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February 15, 2013

Ohio execution process under review as drug procurement issues create new looming problems

Drc_logo_smallI have been strongly disinclined to blog at all about any aspects of my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some very interesting news presented at yesterday's public meeting of the Task Force which I thought important to cover in this space.  Part of the story is revealed via this AP article headlined "Ohio wants doctors at executions":

Ohio's prison agency says it wants doctors or other medical professionals to assist with executions, saying it will help promote humane procedures.   Prisons attorney Greg Trout also says state law should be changed to protect any doctor who helps with an execution from sanctions by the state medical board.  Trout said that assistance from a doctor or nurse is unlikely without such protection.

Trout also told a state Supreme Court committee reviewing Ohio's death penalty law that protection should be offered pharmacies that mix supplies of execution drugs.

Trout said in remarks Thursday that without such protection Ohio might not be able to obtain drugs to carry out future executions. The state's current supply of its execution drug runs out in September.

The Ohio DP Task Force has been spending its time and energies considering only the law and practices for the imposition and review of death sentences and had not, before yesterday, given any attention to the actual execution process.  I thought this was a sensible decision given (1) the extensive (and, I believe, still on-going) federal litigation over Ohio's execution protocols, and (2) my belief that Ohio was among the few states without major problems procuring the drugs needed to carry out executions.

But the comments by Greg Trout at the public Ohio DP Task Force meeting yesterday made clear that, as of this writing, Ohio is only going to be able to use its current drug supply to carry out, at most, the four executions scheduled before the end of September 2013 (details here); some other execution plans are going to be needed for the state to be able to carry out the nine subsequent scheduled executions.

Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated. In other words, stay tuned while dusting off your post-Baze litigation files.

Some related posts concerning Ohio's most recent lethal injection litigation: 

February 15, 2013 at 10:56 AM | Permalink

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Comments

Prof. Berman,
Insomuch as you are labouring for the speedy execution--of sentences of execution--I bid you Godspeed.

Posted by: Adamakis | Feb 15, 2013 11:06:07 AM

Interesting suggestions by one "Bill Otis" on that earlier thread.

The doctor issue is a struggle over ethics that go to the nature of things, beyond what the state itself could help.

Posted by: Joe | Feb 15, 2013 1:37:48 PM

"Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated."

Of course, if there are NOT changes, that too will be "heavily litigated."

The reason for this is obvious. Those opposed to the DP, having failed to persuade either the electorate or the courts to end it, wage a litigation blizzard as guerilla warfare. As the warfare goes on and on, they then proclaim, with an attitude that re-defines cynicism, "Oh, gosh, look, the death penalty has become dysfuntional!!!"

Solution to the problem: Use paramedics or PA's or nurses if you can't use doctors. Good grief, we all get flu shots and have blood drawn and all manner of similar intravenous stuff without doctors. Indeed, the way medicine is practiced now, it's exceedingly rare for a doctor to adminster an IV to ANYONE.

Cut out the manufactured procedural nonsense and get on with it. There is no question of guilt and the jury has spoken.

Posted by: Bill Otis | Feb 15, 2013 2:06:25 PM

| "Trout said that assistance from a doctor or nurse is unlikely without such protection." |

Anti-DP gits are using doctoring to dishonestly try to demolish the death penalty? Good grief.

Maybe it's due to the fact that no state without the death penalty
has stopped it by a vote of her citizenry! ! !

Posted by: Adamakis | Feb 15, 2013 3:58:39 PM

Not sure if you can use nurses.

http://www.nursingworld.org/MainMenuCategories/Policy-Advocacy/Positions-and-Resolutions/ANAPositionStatements/Position-Statements-Alphabetically/prtetcptl14447.pdf

Baze v. Rees noted the law there "uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters"

so the concern isn't that no one is there who can do it. It is that someone with more skill (doctors, perhaps nurses) can improve things but for those who think things are okay, that sort of thing would be deemed unnecessary. As to how things are applied now, a doctor still would oversee the IV use. I can say this, fwiw, per personal experience at a large urban ER.

The reason these appeals go on for so long is that society and the courts are so wary about the d.p. that they leave open any number of appeal mechanisms. When this concern is gone to the degree some wish and people vote in people who have the desire to press the point (including as we saw recently, judges, when judges are up for election), things will be quicker.

