February 23, 2007
More on executions methods and the role of doctors
Jeff Mead and Larysa Simms are taking over Wednesday's class to discuss "The Role of Physicians." Here is the text and readings they sent for everyone's pre-class consideration:
Before you enrolled in this death penalty class, your mind likely jumped to a single inference when you heard mention of an interface between the legal and medical professions: malpractice suits. However, after class on Wednesday, February 28, you should also gain insight into another important interface between the two professions: the death penalty (executions). In fact, the topic is enjoying the spotlight as the focal point of several current events. In preparation for our discussion on Wednesday, please read the brief articles linked below that will orient you to the issues underlying these current events associated with the medical profession's role in the death penalty. These articles will give you a taste of what we will explore further through class discussion, including the moral, philosophical, medical, political, legal and practical implications of the role of physicians in the death penalty.
Please also answer the following questions in the Comment Section of the blog before class on Wednesday:
- Why do you think this issue regarding the role of physicians in the death penalty has erupted at this particular time as opposed to any other time?
- Why has the American Medical Association (AMA) seen fit to act as the moral compass for its members? What are the implications of this AMA decree?
- What political machinations do you think are at play?
- Given our recently expanded understanding of the assorted methods of execution, what role, if any, do you think physicians should play in the death penalty?
- AMA opposes physician involvement in executions (Feb. 17, 2006)
- Council of State Approves Death Penalty Protocol (Feb. 6, 2007)
- Doctors' refusal might ring knell for death penalty (Aug. 7, 2006)
- CMA Reaffirms Stance Opposing Physician-Assisted Suicide (Feb. 15, 2007)
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Here are my quick reaction to these interesting questions:
1. I think lawyers/judges want to believe (perhaps inaccurately) that having doctors involved in executions will help ensure they are more humane.
2. I think the AMA (perhaps wisely) wants to make it easy for its members to refuse to be drawn into these issues/debate. However, I am concerned the AMA has done so in a way that makes it hard for doctors who would like to participate in these debates.
3. There are, I suspect, lots of different types of politics in play, though I think everyone believe they are being faithful to their professional roles.
4. I do not think doctors should be a required part of the execution process, but I do think doctors who wish to be involved should not have to risk losing their license for this choice.
Posted by: Doug B. | Feb 25, 2007 7:09:26 AM
I will probably address the first three questions later, but I wanted to comment on question 4 with the lawyer/doctor analogue that popped into my head as we've been talking about the role of physicians in death penalty implementation. The ideal of the doctor - in some regard or another - is to extend life, to avoid death. So asking doctors to aid the process of death is in a way the exact opposite of what they are trained, or simply desire to do. The public expects this to be so. Indeed, euthanasia is still a widely unpopular practice (if memory serves).
Similarly, I see the ideal of the lawyer as extending justice, and avoiding injustice. As a soon to be lawyer, if I were asked to participate in a process that that sought to ensure injustice - even if it were government-sanctioned injustice, and even if my participation was limited to finding the most "painless" way to exact injustice - there is no way I could do it, and I might very well be disappointed in my colleagues who chose to participate.
Maybe the analogy isn't perfect, but it provided context for me to think about the role of doctors in the death penalty protocol debate.
Posted by: Brett T. | Feb 26, 2007 10:25:57 AM
1. I think the issue regarding doctors' participation in executions is more prominent now because of lethal injection is the execution method of choice. The whole feel of an execution has become medical, so perhaps there is more emphasis on medical professionals being involved in the actual execution.
2. I think it is appropriate for the AMA to set boundaries regarding doctors' ability to kill. No matter what you believe about the death penalty, or assisted suicide, doctors exist to heal. The AMA is not requiring doctors to be opposed to the death penalty, but professional involvement is something different. It reflects directly on the profession as a whole, and for patients' trust in medical professionals.
3. I may be wrong, but my impression from class and looking at the news that our society has become more determined that executions be "painless." I think that to reassure those folks, they need to see doctors involved to make sure that happens.
4. I don't think doctors should be involved at all in the execution process. I think it is appropriate for a doctor to perform an autopsy to determine the affect of the method of execution on the deceased.
