When Law and Ethics Collide — Why Physicians Participate in Executions Atul Gawande, M.D., M.P.H

The NEW ENGLAND JOURNAL of MEDICINE

Perspectivemarch 23, 2006

When Law and Ethics Collide — Why Physicians Participate in Executions Atul Gawande, M.D., M.P.H. n February 14, 2006, a U.S. District Court is- immediately and loudly opposed sued an unprecedented ruling concerning the such physician participation as a O clear violation of medical ethics California execution by lethal injection of murderer codes. “Physicians are healers, not Michael Morales. The ruling ordered that the state executioners,” the ASA’s president told reporters. Nonetheless, in have a physician, specifically an ity that prisoners experienced suf- just two days, prison officials anesthesiologist, personally super- focation from the paralytic, a feel- announced that they had found vise the execution, or else drasti- ing much like being buried alive, two willing anesthesiologists. The cally change the standard proto- and felt intense pain from the court agreed to maintain their col for lethal injections.1 Under potassium bolus. This experience anonymity and to allow them to the protocol, the anesthetic sodi- would be unacceptable under the shield their identities from wit- um thiopental is given at massive Constitution’s Eighth Amendment nesses. Both withdrew the day be- doses that are expected to stop protections against cruel and un- fore the execution, however, after breathing and extinguish con- usual punishment. So the judge the Court of Appeals for the Ninth sciousness within one minute af- ordered the state to have an an- Circuit added a further stipulation ter administration; then the par- esthesiologist present in the death requiring them personally to ad- alytic agent pancuronium is given, chamber to determine when the minister additional medication if followed by a fatal dose of potas- prisoner was unconscious enough the prisoner remained conscious sium chloride. for the second and third injections or was in pain.2 This they would The judge found, however, that to be given — or to perform the not accept. The execution was evidence from execution logs execution with sodium thiopen- then postponed until at least May, showed that six of the last eight tal alone. but the court has continued to prisoners executed in California The California Medical Associ- require that medical profession- had not stopped breathing before ation, the American Medical Asso- als assist with the administration technicians gave the paralytic ciation (AMA), and the American of any lethal injection given to agent, raising a serious possibil- Society of Anesthesiologists (ASA) Morales.

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The New England Journal of Medicine Downloaded from nejm.org on October 3, 2016. For personal use only. No other uses without permission. Copyright © 2006 Massachusetts Medical Society. All rights reserved. PERSPECTIVE when law and ethics collide — why physicians participate in executions

This turn of events is the cul- other such execution.4 Since 1976, chest. An intravenous line flows mination of a steady evolution in only 2 prisoners have been exe- into his or her arm. Under the methods of execution in the cuted by firing squad, 3 by hang- protocol devised in 1977 by Dr. United States. On July 2, 1976, in ing, and 12 by gas chamber.5 Stanley Deutsch, the chairman of deciding the case of Gregg v. Electrocution, thought to cause anesthesiology at the University Georgia, the Supreme Court legal- a swifter, more acceptable death, of Oklahoma, prisoners are first ized capital punishment after a was used in 74 of the first 100 given 2500 to 5000 mg of sodi- decade-long moratorium on exe- executions after Gregg. But officials um thiopental (5 to 10 times the cutions. Executions resumed six found that the electrical flow fre- recommended maximum), which months later, on January 17, 1977, can produce death all by itself in Utah, with the death by firing by causing complete cessation of squad of Gary Gilmore for the the brain’s electrical activity fol- killing of Ben Bushnell, a Provo lowed by respiratory arrest and motel manager. circulatory collapse. Death, how- Death by firing squad, however, can take up to 15 minutes ever, came to be regarded as too or longer with thiopental alone, bloody and uncontrolled. (Gil- and the prisoner may appear to more’s heart, for example, did not gasp, struggle, or convulse. So 60 stop until two minutes afterward, to 100 mg of the paralytic agent and shooters have sometimes pancuronium (10 times the usual weakened at the trigger, as fa- dose) is injected one minute or so mously happened in 1951 in Utah after the thiopental. Finally, 120 when the five riflemen fired away quently arced, cooking flesh and to 240 meq of potassium is given from the target over Elisio Mares’s sometimes igniting prisoners — to produce rapid cardiac arrest. heart, only to hit his right chest postmortem examinations fre- Officials liked this method. and cause him to bleed slowly to quently had to be delayed for the Because it borrowed from estab- death).3 bodies to cool — and yet