"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Wednesday, May 18, 2016

Doing Harm: Medical Professionals and the Death Penalty

Romell Broom
Romell Broom
"Doctors who do participate in executions are not always the best of the best -- in part because the pay is low and many of these doctors have had little success elsewhere."

It's a brutal photo. Romell Broom holds his arms in front of him, palms out. Dozens of white adhesive squares mark the locations of all 18 attempts to insert an IV by members of an Ohio Department of Rehabilitation and Correction execution team in 2009. Broom had been sentenced to die for the 1984 rape and murder of 14-year-old Tryna Middleton. After two hours, during which eyewitnesses claim Broom showed signs of pain and distress, the execution was called off.

It was the 1st time a state had attempted an execution but failed to kill the condemned person since lethal injection was first used by Texas in 1982. This past March, the Ohio Supreme Court ruled that attempting to execute Broom again would not constitute cruel and unusual punishment or double jeopardy.

With Pfizer's announcement last Friday that it would impose tighter regulations on drugs that can be used for executions, the last open-market source for those drugs has been closed. State-sanctioned killing will continue, but states must now buy drugs from under-regulated compounding pharmacies.

For years, death penalty states have worked on the margins of medicine. During Broom's attempted execution, the fact that medical professionals (including nurses and a phlebotomist) failed to insert IVs properly is a case in point. When the execution team failed, Ohio corrections officials solicited the last minute assistance of physician Dr. Carmelita Bautista, who was working in the prison at the time. Bautista later told The Associated Press that she was asked to help locate an IV site.

The Ohio Supreme Court's green light to the state to attempt to kill Broom again should raise another concern regarding state execution protocols: the ongoing participation of medical professionals in state-sanctioned killing.

In spite of the injunction to "first do no harm," some doctors help maintain the US death penalty regime.

In 2014, an Oklahoma family physician named Dr. Johnny Zellmer tried to insert an IV into the femoral vein of Clayton Lockett during an attempted execution. The drugs entered the tissue under his skin and not his bloodstream, causing extreme pain. After 43 minutes, Lockett died of a heart attack. His family filed a lawsuit against Zellmer, though it was ultimately unsuccessful.

On December 9, 2015, a nurse on Georgia's execution team spent longer than an hour inserting IVs into Brian Keith Terrell's arms and also put one in his hand. Also in Georgia, on February 3, 2016, the execution team failed to insert IVs in 72-year-old Brandon Jones' arms. A physician then inserted an IV near his groin.

Doctors have also been involved in executions indirectly. Dr. Mark Dershwitz, a professor of anesthesiology at the University of Massachusetts Medical School, provided testimony in support of using a controversial drug combination for the execution of Dennis McGuire in Ohio. Dershwitz has testified in support of lethal injection protocols for 22 states and the federal government. McGuire's execution took 26 minutes, and according to witnesses he struggled and gasped for air. Months after that execution, Dershwitz announced he would be getting out of the testifying business.

In spite of the injunction to "first do no harm," some doctors help maintain the contemporary US death penalty regime directly and indirectly, and they have the support of a few doctors and lawyers who have argued that doctors should be present at executions in order to avoid needless pain and suffering.

Deborah Denno, professor of law at Fordham University and lethal injection expert, told Truthout that there should be more attention paid to the role medical professionals play in executions. "I think generally people are looking more at secrecy and drug acquisition. The Supreme Court hasn't really looked at medical professionals. But they've always been involved. They've always been there and it's ongoing."

Denno noted that doctors who do participate are not always the best of the best -- in part because the pay is low and many of these doctors have had little success elsewhere. "And then we often only find out there are doctors present when there's a problem," she said.

A Moral Slippery Slope

That photo of Romell Broom's mutilated arms, widely available online, was taken by Dr. Jonathan Groner, a pediatric surgeon at Nationwide Children's Hospital in Columbus, Ohio. Groner was asked by Broom's attorney to examine him shortly after the attempted execution.

Groner's visit to examine Broom was also his 1st visit to a prison.

"It's an otherworldly experience to be there. Everything about the institution discourages conversation," he told Truthout. "Broom was basically in a cage, and I said to the guards, 'I need to see him; I can't just look at him in this cage.' He didn't look particularly threatening to me."

The guards let him out but his wrists and ankles were shackled. They led him to a chair. Broom spoke little but would point things out to Groner -- a bruise here and there, a wound in a hard-to-reach spot. It had only been a few days and the "wounds were still fresh." He seemed shellshocked.

Groner noticed large bruises around puncture sites, suggesting the execution team worked hard to find usable veins. He added, "My assumption was that the people who did this were not people who do this often -- probably prison guards who have EMT training."

"When health care professionals use their skills to execute people, it blurs the lines between healing and killing."

After the execution the Ohio Department of Rehabilitation and Correction asserted that he had been an IV drug user, but according to Groner, Broom lacked the scars of hardcore drug abuse. "His veins looked decent to me. IV drug abusers have 'railroad tracks' on their arms from repeated injections up and down their veins. Broom had no scars. I couldn't tell why they'd had a hard time. He might have been dehydrated. Maybe a little nervous."

Groner emphasized that their inability to access a vein was evidence of their lack of skill, experience or training, arguing that an experienced medical professional would have been able to find a vein, even on a person experiencing tremendous anxiety preceding execution.