Posted by: Kristin | Feb 26, 2007 12:23:23 PM
1. I think the issue has arisen because society is trying to move toward a painless/humane method of execution. Challenges to this method have come up perhaps in part because for the first time there is an obvious segment of society that has far more experience and knowledge than the executioners in dealing with these drugs/techniques (it's arguable that allowing medical personnel to assist could have made every method of execution previously employed more humane/less painful). Also -- where are the Depts of Corrections even getting these drugs if, as one of the postings mentions, doctors are proscribed from even prescribing? And what is the point (as with North Carolina) of having a doctor in a separate room "monitoring," when she is prohibited from intervening if she observes something going wrong??
2. The AMA has taken a hands off approach because society has taken the view that doctors are only supposed to heal/save -- and this goes way beyond the forum of capital punishment... (the vast majority of docs that I've worked with are uncomfortable talking to patients/families about death even when it has become inevitable).
3. I'm sure it behooves the AMA to stay away from capital punishment altogether, because if they assist in developing a method or being present at executions -- they appear to at least tacitly approve capital punishment.
4. If we are going to continue to use lethal injection, I think it's imperative that doctors/nurses play a role. A death row inmate could be taken to a hospital for IV insertion (or better yet, central line insertion) the day prior to execution. With some training, the executioners could be trusted to inject the drugs (even the guy in Missouri). If IV access could be assured -- the doses of each of the protocol drugs ensure that death would be quick.
Posted by: Kate G. | Feb 26, 2007 11:44:56 PM
This is a response to Kate's reply to question no. 4: The individual in Missouri is actually a PHYSICIAN! A dyslexic physician, yes, but I guess he did not figure his dyslexia would play much of a role in his OR environs. However, this same physician had more than 20 malpractice claims against him (outside of the correctional institution!) and had been denied staff privileges in 2 hospitals. His was one case in which the state could not even trust a physician to administer lethal injection. This horrifying aberration might highlight the lack of state screening in selecting physicians which is another disconcerting concept to ponder.
Posted by: Larysa | Feb 27, 2007 12:04:59 AM
I have a quick response to Brett's comment. It seems that comment avoids the issue of who gets to decide whether its the exact opposite of what the professionals are trained. To use his lawyer analogy, what if the ABA declared that no lawyer was allowed to participate in the criminal trial of OJ because the trial was clearly going to be an injustice (a vast majority of Americans believed that he did it and also that he wouldn't be convicted). Obviously lawyers would be upset because they were not given the right to choose whether they would participate in the supposed injustice or not. Many wouldn't participate, but some might believe that the trial would not be an injustice and would. Many of us might be very disappointed in our colleagues who did decide to participate in seeking an injustice, but we wouldn't expect the ABA to tell those participating they aren't allowed to. Now maybe the fact that the only quick example I could come up with is still a trial where the constitution guarantees counsel in order to make our system work illustrates that the lawyer context is wholly different from the doctor one, but that conclusion would destroy the analogy altogether, including Brett's example.
Posted by: Kurt | Feb 27, 2007 9:22:45 AM
Hello, I'm second year medical student from Tulane. Larysa's brother and my classmate, Eric, invited commentary from our class on this. I recommend Atul Gawande's When Law and Ethics Collide — Why Physicians Participate in Executions (http://content.nejm.org/cgi/content/full/354/12/1221) in the New England Journal of Medicine for the perspective of one influential doctor.
A couple of other situations I might suggest testing your assertions against:
-- A doctor's role in interrogation
-- A doctor's role in end-of-life care. Do you want the same doctor titrating your grandmother's morphine who just came back from an execution? At what point might your doctor's sense of empathy in end-of-life pain management be skewed?
--Iatrogenic complications. Are doctors more likely to detect more subtle errors in their own procedures? What if the doctor places a central line, nicks the aorta, proceeds with the injections, the patient still dies quietly, but autopsy reveals massive internal bleeding as an indistinguishably possible cause of death? Bleeding out is leads to fatigue, not panic. Does the family then sue? Would a layperson be equally liable?