some lished anesthesia techniques, it Hanging came to be regard- prisoners still required repeated made execution like familiar med- ed as still more inhumane. Under jolts before they died. In Ala- ical procedures rather than the the best of circumstances, the cer- bama, in 1979, for example, John grisly, backlash-inducing specta- vical spine is broken at C2, the Louis Evans III was still alive after cle it had become. (In Missouri, diaphragm is paralyzed, and the two cycles of 2600 V; the warden executions were even moved to a prisoner suffocates to death, a called Governor George Wallace, prison-hospital procedure room.) minutes-long process. who told him to keep going, and It was less disturbing to witness. Gas chambers proved no bet- only after a third cycle, with wit- The drugs were cheap and rou- ter: asphyxiation from cyanide nesses screaming in the gallery, tinely available. And officials gas, which prevents cells from and almost 20 minutes of suffer- could turn to doctors and nurses using oxygen by inactivating cyto- ing did Evans finally die.3 Only to help with technical difficul- chrome oxidase, took even longer Florida, Virginia, and Alabama per- ties, attest to the painlessness than death by hanging, and the sisted with electrocutions with and trustworthiness of the tech- public revolted at the vision of any frequency, and under threat nique, and lend a more profes- suffocating prisoners fighting for of Supreme Court review, they too sional air to the proceedings. air and then seizing as the hy- abandoned the method. But medicine balked. In 1980, poxia worsened. In Arizona, in Lethal injection now appears when the first execution was 1992, for example, the asphyxia- to be the sole method of execu- planned using Dr. Deutsch’s tech- tion of triple murderer Donald tion accepted by courts as hu- nique, the AMA passed a resolu- Harding took 11 minutes, and mane enough to satisfy Eighth tion against physician participa- the sight was so horrifying that Amendment requirements — tion as a violation of core medical reporters began crying, the attor- large ly because it medicalizes the ethics. It affirmed that ban in de- ney general vomited, and the pris- process. The prisoner is laid su- tail in its 1992 Code of Medical on warden announced he would pine on a hospital gurney. A Ethics. Article 2.06 states, “A phy- resign if forced to conduct an- white bedsheet is drawn to his sician, as a member of a profes-

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sion dedicated to preserving life the prisoner to show the team the munity and promise anonymity. when there is hope of doing so, best injection site.6 Still, the doc- Nonetheless, several physicians should not be a participant in a tors refused to give advice about have faced such challenges, though legally authorized execution,” al- the injection itself and simply none have lost their licenses as though an individual physician’s watched as the warden prepared yet.7 And despite the promised opinion about capital punishment the chemicals. When he tried to anonymity, several states have remains “the personal moral de- push the syringe, however, it did produced the physicians in court cision of the individual.” It states not work. He had mixed all the to vouch publicly for the legiti- that unacceptable participation drugs together, and they had pre- macy and painlessness of the pro- includes prescribing or adminis- cedure. tering medications as part of the Just by being States have affirmed that phy- execution procedure, monitoring sicians and nurses — including vital signs, rendering technical present, by having those who are prison employees advice, selecting injection sites, — have a right to refuse to par- starting or supervising placement expertise, Dr. A had ticipate in any way in executions. of intravenous lines, or simply be- Yet they have found physicians and ing present as a physician. Pro- opened himself to nurses who are willing to partici- nouncing death is also considered being called on to pate. Who are these people? And unacceptable, because the physi- why do they do it? cian is not permitted to revive take responsibility the prisoner if he or she is found to be alive. Only two actions were for the execution. It is not easy to find answers acceptable: provision at the pris- to these questions. The medical oner’s request of a sedative to cipitated into a clot of white personnel are difficult to identi- calm anxiety beforehand and cer- sludge. “I could have told you fy and reluctant to discuss their tification of death after another that,” one of the doctors reported- roles, even when offered anonym- person had pronounced it. ly said, shaking his head.3 After- ity. Among the 15 medical profes- The code of ethics of the So- ward, Gray went to pronounce sionals I located who have helped ciety of Correctional Physicians the prisoner dead but found him with executions, however, I found establishes an even stricter ban: still alive. Though the doctors 4 physicians and 1 nurse who “The correctional health profes- were part of the team now, they agreed to speak with me; collec- sional shall . . . not be involved did nothing but suggest allowing tively, they have helped with at in any aspect of execution of the time for more drugs to run in. least 45 executions. None were death penalty.” The American Today, all 38 death-penalty zealots for the death penalty, and Nurses Association (ANA) has states rely on lethal injection. Of none had a simple explanation for adopted a similar prohibition. 