Numb and Number

Legal challenges shed light on Missouri's lethal-injection protocols

Lethal injections in Missouri

Born in 460 B.C. into a world that considered illness a sign of the gods' displeasure, Hippocrates broke with tradition and founded a medical school on the island of Cos. But he's better known for penning the Hippocratic Oath, a set of guiding principles for physicians throughout the world.

Except maybe Missouri.

"To carry out lethal injection, the [Missouri] Department of Corrections contracts with a medical doctor and a licensed practical nurse to mix the drugs and start the IV," reads an affidavit signed by corrections director Larry Crawford.

"An IV catheter is inserted into the femoral vein," Crawford states in a second affidavit, dated August 8 of this year. "Medical personnel monitor an electrocardiograph (EKG). When heart activity ceases, the physician pronounces death. The curtain is drawn, and the physician directly examines the body to verify that the prisoner is dead."

The revelations come to light in a civil suit filed by Michael Anthony Taylor and Richard Clay, two death-row inmates who are challenging the constitutionality of the state's lethal-injection method. A state court sentenced Taylor to death in 1991 for the rape and murder of fifteen-year-old Ann Harrison. Clay was sentenced to die in 1995 for the murder of Randy Martindale. The state's high court has yet to set an execution date for either inmate.

The medical community has long decried physician involvement in lethal injections as unethical. The Hippocratic Oath, which physicians recite on the first day of medical school, reads in part: "To please no one will I prescribe a deadly drug nor give advice which may cause his death."

In 1992 the American Medical Association (AMA), the nation's largest physicians' group, went so far as to prohibit its members from participating in lethal injections, devoting an entire section of its "Code of Medical Ethics" to the subject of capital punishment. The code bans members from "monitoring vital signs on site or remotely (including monitoring electrocardiograms)" and from "starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses...and consulting with or supervising lethal injection personnel."

Two years later a coalition of medical groups including the American College of Physicians released a report titled "Breach of Trust: Physician Participation in Executions in the United States," in which the authors argue that doctors should not participate in lethal injections because the practice is not a medical procedure.

"As a member of the profession, a physician cannot participate in a legally authorized execution," says Priscilla Ray, chairman of the AMA's Council on Ethical and Judicial Affairs. Adds Ray: "Unethical actions would be preparing a compound for execution or monitoring vital signs and pronouncing death."

Although the Missouri State Board of Registration for the Healing Arts, the agency that licenses doctors to practice in the state, takes disciplinary actions against physicians who run afoul of state regulations, it does not explicitly ban participation in lethal injections.

"I don't know if that's ever been brought before the board," says executive director Tina Steinman.

So far state officials have sidestepped attorneys' requests to identify the participating physician or physicians, arguing that the issue has no bearing on the plaintiffs' constitutional challenge. Similarly, attorneys for the state have declined to disclose whether the doctor is a member of the AMA.

That irks the attorneys who represent Michael Anthony Taylor and Richard Clay. "The state cannot regulate someone it doesn't know about. As long as the name of the physician is a secret, that physician could do all manner of sadistic wrong while carrying out this homicide," says Taylor's attorney, John Simon. "I don't think it's unreasonable to expect that a patient would be very concerned if the hands that were touching them were the hands of a deliberate killer."

The current lawsuit builds on an earlier action brought by convicted murderer Timothy Johnston, which took issue with the chemicals used to execute Missouri inmates. Like most of the other 37 states that perform lethal injections, Missouri uses a three-chemical sequence: an initial dose of thiopental sodium (a short-acting anesthetic commonly known as sodium pentothal); pancuronium bromide (a powerful muscle relaxant, commercially known as Pavulon, which causes paralysis); and potassium chloride (a salt that causes cardiac arrest). Johnston's lawyers argued that a subanesthetic dose of sodium pentothal might result in the Pavulon rendering the inmate fully conscious but unable to move or communicate as he "consciously [suffered] an excruciatingly painful and protracted death." In a report published in 2001, the American Veterinary Association (AVMA) condemned the chemical combination of sodium pentothal and Pavulon for animal euthanasia. Missouri veterinary regulations prohibit the method. (For more on the Johnston case, see "Uncomfortably Numb," in the December 15, 2004, issue of the Riverfront Times.)

Johnston was executed on August 31.

The current case argues along lines similar to Johnston's. But Johnston's lawyers weren't privy to the state's protocols for lethal injection until after the Missouri Supreme Court had set the inmate's execution date. Now many of those details have been revealed.