Posted by: Niels Olson | Feb 27, 2007 4:57:15 PM
Thank you for your input, Niels! Your comments will definitely play into our class discussion on Wednesday. As for my classmates, you are more than welcome to look at the Gawande article for which Niels kindly provided the link. I have reviewed the article as part of my preparation for class, but having other students on the same page may enhance the discussion. Thank you!
Posted by: Larysa | Feb 27, 2007 5:18:03 PM
Q1. Why do you think this issue regarding the role of physicians in the death penalty has erupted at this particular time as opposed to any other time?
While I agree with Professor Berman that lawyers/judges believe that the use of doctors during executions will make them more humane - or at least make them appear so or that we are trying to make them more humane - I think this also is a by-product of some of the politics at issue in Q3 as evidenced in particular by the shift in representation with the last election. That didn't happen overnight - it was at least two years in the making. Generally speaking, more Democrats in Congress means the potential to advance policy issues on the subject.
Q2. Why has the American Medical Association (AMA) seen fit to act as the moral compass for its members? What are the implications of this AMA decree?
It's hard to read into another's motivations, particularly as a group. It's a controversial area and I think the AMA is trying to stand up for the rights of its members to exercise their collective conscience but it may come at the expense of individual members who view things in a different light than the majority.
Q3. What political machinations do you think are at play?
It's hard to say. I don't know how much is at play with respect to the AMA, but I'm sure that many are anxious to capitalize on (or denounce as I do in Q4) the AMA's position through the political/legal process.
Q4. Given our recently expanded understanding of the assorted methods of execution, what role, if any, do you think physicians should play in the death penalty?
If they want to be involved, or are at least willing to be, doctors should be involved in whatever capacity they feel comfortable with given their code of ethics. They should in no way be compelled, but they should not be chastised by the AMA or stripped of their license if they so choose to participate, either individually or collectively. It is one thing to "do no harm"; it is not a far leap from that principle to wish to make one's experience as painless as possible. If a doctor knows that the State is going to execute X irregardless of any doctor's participation (which it should in my opinion), it seems to me that some doctor will want to participate on some level to ensure that the X's death is as painless as possible. If not, oh well - the State at least tried to incorporate a medical perspective - and the State should continue to do its best to execute X in the most humane way possible absent medical opinion. This way, it's not on the doctor to do something he is uncomfortable with but at the same time this method eliminates a potential backdoor challenge to that which I believe is clearly constitutional and appropriate for the worst offenders.
Note: That Gawande article is very interesting and a good read. So, thank you to the poster.
Posted by: Ben D | Feb 27, 2007 6:30:14 PM
1) I agree with what others have said in regards to the painless/humane arguments. I just wanted to add to that- I think that the call for increased role of physicians is in part because public support worldwide for the death penalty has gradually decreased on the theory that it is inhumane. While the majority of Americans still support the death penalty, we don't want to be seen as barbaric and so we are trying to make the process as humane as
2)They want to maintain the integrity of the profession. I had assumed that most doctors would be opposed to assisting anyway, but I found this article
which says that 19% of doctors polled said they would give the final drugs.
I was very surprised at this because I personally suspect that this is a higher percentage than what a randomly selected group of people would say given the guilt one might feel.
3) As far as the AMA goes, again, upholding the integrity of the profession and also avoiding the appearance of supporting the death penalty.
4) I do not think they should play any role.
Posted by: Katherine L | Feb 27, 2007 7:18:56 PM
1. I think the attention on “botched” executions has brought focus to the methods that are being employed to execute. As such, with things like veins not being found and insufficient amounts of injected serums, there is greater emphasis being placed on the medical side of the execution.
2. The AMA is the moral compass for a profession, and thus, the profession’s members. Just as the ABA sets guidelines for lawyers’ ethical behavior and practices, the AMA sets standards to ensure the quality of our medical personnel and to protect the consumer from sub-par medical care. Ethical oversight is needed in the medical profession as to have control over the practice of medicine in all controversial areas of the field, such as researching cloning or protecting personal medical information of a patient. The AMA has long been the organization that holds this pedestal as the moral compass, and if medical professionals have an issue with this, they have the ability to reorganize or insist on change.