1012 murderers executed since why they did this work. The role, Only the national pharmacists’ 1976, 844 were executed by in- most said, had crept up on them. society, the American Pharmaceu- jection.5 Against vigorous oppo- Dr. A has helped with about tical Association, permits involve- sition from the AMA and state eight executions in his state. He ment, accepting the voluntary medical societies, 35 of the 38 was extremely uncomfortable talk- provision of execution medica- states explicitly allow physician ing about the subject. Nonetheless, tions by pharmacists as ethical participation in executions. Indeed, he sat down with me in a hotel conduct. 17 require it: Colorado, Florida, lobby in a city not far from where States, however, wanted a med- Georgia, Idaho, Louisiana, Mis- he lives and told me his story. ical presence. In 1982, in Texas, sissippi, Nevada, North Carolina, Almost 60 years old, he is Dr. Ralph Gray, the state prison New Hampshire, New Jersey, New board certified in internal medi- medical director, and Dr. Bascom Mexico, Oklahoma, Oregon, South cine and critical care, and he and Bentley agreed to attend the coun- Dakota, Virginia, Washington, and his family have lived in their small try’s first execution by lethal in- Wyoming. To protect participat- town for 30 years. He is well re- jection, though only to pronounce ing physicians from license chal- spected. Almost everyone of local death. But once on the scene, lenges for violating ethics codes, standing comes to see him as Gray was persuaded to examine states commonly provide legal im- their primary care physician —

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the bankers, his fellow doctors, animal behavior of some of these the time. He was there to help, the mayor. Among his patients is people. . . . ” Ultimately, he de- they had a problem, and so he the warden of the maximum- cided to participate, he said, be- would help. It did not occur to security prison that happens to cause he was only helping with him to do otherwise. be in his town. One day several monitoring, because he was need- In two of the prisoners, he told years ago, they got talking dur- ed by the warden and his com- me, he found a good vein and ing an appointment. The warden munity, because the sentence was placed the IV. In one, however, he complained of difficulties staff- society’s order, and because the could not find a vein. All eyes were ing the prison clinic and asked punishment did not seem wrong. on him. He felt responsible for Dr. A if he would be willing to At the first execution, he was the situation. The prisoner was see prisoners there occasionally. instructed to stand behind a cur- calm. Dr. A remembered the pris- Dr. A said he would. He’d have tain watching the inmate’s heart oner saying to him, almost to made more money in his own rhythm on a cardiac monitor. Nei- comfort him, “No, they can never clinic — the prison paid $65 an ther the witnesses on the other get the vein.” The doctor decided hour — but the prison was im- side of the glass nor the prisoner to place a central line. People portant to the community, he could see him. A technician placed scrambled to find a kit. liked the warden, and it was just two IV lines. Someone he could I asked him how he placed the a few hours of work a month. He not see pushed the three drugs, line. It was like placing one “for was happy to help. one right after another. Watching any other patient,” he said. He de- Then, a year or two later, the the monitor, he saw the sinus cided to place it in the subclavian warden asked him for help with rhythm slow, then widen. He rec- vein, because that is what he most a different problem. The state had ognized the peaked T waves of commonly did. He opened the kit a death penalty, and the legisla- hyperkalemia followed by the fine for the triple-lumen catheter and ture had voted to use lethal in- spikes of ventricular fibrillation explained to the prisoner every- jection exclusively. The executions and finally the flat, unwavering thing he was going to do. I asked were to be carried out in the war- line of an asystolic arrest. He wait- him if he was afraid of the pris- den’s prison. He needed doctors, ed half a minute, then signaled to oner. “No,” he said. The man was he said. Would Dr. A help? He another physician who went out perfectly cooperative. Dr. A put on would not have to deliver the le- before the witnesses to place his sterile gloves, gown, and mask. thal injection. He would just help stethoscope on the prisoner’s un- He swabbed the man’s skin with with cardiac monitoring. The war- moving chest. The doctor listened antiseptic. den gave the doctor time to con- for 30 seconds and then told the “Why?” I asked. sider it. warden the inmate was dead. Half “Habit,” he said. He injected “My wife didn’t like it,” Dr. A an hour later, Dr. A was released. local anesthetic. He punctured the told me. “She said, ‘Why do you He made his way through a side vein with one stick. He checked want to go there?’ ” But he felt door, past the crowd gathered to make sure he had good, non- torn. “I knew something about outside, and headed home. pulsatile flow. He threaded the the past of these killers.” One of In three subsequent executions guidewire, the dilator, and final- them had killed a mother of three there were difficulties, though, ly the catheter. All went smooth- during a convenience-store rob- all with finding a vein for an IV. ly. He flushed the lines, secured bery and then, while getting away, The prisoners were either obese the catheter to the skin with a shot a man who was standing or past intravenous drug users, stitch, and put a clean dressing at his car pumping gas. Another or both. The technicians would on, just as he always does. Then convict had kidnapped, raped, and stick and stick and, after half an he went back behind the curtain strangled to death an 11-year-old hour, give up. This was a possibil- to monitor the lethal injection. girl. “I do not have a very strong ity the warden had not prepared Only one case seemed to real- conviction about the death pen- for. Dr. A had placed numerous ly bother him. The convict, who alty, but I don’t feel anything neg- lines. Could he give a try? had killed a policeman, weighed ative about it for such people ei- OK, Dr. A decided. Let me take about 350 pounds. The team ther. The execution order was a look. placed his intravenous lines with- given legally by the court. And This was a turning point, out trouble. But after they had morally, if you think about the though he didn’t recognize it at given him all three injections, the

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prisoner’s heart rhythm contin- license was filed with the state. monitor that the state was taking ued. “It was an agonal rhythm,” If he wasn’t aware of the AMA’s care of them. They had the first Dr. A said. “He was dead,” he stance on the issue earlier, he two executions after the death insisted. Nonetheless, the rhythm was now. penalty was reinstated, and there continued. The team looked to Ninety percent of his patients was a problem with the second Dr. A. His explanation of what supported him, he said, and the one, where the physicians were happened next diverges from what state medical board upheld his li- going in a minute or so after the I learned from another source. I cense under a law that defined event and still hearing heartbeats. was told that he instructed that participation in executions as ac- The two physicians were doing another bolus of potassium be ceptable activity for a physician. this out of courtesy, because the given. When I asked him if he facility was in their area. But the did, he said, “No, I didn’t. As far case unnerved them to the point as I remember, I didn’t say any- that they quit. The officials had thing. I think it may have been a lot of trouble finding another another physician.” Certainly, how- doctor after that. So that was ever, all boundary lines had been when my patient talked to me.” crossed. He had agreed to take Dr. B did not really want to part in the executions simply to get involved. He was in his 40s pronounce death, but just by be- then. He’d gone to a top-tier ing present, by having expertise, medical school. He’d protested he had opened himself to being the Vietnam War in the 1960s. called on to do steadily more, to “I’ve gone from a radical hippie take responsibility for the execu- to a middle-class American over tion itself. Perhaps he was not the But he decided that he wanted no the years,” he said. “I wasn’t on executioner. But he was darn close part of the controversy anymore any bandwagons anymore.” But to it. and quit. He still defends what he his patient said the team needed I asked him whether he had did. Had he known of the AMA’s a physician only to pronounce known that his actions — every- position, though, “I never would death. Dr. B had no personal ob- thing from his monitoring the have gotten involved,” he said. jection to capital punishment. So executions to helping officials in the moment — “it was a quick with the process of delivering judgment” — he said OK, “but the drugs — violated the AMA’s Dr. B spoke to me between only to do the pronouncement.” ethics code. “I never had any in- clinic appointments. He is a The execution was a few days kling,” he said. And indeed, the family physician, and he has par- later by electric chair. It was an only survey done on this issue, in ticipated in some 30 executions. awful sight, he said. “They say an 1999, found that just 3 percent of He became involved long ago, electrocution is not an issue. But doctors knew of any guidelines when electrocution was the pri- when someone comes up out of governing their participation in mary method, and then continued that chair six inches, it’s not for executions.8 The humaneness of through the transition to lethal nothing.” He waited a long