Posted by: Joe | Feb 15, 2013 7:21:51 PM

A statute should affirm that participation in a death penalty procedure is not an act of medicine (it certainly is not any act of intended healing), therefore it is not within the jurisdiction of the medical licensing board, nor of any organized medical society. It should allow a doctor to enjoin any retaliatory action by such bodies. I would also like to see the doctor be able to collect all legal fees from the personal assets of any prosecutor working for the licensing board, any attorney working for a medical society that has brought any adverse action. There should be legal immunity for any negligence during the death penalty. Immunity grows an activity, liability shrinks it. The pay for participation should be high, such as $300 an hour so that participation is motivated by ordinary consideration, and not to fulfill any emotional need.

A doctor may have outside business activity. For example, he can run a farm. If he violates an environmental regulation, that is not within the jurisdiction of the medical licensing board.

From a Hippocratic Oath: "I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

I will give no deadly medicine to any one if asked, nor suggest any such counsel; and similarly I will not give a woman a pessary to cause an abortion.

But I will preserve the purity of my life and my arts."

That being said, a doctor may serve as a soldier and kill people. He may legally perform abortions, and kill innocent, viable babies in the third trimester. All should be under color of law, as should participation in the death penalty. Competence and a swift dispatch is a kindness and a benefit to the condemned. Bumbling and prolonged and repeated attempts are no favor.

Posted by: Supremacy Claus | Feb 15, 2013 11:50:38 PM

To: All Ohio Prosecutors & the AG's office and
ANDREW.WELSH-HUGGINS, Associated Press

From: Dudley Sharp

Physicians & The Execution of Murderers: No Professional Ethical/Medical Dilemma
Dudley Sharp

The Hippocratic Oath and “Do No Harm” have nothing to do with executions

Some in the medical community have attempted to create an ethical prohibition against medical professionals involvement in state executions by invoking the famous “do no harm” credo and the Hippocratic Oath.

It is a dishonest effort. Neither reference is in the context of the state execution of murderers. I find the effort to ban medical professionals participation in executions an unethical effort to fabricate professional ethical standards, based upon personal anti death penalty feelings.

The Hippocratic Oath: Classical Version

The select Hippocratic Oath quote, in its original (translated) form, is

“I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.” (1)

This is a prohibition against euthanasia and abortion and has nothing to do with the fabricated medical prohibition of participation in state sanctioned executions.

I am unaware of any other ancient texts or translations which indicate a historical context, with that quote, that prohibits physicians from participation in executions.

In 2004, Dr. Markel, a medical historian, writes, “There are two highly controversial vows in the original Hippocratic Oath that we continue to ponder and struggle with as a profession: the pledges never to participate in euthanasia and abortion.” (2)

In reality, these are, barely, controversial, now. They are, however, inconvenient. Dr. Markel’s article never mentions a context of state execution of murderers, because the oath has nothing to do with it.

Dr. Markel continues: “The Hippocratics’ reasons for refusing to participate in euthanasia may have been based on a philosophical or moral belief in preserving the sanctity of life or simply on their wish to avoid involvement in any act of assisted suicide, murder, or manslaughter.” (2)

Dr. Markel is speculating. What we do know is that it was a reference to euthanasia and abortion, specifically. There is not even speculation, by Dr. Markel, that the reference had anything to do with the state execution of murderers.

The following are ” . . .the results of a study . . . in which 157 deans of allopathic and osteopathic schools of medicine in Canada and the United States were surveyed regarding the use of the Hippocratic Oath”: (3)

1. In 1993, 98% of schools administered some form of the Oath.
2. In 1928, only 26% of schools administered some form of the Oath.
3. Only 1 school used the original Hippocratic Oath.
4. 68 schools used versions of the original Hippocratic Oath.
5. 100% of current Oaths pledge a commitment to patients.
6. Only 43% vow to be accountable for their actions.
7. 14% include a prohibition against euthanasia.
8. Only 11% invoke a diety.
9. 8% prohibit abortion.
10. Only 3% prohibit sexual contact with patients.

There is no mention of the state execution of murderers, because the Hippocratic Oath has nothing to do with it.