3. The ABA is exercising its political arm by implementing this policy and thus effectively verbalizing their opposition to the death penalty.
4. I believe that prisoners who are sentenced to death should have the presence of medical personnel at their death. It seems to be cruel to have uncertified, non-medical people injecting prisoners with drugs. As to ensure the “quality” of a prisoner’s death, medical personnel are needed to monitor the drugs, the vital signs, etc. and medical personnel are the only profession of people capable and trained of doing this properly. Depriving a prisoner of this level of care subjects the prisoner to an added level of anxiety during their most final moment. I think that the current AMA rule is depriving prisoners of medical attention at the time when they need it most. Furthermore, the AMA is refusing to partake in an action by the state that supposedly is sanctioned by the people of that state. Thus, the prisoner’s punishment, delivered by the state in the name of the people of that state, is not being adhered to because of this organization’s stance therefore depriving the people of the state of a humane deliverance of justice.
Posted by: Caitlin C | Feb 27, 2007 7:51:05 PM
1) I think the issue regarding the role of physicians in the death penalty has intensified lately at least in part because of the problems with recent lethal injections in Florida. Judging by the survey in the last class, many people seem to think that lethal injection is preferable to other methods of execution, because it seems relatively painless and quick. The recent botched lethal injections have definitely called this assumption into question. A logical next step would be to attempt to get physicians involved in order to improve the system.
2) I think the AMA took a position in line with the do-no-harm oath that doctors pledge. The AMA is in a sense the moral compass of the medical profession and has every right to advise its members. Nevertheless, I don't think the moral opinion of the AMA should be binding on every doctor. Doctors should be able to choose whether or not they want to be involved in the process.
3) I think that by taking a stand against any doctor involvement in the death penalty process the AMA is essentially supporting the abolition of the death penalty. By insuring the process is not improved, the AMA may change the minds of people that would otherwise support the death penalty if the processes were administered by a doctor, such that it would be less painful and more humane.
4) I think physicians that choose to be involved in the process should help to develop procedures that insure the person is put under before administering any lethal drugs.
On another note, if the issue of a doctor's involvement is so contentious, states could invest in better training executioners on inserting iv needles and other medical issues. A medical course focusing on things pertinent to lethal injection is likely not too difficult. Each state could train several people in a crash nursing/doctor course, which although not perfect, could help solve this debate.
Posted by: Caitlin D | Feb 27, 2007 9:16:43 PM
1.) I submit to those who think that doctors should not be involved in the dying process that "death is not the enemy, suffering is" (author anonymous). Should you not like to take my word for this, I invite you to a tour of the medical ICU. If doctors' only imperative is to prevent death, then they shall turn a blind eye to countless cases of suffering in patients who are irrevocably dying and who need relief of suffering and pain. Such, I might add, is the plight of the death row inmate.
2.) Many physicians, like me, are not members of the AMA (but subscribe to their journal) precisely because of the hubris with which they have declared themselves the moral compass of the medical establishment, apparenlty by decree, as a substantial minority (or is it the majority?) of US physicians are not members, and nor is the establishment sanctioned by any other legitimate governing or elected body. They have taken other political positions (e.g., gun control) under the guise of "public health" and "medical ethics", which they use to thinly veil their political motivations.
3.) Were I responsible for an execution process, I can absolutely guarantee and assure that I could make the entire process as painless as a routine dental visit, almost without fail except under the most extenuating of circumstances. This is another example of Berman's frequently invoked pretenses of abolitionists - that where a workable solution to one of the "problems" they expose is proposed, it is attacked on other contrived grounds - here, the assertion that doctors should not be allowed to participate, even though it is a wonderful solution to the proposed problem, and one which promises to relieve the very suffering that they proclaim to detest.
4.) The medically popular "doctrine of double effect" could possibly (probably?) be invoked regarding the administration of an anaesthetic agent prior to an execution and thereafter the route of administration (i.e., a central venous catheter) could be used to deliver doses of lethal chemicals, thereby removing the physician from the actual "killing" (if you must) process.