while the lethal injections was chal- injections. He remains a partici- before going out to the prisoner. lenged in court, however. The pant to this day. But it was appar- When he did, he performed a sys- state summoned Dr. A for a pub- ent that he had been more cautious tematic examination. He checked lic deposition on the process, in- and reflective about his involve- for a carotid pulse. He listened to cluding the particulars of the ex- ment than Dr. A had. He also the man’s heart three times with ecution in which the prisoner seemed more troubled by it. a stethoscope. He looked for a pu- required a central line. His local Dr. B, too, had first been ap- pil response with his pen light. newspaper printed the story. Word proached by a patient. “One of my Only then did he pronounce the spread through his town. Not patients was a prison investiga- man dead. long after, he arrived at work to tor,” he said. “I never quite un- He thought harder about wheth- find a sign pasted to his clinic derstood his role, but he was an er to stay involved after that first door reading, “THE KILLER DOC- intermediary between the state time. “I went to the library and TOR.” A challenge to his medical and the inmates. He was hired to researched it,” and that was when

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he discovered the AMA guidelines. “I agonize over the ethics of one a physician in a Southern As he understood the code, if he this every time they call me to go state prison and the other a nurse did nothing except make a pro- down there,” he said. His wife who had worked in a prison out nouncement of death, he would knew about his involvement from West. Both were less uncertain be acting properly and ethically. early on, but he could not bring about being involved in executions (This was not a misreading. The himself to tell his children until than Dr. A or Dr. B. AMA only later distinguished be- they were grown. He has let al- The physician, Dr. C, was tween pronouncing death, which most no one else know. Even his younger than the others and rel- it now considers unethical, and medical staff is unaware. atively junior among his prison’s certifying death after someone doctors. He did not trust me to has made the initial pronounce- “If the doctors and keep his identity confidential, and ment, which it considers ethical.) I think he worried for his job if Knowing the guidelines reas- nurses are removed, anyone found out about our con- sured him about his involvement versation. As a result, although I and made him willing to contin- I don’t think [lethal had independent information ue. They also emboldened him to that he had participated in at draw thicker boundaries around injections] could least two executions, he would his participation. During the first be competently or speak only in general terms lethal injections, he and another about the involvement of doc- physician “were in the room when predictably done.” tors. But he was clear about what they were administering the he believed. drugs,” he said. “We could see the The trouble is not that the le- “I think that if you’re going telemetry. We could see a lot of thal injections seem cruel to him. to work in the correctional set- things. But I had them remove “Mostly, they are very peaceful,” ting, [participating in executions] us from that area. I said I do he said. The agonizing comes is potentially a component of what not want any access to the mon- instead from his doubts about you need to do,” he said. “It is itor or the EKGs. . . . A couple whether anything is accomplished. only a tiny part of anything that times they asked me about rec- “The whole system doesn’t seem you’re doing as part of your pub- ommendations in cases in which right,” he told me toward the end lic health service. A lot of society there were venous access prob- of our conversation. “I guess I see thinks these people should not lems. I said, ‘No. I’m not going more and more [executions], and get any care at all.” But in his job to assist in any way.’ They would I really wonder. . . . It just seems he must follow the law, and it ob- ask about amounts of medicines. like the justice system is going ligates him to provide proper care, They had problems getting the down a dead-end street. I can’t he said. It also has set the pris- medicines. But I said I had no say that [lethal injection] lessens oners’ punishment. “Thirteen ju- interest in getting involved in the incidence of anything. The rors, citizens of the state, have any of that.” real depressing thing is that if you made a decision. And if I live in Dr. B kept himself at some don’t get to these people before that state and that’s the law, then remove from the execution pro- the age of three or four or five, I would see it as being an obli- cess, but he would be the first to it’s not going to make any dif- gation to be available.” admit that his is not an ethically ference in what they do. They’ve He explained further. “I think pristine position. When he re- struck out before they even start- that if I had to face someone I fused to provide additional assis- ed kindergarten. I don’t see [exe- loved being put to death, I would tance, the execution team simply cutions] as saying anything about want that done by lethal injec- found others who would. He was that.” tion, and I would want to know glad to have those people there. that it is done competently.” “If the doctors and nurses are re- The nurse saw his participa- moved, I don’t think [lethal in- The medical people most wary tion in fairly similar terms. He jections] could be competently or of speaking to me were those had fought as a Marine in Vietnam predictably done. I can tell you I who worked as full-time employ- and later became a nurse. As an wouldn’t be involved unless those ees in state prison systems. None- Army reservist, he served with a people were involved.” theless, two did agree to speak, surgical unit in Bosnia and in

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Iraq. He worked for many years health care team,” he said, “it was feel . . . ’ and then he passed on critical care units and, for al- my responsibility to make sure out.” They completed the injec- most a decade, as nurse manager that everything be done in a way tions and, three minutes later, he for a busy emergency department. that was professional and respect- flatlined on the cardiac monitor. He then took a job as the nurse- ful to the inmate as a human The two physicians on the scene in-charge for his state peniten- being.” He spoke to an official had been left nothing to do ex- tiary, where he helped with one with the state nursing board about cept pronounce the inmate dead. execution by lethal injection. the process, and although involve- It was the state’s first execu- ment is against the ANA’s ethics tion by this method, and “at the I have personally been in fa- time, there was great naiveté about vor of the death penalty. I was a lethal injection,” he said. “No one senior official in the 1992 Clin- in that state had any idea what ton presidential campaign and in was involved.” The warden had the administration, and in that the Texas protocol and thought it role I defended the President’s looked pretty simple. What did he stance in support of capital pun- need medical personnel for? The ishment. I have no illusions that warden told the nurse that he the death penalty deters anyone would start the IVs himself, though from murder. I also have great he had never started one before. concern about the ability of our “Are you, as a doctor, going to justice system to avoid putting let this person stab the inmate for someone innocent to death. How- half an hour because of his in- code, the board said he could do ever, I believe there are some hu- experience?” the nurse asked me. everything except push the drugs. man beings who do such evil as “I wasn’t.” He said, “I had no So he issued the purchase re- to deserve to die. I am not trou- qualms. If this is to be done cor- quest to the pharmacist supply- bled that Timothy McVeigh was rectly, if it is to be done at all, ing the drugs. He did a dry run executed for the 168 people he then I am the person to do it.” with the public citizen chosen to had killed in the Oklahoma City This is not to say that he felt push the injections and with the bombing, or that John Wayne easy about it, however. “As a guards to make sure they knew Gacy was for committing 33 mur- Marine and as a nurse . . . , I how to bring the prisoner out and ders. The European Union refuses hope I will never become some- strap him down. On the day of to participate in any way in the one who has no problem taking the execution, the nurse dressed trial of Saddam Hussein because another person’s life.” But soci- as if for an operation, in scrubs, of the court’s insistence on allow- ety had decided the punishment mask, hat, and sterile gown and ing the death penalty as a possi- and had done so carefully with gloves. He explained to the pris- ble punishment, but given Hus- multiple judicial reviews, he said. oner exactly what was going to sein’s role in the massacre of The convict had killed four peo- happen. He placed two IVs and more than 100,000 people, the Eu- ple even while in prison. He had taped them down. The warden ropean position only puzzles me. arranged for an accomplice to read the final order to the pris- Still, I have always regarded blow up the home of a county at- oner and allowed him his last involvement in executions by phy- torney he was angry with while words. “He didn’t say anything sicians and nurses as wrong. The the attorney, his wife, and their about his guilt or his innocence,” public has granted us extraordi- child were inside. When the ac- the nurse said. “He just said that nary and exclusive dispensation to complice turned state’s evidence, the execution made all of us in- administer drugs to people, even the inmate arranged for him to be volved killers just like him.” to the point of unconsciousness, tortured and killed at a roadside The warden gave the signal to to put needles and tubes into their rest stop. The nurse did not dis- start the injection. The nurse bodies, to do what would other- agree with the final judgment that hooked the syringe to the IV wise be considered assault, be- this man should be put to death. port and told the citizen to push cause we do so on their behalf The nurse took his involvement the sodium thiopental. “The in- — to save their lives and provide seriously. “As the leader of the mate started to say, ‘Yeah, I can them comfort. To have the state

