Missouri, a court halted executions last summer after the doctor who supervised lethal injections admitted he was dyslexic and sometimes improvised the mix of lethal drugs. The St. Louis Post-Dispatch later identified the doctor, reporting he'd been sued for malpractice more than 20 times and denied staff privileges by two hospitals. The court ordered that executions couldn't resume until the state found an anesthesiologist to oversee them, which hasn't yet happened. In California, a judge ordered anesthesiologists to take part in an execution last February. But the doctors dramatically withdrew at the last minute, citing concerns about the ethics of their involvement. The judge later stopped all executions in the state because of concerns the lack of doctor involvement could lead to a violation of the Constitution's ban on cruel and unusual punishment. Plested, the AMA president, said doctors should refuse even limited roles in executions. Even seemingly small tasks for doctors may lead to greater participation in executions, he said. "Once you put your toe in the water, so to speak, you might find you're becoming complicit," Plested said. Nathan Crabbe can be reached at 338-3176 or crabben@gvillesun.com. -------------------------------------------------------------------------------- Email: fordhamlawyer@law.fordham.edu