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Medical Board Wants Death Penalty Lawsuit Dropped

Posted August 29, 2007

— The death penalty debate was back in court Wednesday, with the North Carolina Medical Board asking a judge to dismiss a lawsuit filed earlier this year by the North Carolina Department of Correction.

The March lawsuit contends that the Department of Correction cannot find doctors to monitor inmates at executions because of the medical board's recent policy change that a "physician who engages in any verbal or physical activity ... that facilitates the execution may be subject to disciplinary action."

State law requires that a licensed physician be present at all executions to ensure that the condemned inmate does not suffer.

Thomas Pittman, an attorney representing the department, said that the prison system's doctors are not willing to be present because of the medical board policy, which, he argued, violates the state's general statutes and makes it impossible for the prison system to carry out the law.

"They've clearly indicated their intention to discipline doctors," Pittman said. "The board looks unfavorably at a physician who is involved in an execution doing anything more than just being a potted plant."

But the medical board's attorney, Todd Brosius, said the lawsuit was premature.

"The board talks about the potential for discipline. It doesn't say the doctor will be disciplined," he said. "The board isn't attempting to discipline anyone for what's required under the (state) statute."

Superior Court Judge Donald Stephens halted several planned executions in January, ruling that the board's policy conflicted with state law.

He ordered the Council of State, which comprises the governor, lieutenant governor and seven other statewide elected officials, to change the protocol used in executions so it wouldn’t conflict with the policy.

In February, the council adopted revised execution procedures that call for a doctor to monitor the inmate's body functions and notify the warden if it appears the prisoner is suffering.

The question is whether that would violate the board's code of ethics.

"Whether it's a medical procedure or not, the board is allowed to discipline doctors for the violation of the ethics of the profession," Brosius said.

About 42 full-time doctors and psychiatrists work for the Department of Correction, four at Central Prison where executions are carried out, and none of them want to be a part of an execution under the protocol, Pittman said.

The state is asking in the lawsuit that a judge rule an execution is not a medical procedure, which would mean the medical board would not have oversight over physicians taking part.

It is also is seeking a permanent injunction prohibiting the board from disciplining any physician who participates in an execution.

"The DOC can't move forward," Pittman said. "It can't perform its statutory duties."

Pittman called the issue a "de facto moratorium" based on threats and said "the doctors are, understandably, terrified."

"I do not believe they are there to render medical care," Pittman said.

The Department of Correction said an execution is a non-medical procedure and that a doctor only intervenes if something goes wrong. At that point, it becomes a medical procedure, and the execution is stopped and rescheduled for a later date.

Brosius told Stephens that if a doctor steps in when the procedure goes wrong, it is not against the medical board's policy.

"I don't think that would be considered facilitating an execution. That would be considered halting an execution," he said. "I'm not sure the medical board is going to discipline someone for saving someone's life."

But physician participation in the execution process is unethical, Brosius said.

"It's against the ethics of the profession, and there's a good reason for those ethics," he said

Earlier this month, Senior Administrative Law Judge Fred Morrison Jr. said in a ruling in a separate lawsuit that the medical board overstepped its authority in threatening to discipline physicians.

He also ruled that the Council of State must reconsider the new protocol because it failed to hear arguments from those representing death row inmates before approving it.

Stephens could rule on the matter next week. He has several options, attorneys said. He could dismiss the lawsuit, could allow it to move forward and set a hearing date, or he could decide the legal questions and rule on the overall issue.

71 Comments

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  • Ryu Aug 31, 11:26 a.m.

    I merely made an observation to put next to the "guarantee" you stated. It is no more proof than your assertion. I am well aware that correlation does not equal causation.

    Incidentally, where do you get your $150,000/year fact? Or that criminals really fear committing murder in Texas?

  • pleshy Aug 31, 9:29 a.m.

    cause and effect is what is generally missing from statistics, because causue and effect is what you are trying to prove with statistics. A probability, a correlation between some act and some some outcome, and the number of times X happens vs Y. Stitistics isn't proof, only evidence, and as we all know, you can make evidence say anything if you use it the right way.

  • ohmygosh Aug 31, 7:24 a.m.

    RYU,

    What you offer proves nothing. Prove to me that the death penalty has not prevented murders. The statistical arguement you offer reminds me of the GO-GO 70's days of the stock market.
    Stock market prices correlated very well with the height of the mini-skit.

    What is missing from your "statistics" is any cause and effect link.

    Who likes paying $150 grand/year to keep convicted murders locked up for life. It just isn't worth it.

  • Ryu Aug 31, 7:15 a.m.

    "I have gained this from philosophy: that I do without being commanded what others do only from fear of the law." --Aristotle

    If murders are committed by murderers released from prison the solution is ensuring that convicted murderers are never released from prison.

    Over the period of 1990-2005, the the murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty.

  • pleshy Aug 30, 9:59 p.m.

    The time it takes to execute a criminal isn't for the protection of the criminal, but to protect those of us who aren't. Its called due process and one day even you might be glad we have it. The Duke Lacrosse players sure are.

  • ohmygosh Aug 30, 6:29 p.m.

    Ryu,

    Do you really believe that nonsense about the death penalty being the worst of premeditated murders? Have you not read the newspaper or listened to TV or radio in the past 50 years?

    I guarantee you that if you quickly execute each convicted murderer the murder rate will drop. If for no other reason than that murderer won't commit another. Jail doesn't work because these guys get out on parol to kill again. Right now it isn't a big deterent it could be because of the time between conviction and execution. The only people really being punished are the taxpayers.

    Anyhow how do you know that the death penalty hasn't reduced murders? Do you really know the number of murders that did not happen because of it? I'd like to point out that criminals really fear comitting murder in Texas.

  • Ryu Aug 30, 12:52 p.m.

    Consider:

    Capital punishment is the most premeditated of murders, to which no criminal's deed, however calculated, can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.
    -- Albert Camus

    If you believe that the death penalty evens out the playing field, or that it acts as a deterrent, I say to you that you have no sense of irony or subtly, and perhaps many that live deserve death, but some that die deserve life. Can you give it to them? Do not be too eager to deal out death in judgment. Even the wise cannot see all ends.

  • pleshy Aug 30, 11:39 a.m.

    Thanks, pomo. Maybe I should report your comments under the "idle chatter" portion of the Terms of Service. It certainly seems your comments are idle, personal, and intended to antagonize. Now, if you have anything useful to add to the conversation, by all means, participate. Otherwise, thanks for all of your very useful advice on how to make the world a better place through proper grammar on message board postings.

  • pomodoroz Aug 30, 9:54 a.m.

    "This isn't about protect the rights of criminals, but about protect the rights of the innocent from the government."

    Close, but still not standard English.

  • patriotsrevenge Aug 30, 9:39 a.m.

    moi????

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