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take control of these skills for for the jails in his area and soon of cancer — except his cancer is its purposes against a human be- became an advocate for correc- a court order.” Dr. D said he has ing — for punishment — seems tional medicine. “the cure for this cancer” — ab- a dangerous perversion. Society Three years ago, the doctors olition of the death penalty — has trusted us with powerful abil- who had been involved in execu- but “if the people and the gov- ities, and the more willing we tions in his state pulled out. Of- ernment won’t let you provide it, are to use these abilities against ficials asked Dr. D if his group and a patient then dies, are you individual people, the more we would take the contract. Before not going to comfort him?” risk that trust. The public may answering, he went to witness His group took the contract, like executions, but no one likes an execution. “It was a very emo- and he has been part of the med- executioners. ical team for each execution since. My conversations with the phy- “This is an end- The doctors are available to help sicians and the nurse I had tracked if there are difficulties with IV down, however, rattled both of of-life issue, just access, and Dr. D considers it these views — and no conversa- as with any other their task to ensure that the pris- tion more so than one I had with oner is without pain or suffering the final doctor I spoke to. Dr. D terminal disease. through the process. He himself is a 45-year-old emergency physi- provides the cardiac monitoring cian. He is also a volunteer med- It just happens that and the final determination of ical director for a shelter for death. Watching the changes on abused children. He works to re- it involves a legal the two-line electrocardiogram duce homelessness. He opposes process instead of tracing, “I keep having that re- the death penalty because he re- flex as an ER doctor, wanting to gards it as inhumane, immoral, a medical process.” treat that rhythm,” he said. Aside and pointless. And he has par- from that, his main reaction is ticipated in six executions so far. tional experience for me,” he said. to be sad for everyone involved About eight years ago, a new “I was shocked to witness some- — the prisoner whose life has led jail was built down the street from thing like this.” He had opposed to this, the victims, the prison the hospital where he worked, and the death penalty since college, officials, the doctors. The team’s it had an infirmary “the size of and nothing he saw made him payment is substantial — $18,000 our whole emergency room.” The feel any differently. But, at the — but he donates his portion to jail needed a doctor. So, out of same time, he felt there were the children’s shelter where he curiosity as much as anything, needs that he as a correctional volunteers. Dr. D began working there. “I physician could serve. Three weeks after speaking found that I loved it,” he said. He read about the ethics of to me, he told me to go ahead “Jails are an underserved niche participating. He knew about the and use his name. It is Dr. Carlo of health care.” Jails, he pointed AMA’s stance against it. Yet he Musso. He helps with executions out, are different from prisons in also felt an obligation not to aban- in Georgia. He didn’t want to that they house people who are don inmates in their dying mo- seem as if he was hiding any- arrested and awaiting trial. Most ments. “We, as doctors, are not thing, he said. He didn’t want to are housed only a few hours to the ones deciding the fate of this invite trouble, either. But activ- days and then released. “The sub- individual,” he said. “The way I ists have already challenged his stance abuse and noncompliance saw it, this is an end-of-life issue, license and his membership in is high. The people have a wide just as with any other terminal the AMA, and he is resigned to variety of medical needs. It is a disease. It just happens that it the fight. “It just seems wrong for fascinating population. The set- involves a legal process instead us to walk away, to abdicate our ting is very similar to the ER. of a medical process. When we responsibility to the patients,” You can make a tremendous im- have a patient who can no longer he said. pact on people and on public survive his illness, we as physi- health.” Over time, he shifted more cians must ensure he has com- and more of his work to the jail fort. [A death-penalty] patient is There is little doubt that le- system. He built a medical group no different from a patient dying thal injection can be painless and