According to court documents, Missouri carries out lethal injections via:

a 5-gram dose of sodium pentothal, followed by

a 60-milligram dose of pancuronium bromide, followed by

120 cc of a strong potassium chloride solution.

According to University of Massachusetts anesthesiologist Mark Dershwitz, who testified in the Johnston case, a five-gram dose of sodium pentothal is ten to fifteen times greater than the average surgical dose. "By the time all five grams of [sodium pentothal] solution are injected, it is my [opinion], to a reasonable degree of medical certainty, that over 99.99999999 percent of the population would be unconscious [during the remainder of the lethal injection procedure]," Dershwitz states in an affidavit.

During testimony in open court, Dershwitz also stated that Missouri utilizes "a board certified surgeon and a licensed practical nurse" to mix the sodium pentothal and set the IV line. "A [needle is] placed into the femoral vein," Dershwitz testified, referring to a thumb-diameter vein that transports blood from the leg to the heart. "[A] wire is inserted through the needle and the needle is withdrawn.... Once the wire is inserted into the femoral vein then the catheter is inserted over the wire.... Once the catheter is inserted over the wire into the vein, the hole that was created is actually sealed. And then the catheter is typically sutured in place to make it secure and a bandage is applied over the insertion site and the procedure is done."

Little is known of lethal-injection protocols nationwide, but physician involvement has come to light in a handful of cases. In 1990, for instance, three doctors participated in an execution in Illinois by establishing the intravenous opening, monitoring the inmate and pronouncing him dead. Kentucky Governor Ernie Fletcher, himself a doctor, faced calls for the revocation of his medical license last year when he signed a death warrant for inmate Thomas Clyde Bowling.

Deborah Denno, a Fordham University law professor who has undertaken several studies that compare states' execution protocols, says Missouri's specification of the femoral vein is notable. "States generally just talk about providing intravenous access and injecting; they don't say where," says Denno, a lethal-injection opponent. "States generally provide very little information, but there's a tremendous amount of variability among procedures. You have some states that are doing it with far more protections than others. We're really talking about multiple lethal-injection procedures."

According to Dershwitz's testimony in the Johnston trial, the federal government is the only other jurisdiction that specifies use of the femoral vein.

Attorneys for the state recently filed a motion to dismiss the pending suit, claiming that the issues it raises should have been included in the appeals process. The motion argues that a finding in the inmates' favor would "result in their executions being delayed indefinitely."

Court documents provide tantalizing hints about the identity of the doctor and nurse who take part in Missouri executions. Filings in the current case reveal that the doctor is a board-certified surgeon. Records in Johnston's case, meanwhile, reveal that he has mixed sodium pentothal "approximately 1,000 times, and has placed an IV in central lines 20,000 to 30,000 times."

Dr. Jonathan Groner, medical director for trauma at Children's Hospital in Columbus, Ohio, testified in the Johnston trial. "It's a big mystery," Groner says of the description. "Someone whose specialty was dialysis patients could do a lot of central lines [in the femoral vein], but I don't know if you could get up to twenty or thirty thousand. It seems more likely that he's an anesthesiologist, but the documents claim that he's a board-certified surgeon."

In objecting to releasing the names, the state argues in the present case that "if the persons involved are identified, this could well lead to them being targeted for harassment or even physical retaliation by offenders, their families, their friends, or others opposed to the death penalty."

Likewise, Missouri Department of Corrections spokesman John Fougere declines to identify the medical personnel. "We don't release that for security and safety reasons," says Fougere. "If the identities of the people were released, then those people would probably be less likely to want to volunteer to help on that particular process, but also there's the issue of their safety."

The plaintiffs' attorneys have countered passionately in court filings: "If death-penalty opponents were going to tamper with anyone, it would not be with the miscreant on the other end of the needle, but with the Governor who denied clemency, the judges who denied relief and in fact set the execution date, or the prosecutor who sought the death penalty.... If we were to follow the defendants' logic, we would need to have an anonymous Governor and an anonymous Missouri Supreme Court.... If the defendants' board-certified surgeon does not feel welcome at the country club or at medical society meetings or at other physician's cocktail parties because he uses his professional skills in support of trailer-park politics, he or she knew that going in."

Taylor's attorney, John Simon, adds that as long as the names are concealed, the competence of the medical personnel remains a mystery. "We have been denied any information about this person," says Simon. "For all we know, this person is a rogue who does nothing but participate in executions secretly."

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