Although there is no prohibition on the death penalty, there is one against both euthanasia and abortion. Yet, various medical associations have fabricated an imagined ethical problem with the death penalty and have, nearly, fully accepted both abortion and euthanasia.

Now, only 3% prohibit sexual contact with patients, but the original Hippocratic Oath states:

“Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.”

100% pledge a commitment to their patients, but only 43% vow being accountable for their medical actions. Some commitment. What ethics?

With these survey results and with medical professionals bringing up the Hippocratic Oath, as if it has something to say in the death penalty debate, possibly we should, now, in the true context of euthanasia and abortion, and other issues, call it what it has become, the Hypocrisy Oath.

For example, In January 2007, The North Carolina Medical Board adopted a policy that physicians participating in executions may lose their licence. In 2009, The North Carolina Supreme Court vacated the Board’s policy, finding that they had exceeded their authority.

Did the Board attempt to prevent physicians from performing abortions or have they issued a statement condemning physicians’ participation in euthanasia? Of course not.

The Oath of Hippocrates – Modern Version

The modern version is, most often, identified as that penned by Louis Lasagna in 1964.

It states: “it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty.” (4)

This is in the context of killing innocent lives through either abortion or euthanasia.

Quite the about face.

The quote shows physicians’ medical ethical/moral acceptance of taking innocent lives, within their medical practice.

But, God forbid, that physicians participate in taking the lives of guilty murderers, outside of their medical practice.

Do No Harm

The famous physician credo “First, do no harm” (a phrase translated into Latin as “Primum nonnocere”) is often mistakenly ascribed to the (Hippocratic) oath, although it appears nowhere in that venerable pledge.” (2)

“Hippocrates came closest to issuing this directive in his treatise Epidemics, in an axiom that reads, “As to disease, make a habit of two things — to help, or at least, to do no harm.” (2)
“As to disease”. Nothing else. There is no relevance outside medicine and, most certainly, no prohibition against medical professionals participation in the state execution of murderers.

Reason & Reality

Those ethical codes pertain to the medical profession, only, and to patients, only.
Judicial execution is not part of the medical profession and executions do not make death row inmates patients. Is that news?

The editors of The Public Library of Science (PLoS) Medicine agree. They write:

“Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner’s axe has to surgery.” (”Lethal Injection Is Not Humane”, PLoS, 4/24/07).

So to, The American Society of Anesthesiologists:
“Although lethal injection mimics certain technical aspects of the practice of anesthesia, capital punishment in any form is not the practice of medicine. (”Statement on Physician Nonparticipation in Legally Authorized Executions,” 10/18/06).

Both confirm the obvious point: The state execution of murderers is not equivalent or connected to the medical treatment of patients. There is no ethical or moral connection. Hardly a mystery.

Any rational person can see that the state execution of murderers is not a medical treatment, but a criminal justice sanction. The basis for medical treatment is to improve the plight of the patient, for which the medical profession provides obvious and daily exceptions. The basis for execution is to carry out a criminal justice sentence where death is the sanction.
Doctors and nurses can be police and soldiers and can kill, when deemed appropriate, within those lines of duty and without violating the ethical codes of their medical profession, because there is no ethical connection. Similarly, medical professionals do not violate medical codes of ethics, when participating in the state execution of murderers.

Physicians are often part of double or triple blind studies where there is hope that the tested drugs may, someday, prove beneficial. The physicians and other researchers know that many patients, taking placebos or less effective drugs, will suffer more additional harm or death because they are not taking the subject drug or that the subject drug will actually harm or kill more patients than the placebo of other drugs used in the study.

Physicians knowingly harm individual patients, in direct contradiction to their “do no harm” oath.
For the greater good, those physicians sacrifice innocent, willing and brave patients. Of course, there have been medical experiments without consent and, even, today, they continue (”Critical Care Without Consent”, Washington Post, May 27, 2007; Page A01).
Physicians knowingly make exceptions to their “do no harm” requirement, every day, within their profession, where that code actually does apply. And, in many cases, they should. There are obvious ethical nuances and we should consider and pay attention to them, as is done within the medical profession.

SEE DO NO HARM: Additional Notes, at bottom.