5.) That a physician is incompetent in medical practice (or dyslexic if you must) has absolutely no bearing whatever on his ability to carry out a simple procedure such as required by an execution. This is a distraction. In fact, it it an epiphenomenon of the topic of this whole thread - it is the marginalization of physicians who are willing to participate in executions that FORCES the "corrections" establishment to scrape from the bottom of the barrel for the remnant dregs of the medical establishment for such services in the prison environment. Were these activities not proscribed by medical boards and the AMA, more reputable physicians (like me?) would be available for participation....
6.) The medical student pointed out a very good NEJM article that ends with a nice summary that exposes the author's (go figure, liberal) bias. However, rare potentialities and counterfactuals such as "nicking the aorta" are an untenable distraction - we are talking about optimizing not perfecting the process (as the latter is rarely possible in medicine or elsewhere).
7.) One of the reasons that the process seems "medicalized" and why physicins have been thrust into the debate of late seems to derive from the evolution from violent/traumatic means of effecting death to biochemical or poison-derived means of effecting death. Traumatologists will tell you that trauma results from energy transfer, something that lay persons would generally classify as violence which disrupts bodily functions and processes. Lethal injection (and, less elegantly, gaseous asphyxiations), instead of disrupting such processes through energy transfer into the system, interrput them by interferring with effective energy use/scientific WITHIN THE SYSTEM. It is almost inevitable that this transition, which relies upon a more profound understanding of biochemistry and physiology, will appear to be medical/scientific. Moreover, the trend towards making the process "painless" (both psychologically and physically) seems to require administration of anesthetics and anxiolytics which will, of course, appear superficially medical.
Which begs the question - does the appearance that something is medical make it so? If the sadistic serial killer uses surgical instruments, has he "medicalized" his killing? And so what if he has?
Posted by: Scott A | Feb 27, 2007 11:57:34 PM
And you will find this:
"Despite the public perception that the AMA represents all physicians, only one-third belong to the organization. Membership has declined from 300,000 in the mid-1990s to 260,000 in 2003"
Therefore, the notion of the AMA as a "moral compass" is seriously flawed and easily challenged.
Moreover, I have noted in several of the posts a visceral abhorrence to the notion that a physician, perhaps YOUR physician might be treating you after performing an unsavory act such as an execution. I would like to remind those persons that there are several other unsavory acts that, depending on one's background, disposition, and religious and psychological makeup would perhaps cause equally strong visceral reactions if you decided to dwell upon them as your physician was treating you; e.g., autopsy, organ harvestation, abortion, pelvic examinations, colonoscopies, amputations, brutal surgeries like pelvic exenteration, and the like.
For my own part, I would, rather than dwell on dramatic and viscerally exciting and repugnant aspects of a physician's behavior, I would rather have confidence that, as an overarching goal and dictum, my physician has the wherewithal to perform duties which may be distasteful to him and others for the greater good of his patients and society. Such wherewithal and moral fortitude may give him pause when he considers that his and his profession's FAILURE to act in the execution process is causing unnecessary, wanton, and gratuitious suffering.
We would not quickly excuse a physician for failure to act who, because rotting flesh disgusts him, refuses to act to to save the limb of a person in need. That this process resulted from "nature" as opposed to "human/societal intervention" [as an execution] creates an artificial distinction: humans are part of nature and their acts and those willed by society are as natural as anything else that occurs in nature. That they appear more mutable is an illusion, as a doctors refusal to be involved does as little to change the course of events as would his refusal to treat the infected leg - protest as he might, nature will run its course, as it has proven it will in the realm of capital punishment.
Should the physician feel a moral obligation to oppose capital punishment, there ARE ways that he can to that (through the political process) that DO NOT require him to turn a blind eye to the potential suffering of death row inmates who are being administered poisons by unqualified persons.
Therefore, I propose that in general physicians are hiding behind the Hippocratic oath and other anachronistic dictums as a pretext for their own repugnance and visceral abhorrence of capital punishment, and their lack of wherewithal regarding the possibility of their participation.
