Doctors forced into middle of battle over lethal injection

ST. LOUIS -- The death penalty in the United States may be hitting a roadblock: the Hippocratic Oath.

Condemned inmates in three states have successfully challenged lethal injection as cruel and unusual. For the first time, judges have sided with inmates in ruling that lethal injection has the potential to be unconstitutionally cruel -- that without doctors present, the procedure could be inhumane.

The problem is that few doctors are willing to do it. Ultimately, this could put a halt to the use of lethal injections.

In an oft-cited article in March in the New England Journal of Medicine, Dr. Atul Gawande, who said he favors the death penalty, summed up the belief of many in his profession.

"Medicine is being made an instrument of punishment," wrote Gawande, a general and endocrine surgeon at Brigham and Women's Hospital in Boston. "We should seek a legal ban on the participation of physicians and nurses in executions.

"And if it turns out that executions cannot then be performed without, as the courts put it, 'unconstitutional pain and cruelty,' the death penalty should be abolished."

Regardless, judges in Missouri, California and North Carolina halted executions and required that physicians oversee the procedures. The first two states couldn't find anesthesiologists willing to take part, according to a report in the St. Louis Post-Dispatch.

In North Carolina, a compromise was worked out. The state performed an execution after the court allowed a doctor to sit in another room and monitor the condemned using a machine.

Doctors are angry about being forced into the middle, saying the courts have trod on their time-honored ethical code. And they're refusing to take part in executions.

"It's extremely important that patients feel that physicians always do what's in their best interest," said Dr. Jerry Kennett, president of the Missouri State Medical Association. His group's position is that it is "totally wrong and unethical for physicians to be forced to participate in executions."

The group will not specifically block any of its 6,000 members from participating, Kennett said, although it generally discourages them.

"Physicians always take their patients' interest first," he said. "Certainly, execution would be outside those guidelines."

Tina Steinman, executive director of the Missouri Board of Healing Arts, which licenses physicians, said the board has no position on physician involvement.

Lethal injection is the primary execution method of 37 of the 38 states with the death penalty. Nebraska uses electrocution only. Seventeen of the 37 states require that a doctor participate. Missouri does not, but has used a physician.

If federal courts continue to press for physician participation, and if doctors continue to agitate against it, more executions could be halted, said Richard Dieter, executive director of the nonprofit Death Penalty Information Center.

"I think we're at a dead end with this protocol," said Dieter. "If someone could come up with something - a different kind of technology - I think it would be welcomed."

Dieter said the disclosures in Missouri demonstrate problems with allowing a state to operate its executions with secret personnel and procedures.

The procedure "needs to be in the sunlight," he said. "And that makes it less likely that doctors will participate."

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Information from: St. Louis Post-Dispatch, http://www.stltoday.com