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peaceful, but as courts have rec- tions cannot then be performed rules and regulations will be ognized, this requires significant without, as the courts put it, wrong. We will then be called on medical assistance and judgment “unconstitutional pain and cru- to make a choice. We must do — for placement of intravenous elty,” the death penalty should our best to choose intelligently lines, monitoring of conscious- be abolished. and wisely. ness, and adjustments in medi- It is far from clear that a so- Sometimes, however, we will cation timing and dosage. In re- ciety that punishes its most evil be wrong — as I think the doc- cent years, medical societies have murderers with life imprison- tors and nurses are who have used persuaded two states, Kentucky ment is worse off than one that their privileged skills to make and Illinois, to pass laws forbid- punishes them with death. But a possible 844 deaths by lethal in- ding physician participation in society in which the government jection thus far. We each should executions. Nonetheless, officials actively subverts core ethical prin- then be prepared to accept the in each of these states intend to ciples of medical practice is pa- consequences. Unlike Dr. Musso, continue to rely on medical su- tently worse off for it. The gov- however, nearly all these doctors pervision, employing nurses and ernment has shown willingness and nurses have sought to keep nurse-anesthetists instead. How, to use medical skills against in- their actions hidden in order not then, to reconcile the conflict be- dividuals for its own purposes to face the consequences. In the tween government efforts to en- — having medical personnel as- final analysis, I think this is sure a medical presence and our sist in the interrogation of pris- what makes their actions seem ethical principles forbidding it? oners, for example, place feed- particularly troubling. We can- Are our ethics what should ing tubes for force-feeding them, not blame them for their im- change? and help with executing them. As pulse to hide. But we cannot ad- The doctors’ and nurse’s argu- medical abilities advance, govern- mire them either. ments for competence and com- ment interest in our skills will An interview with Dr. Carlo Musso can be fort in the execution process do only increase. Preserving the in- heard at www.nejm.org. have some force. But however tegrity of our ethics could not much they may wish to be there be more important. for an inmate, it seems clear The four physicians and the Dr. Gawande is a general and endocrine sur- geon at Brigham and Women’s Hospital and that the inmate is not really their nurse I spoke to all acted against an assistant professor at Harvard Medical patient. Unlike genuine patients, long-standing principles of their School and at the Harvard School of Public an inmate has no ability to re- professions. Their actions have Health, Boston. fuse the physicians’ “care” — in- made our ethics codes effectively 1. Michael Angelo Morales v. Roderick Q. deed, the inmate and his family irrelevant in society. Yet, it must Hickman, No. C 06 219 JF, (Dist. Ct. North- are not even permitted to know be said, most took their moral ern Dist. of Cal. February 14, 2006). the physician’s identity. And the duties seriously. It is worth re- 2. Michael Angelo Morales v. Roderick Q. Hickman, No. CV 06 00926 JF (9 th Cir. Feb- medical assistance provided pri- flecting on this truth as well. ruary 20, 2006). marily serves the government’s The easy thing for any doctor 3. Trombley S. The execution protocol: in- purposes — not the inmate’s or nurse is simply to follow the side America’s capital punishment industry. New York: Crown, 1992. needs as a patient. Medicine is written rules. But each of us has 4. Solotaroff I. The last face you’ll ever see: being made an instrument of a duty not to follow rules and the private life of the American death penal- punishment. The hand of com- laws blindly. In medicine, we face ty. New York: HarperCollins, 2001:7. 5. Death Penalty Information Center execu- fort that more gently places the conflicts about what the right tion database. Accessed March 1, 2006, at IV, more carefully times the bolus and best actions are in all kinds http://www.deathpenaltyinfo.org/executions. of potassium, is also the hand of areas: relief of suffering for php. 6. Breach of trust: physician participation in of death. We cannot escape this the terminally ill, provision of executions in the United States. Philadel- truth. The ethics codes seem narcotics for patients with chron- phia: American College of Physicians, 1994. right. ic pain, withdrawal of care for 7. Norbut M. Complaint cites Georgia doctors who took part in executions. American It is this truth that persuades the critically ill, abortion, and Medical News. July 4, 2005:1. me that we should seek a legal executions, to name just a few. 8. Farber NJ, Aboff BM, Weiner J, Davis EB, ban on the participation of physi- All have been the subject of pro- Boyer EG, Ubel PA. Physicians’ willingness to participate in the process of lethal injections cians and nurses in executions. fessional rules and government for capital punishment. Ann Intern Med And if it turns out that execu- regulation, and at times those 2001;135:884-8.

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