Physicians and medical institutions should chose ethical guidelines which are truly relevant to their profession.
Many medical professionals need to stop the ridiculous ethical posturing and tell the truth – they don’t like the death penalty. In medical writings, against executions, you can easily find a strong bias, evidenced by use of the common and inaccurate anti death penalty claims, with no apparent effort at fact checking or balance. (5)

Any participation in executions by medical professionals should be a matter for their own personal conscience. In fact, 20-40% of doctors surveyed would participate in the execution process.

If this physician created mess had been about long standing medical ethics, based upon Hippocrates or “do no harm”, then there would be an effort to stop medical professionals from participating in euthanasia and abortion. In fact, the opposite has occurred. Instead, irresponsible medical professionals have turned those obvious, historical ethical standards upside down and have fabricated, out of thin air, a prohibition against the death penalty.
Why? For personal reasons, some have decided the formerly unethical medical practices of abortion and euthanasia are, now, just fine and that the non medical death penalty is prohibited by a fabricated medical ethic.

There is no foundation for an ethical prohibition against medical professionals participating in executions. Stop using personal bias to fabricate one.

It’s unethical.

===

DO NO HARM: Additional Notes:

40,000 to 100,000 innocents die, every year, in the US because of medical misadventure or improper medical treatment. (6)
It appears that some 500-1000 innocent patients die, every year, in the US, due to some type of medical misadventure, with anesthesia. (6)

There is no proof of an innocent executed in the US since 1900.

Furthermore, even with errors in lethal injection, those cases resulted in the death of the inmate – the intended outcome for the guilty murderer.
In the errors of medical professionals, we are speaking of a large number of deaths and injuries to innocent patients – the opposite of the intended outcome.

===

1) The Hippocratic Oath: Classical Version, http://www.pbs.org/wgbh/nova/doctors/oath_classical.html

2) “‘I Swear by Apollo’ – On Taking the Hippocratic Oath”, New England Journal of Medicine, May 13, 2004 article, by Howard Markel, PhD, MD, Director of the Center for the History of Medicine at the University of Michigan Medical School

3) “The Use of the Hippocratic Oath: A Review of 20th Century Practice and a Content Analysis of Oaths Administered in Medical Schools in the U.S. and Canada in 1993.” by Robert D. Orr, M.D. and Norman Pang, M.D. http://www.imagerynet.com/hippo.ama.html

4) The Hippocratic Oath – Modern Version, http://www.pbs.org/wgbh/nova/doctors/oath_modern.html

5) “An absolute: Doctors don’t kill”, op/ed, by Dr. Charles van der Horst, News and Observer, Dec 04, 2008). My response to him can be found as “Is Dr. van der Horst just ignorant or something else? Doc?” in the comments section for “Clap hands, here comes Charlie”, UNC Healthcare Blog, December 8, 2008, 4:30 pm
http://unchealthcare.wordpress.com/2008/12/08/clap-hands-here-comes-charlie/

6) “Deaths from Medical Misadventure”at
http://www.wrongdiagnosis.com/m/medical_misadventure/deaths.htm and

“Health Grades Quality Study: Patient Safety in American Hospitals, July 2004?
http://www.healthgrades.com/media/english/pdf/HG_Patient_Safety_Study_Final.pdf

Additional info

Dutch Protocol for Euthanasia

The following is a Dutch protocol for parenteral (intravenous) administration to obtain euthanasia:

Intravenous administration is the most reliable and rapid way to accomplish euthanasia and therefore can be safely recommended. A coma is first induced by intravenous administration of 20 mg/kg sodium thiopental (Nesdonal) in a small volume (10 ml physiological saline). Then a triple intravenous dose of a non-depolarizing neuromuscular muscle relaxant is given, such as 20 mg pancuronium bromide (Pavulon) or 20 mg vecuronium bromide (Norcuron). The muscle relaxant should preferably be given intravenously, in order to ensure optimal availability. Only for pancuronium bromide (Pavulon) are there substantial indications that the agent may also be given intramuscularly in a dosage of 40 mg.
http://www.wweek.com/___ALL_OLD_HTML/euthanasics.html

originally written May, 2005. Updated as merited.

Posted by: Dudley Sharp | Feb 16, 2013 8:27:39 AM

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