Posted by: Scott A | Feb 28, 2007 10:46:11 AM
I'm sorry but I can't help myself, as there appears to be an omission bias here:
Suppose that it it YOU who is going to be executed tomorrow. It will take place. It cannot be stopped. Who would you rather have perform the execution - some lackey at the dept of corrections, or a competent physician?
Posted by: Scott A | Feb 28, 2007 11:07:25 AM
1. I think that the role of physicians in executions is a burgeoning topic of discussion at this time because the public opinion of the death penalty is (slowly) shifting towards being less tolerant of executions. I think an obvious point of contention is the method of execution and the pain associated therewith. As a result, the presence of medical personnel during the exeuction seems a likely place to focus.
2. I can't say why the AMA has seen fit to act as a moral compass for its members, but I agree with some of the earlier posts that it would seem to stifle those members who may believe, feel, or wish to act differently.
3. As for political machinations, I think I would refer to my first answer.
4. I understand that many physicians feel that they should follow the hippocratic oath and "do no harm." However, I think a similar responsibility of a doctor is to ensure that medical procedures are performed properly. This might be an issue of "do lesser harm." As long as state's continue to enforce death sentences, they will be putting inmates to death. In light of that, shouldn't physicians work to make sure the inmates suffer as little as possible? Especially given that physicians are in the best position possible to ensure that the procedure is done correctly. It is not the role of the AMA to legislate and put poltical pressure on states to review their capital punishment statutes.
Posted by: Kacey | Feb 28, 2007 11:08:29 AM
Scott - You say: "I submit to those who think that doctors should not be involved in the dying process that "death is not the enemy, suffering is" (author anonymous). Should you not like to take my word for this, I invite you to a tour of the medical ICU. If doctors' only imperative is to prevent death, then they shall turn a blind eye to countless cases of suffering in patients who are irrevocably dying and who need relief of suffering and pain."
I don't have near the experience in this area that you do, but it seems to me that if your suggestion were true, euthanasia would not only be more common and more public, it would be a required duty of the physician. As it is not, and in light of the (wretched) AMA's statement, "The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine — first, do no harm. Therefore, requiring physicians to be involved in executions violates their oath to protect lives and erodes public confidence in the medical profession," I respectfully disagree that "in general physicians are hiding behind the Hippocratic oath and other anachronistic dictums as a pretext for their own repugnance and visceral abhorrence of capital punishment, and their lack of wherewithal regarding the possibility of their participation." I find it incredibly hard to believe that "in general," those physicians who would personally refuse to participate in state-sanction killing are all internally opposed to the death penalty anyway.
Also, lest I be accused of dodging your question - if I were being executed tomorrow, would I want a competent physician to perform it? Of course. But that's not really the question is it? The question is whether or not I would understand and appreciate the physician's refusal to so participate. And truthfully, I would.
Posted by: Brett T. | Feb 28, 2007 1:15:50 PM
Why, then, I ask you Brett, given what you have stated above, does not the AMA take a position in opposition to abortion?
In many cases, abortion does not conform to the AMA's precepts as you have quoted them.
I'll tell you why: because the AMA is a LIBERAL political organization, and their dictums are rationalizations twisted to conveniently support their political positions.
Posted by: Scott A | Feb 28, 2007 1:31:27 PM
To further this discussion, we need to do some digging to see if the AMA has taken a position against Oregon's (LIBERAL) euthanasia program....
I'll bet that they haven't. I'll bet that it has been ignored. But I don't know.
Posted by: Scott A | Feb 28, 2007 1:33:55 PM
Scott: without turning this into an abortion versus death penalty discussion (one that I actually think could be very interesting and fruitful for the blog), I would just suggest that it's possible (again, I do not hold myself out to be an expert on *anything* medical or doctor...ical) that the AMA or some doctors individually do not view unborn fetuses as patients and/or persons, the mother is the patient, and thus they fully comply with their oaths and duties by serving the patient - even if ultimately harming the fetus.
It is admittedly uncomfortable to set up a paradigm where sentenced-to-death murderers are held up in a higher regard than unborn fetuses (at least in terms of what constitutes "harm" and the central mission of doctors), but it is not implausible.
Posted by: Brett T. | Feb 28, 2007 1:46:52 PM
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