Groner wears a tightly trimmed goatee and black-rimmed glasses. His tone is fast and persistent -- he speaks in a staccato voice and barely moves his head or body. And yet he's warm and thoughtful. He said it was hard for him to work in a children's hospital at first, to take care of kids who were sick, while his own were young.

But he learned to deal with it -- though he stumbles still. Shortly after his father died, he had one such moment. The gasping sound of a mechanical ventilator assisting the breathing of a teenager dying after a car crash reminded him of his father's before he died. The sound association, the sound of the labored breathing, was too much. Groner broke down and sobbed in front of his peers. It was a sign of his empathy, the deep regard he has for the doctor-patient bond.

"People trust doctors because we don't use our powers to do bad things," he said, and that's the problem. "When health care professionals use their skills to execute people, it blurs the lines between healing and killing."

Groner opened a folder on his computer with images from various post-execution autopsies. One was of a central venous catheterization and the other something called a "cutdown." He explained that these are specialized procedures requiring skill, training and experience.

"What I remember most about Broom, about the experience, were his hands. They were smooth and soft," Groner said. And then he spoke of his father again. "You know, they reminded me of my father's at the end of his life."

"When I have to speak to families about end-of-life decisions, about all that I can really do is provide comfort. At the end of the day that's the only medicine I have. That's a doctor's role -- to provide comfort. Most patients would be willing to suffer to survive. But I don't accept that we're supposed to provide comfort at an execution. There's supposed to be a trust there and when our skills are used for the state's benefit, that's a moral slippery slope."

A Brief History of Doctors and the Death Penalty

Doctors have been involved with the death penalty since at least the 18th century, when, for example, a French surgeon named Antoine Louis proposed a device to make executions swift and, supposedly, humane. That device was ultimately named after a death penalty opponent, Dr. Joseph-Ignace Guillotin.

In 1866, an Irish doctor named Samuel Haughton proposed the use of a table of drops that accounted for a condemned person's height and weight in order to kill them more quickly.

"We do not see the inmate about to be executed as a 'patient' per se."

In an 1887 essay titled "Scientific Methods of Capital Punishment," a dentist in New York State named Julius Mount Bleyer proposed "the hypodermic injection of morphine." Bleyer suggested that any sheriff would be able to execute a condemned person with ease. He wrote, "The advantages of this method are its certainty, its painlessness, the freedom from the chance of horrible displays, the reduction of the dramatic element to a minimum, and its inexpensiveness."

In 1953, Great Britain's Royal Commission on Capital Punishment considered using lethal injection as an alternative method to hanging, but it concluded that no medical practitioner should be involved in such a process. As a result, the commission stuck with hanging.

Over 2 decades later, 2 medical professionals working in concert with two state legislators in Oklahoma concocted the first lethal injection protocol.

Jay Chapman (Oklahoma's chief medical examiner) and Stanley Deutsch (a faculty member of the University of Oklahoma College of Medicine), like Haughton and Bleyer before them, sought an effective and potentially painless way to kill people that could replace the electric chair and the gas chamber.

Their suggestion was to use a lethal cocktail of drugs. For many years, the most common drugs used were sodium thiopental or sodium pentothal (to induce sleep), pancuronium bromide (to stop breathing) and potassium chloride (to stop the heart). In Texas in 1982, Charles Brooks Jr. was the first to be executed by lethal injection.

Since 1980, the American Medical Association (AMA) has prohibited medical doctors from participating in executions, though doctors can prescribe sedatives prior to execution and sign death certificates. The AMA language is necessarily broad:

Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prison.

The AMA was part of a chorus of medical professionals condemning lethal injection. Susannah Sirkin of Physicians for Human Rights said in an interview that her organization quickly understood what was happening -- that states were using physicians to sanitize the process. "We wanted to give the lie to that notion," she said

From its inception in 1986, Physicians for Human Rights has worked to expose and end situations where health professionals violate human rights -- in particular, doctor involvement in torture or cruel and unusual punishment. "Of course," Sirkin said, "the history of this goes back to Nuremberg and the Nazi doctors and the concept of doing no harm."

In 1994, Sirkin helped pen "Breach of Trust," a report that documented the roles that medical professionals play in executions. The report concluded, "State medical boards, which are responsible for licensure and discipline, should define physician participation as unethical conduct, and take appropriate action against physicians who violate ethical standards."

Furthermore, the report claimed, "Laws should not be enacted that facilitate violations of medical ethical standards (such as anonymity clauses)."

And yet, that's exactly what has happened.

"There's a reason that there's anonymity," Sirkin said. "It underscores the fact that states know this is wrong, almost an admission that it's a violation of ethics and you can't go after them. And it shows that the only way to recruit them is to shield them."

One of the issues facing medical professionals, though, is that the declarations of their professional organizations have no teeth. The best they can do is censure or revoke membership. This is clear when looking at the efforts of physicians to put a stop to other physicians participating in executions.

In a June 18, 2014, opinion piece for the Journal of the American Medical Association, three doctors from Harvard Medical School argued that protecting physicians who participate in executions is essentially an attempt by states to de-professionalize medical professionals.

One of the authors, Dr. Robert D. Truog, professor of medical ethics, anesthesiology and pediatrics and director of the Center for Bioethics at Harvard Medical School, wrote in an email exchange with Truthout that legislative attempts to de-professionalize doctors continue. The best-case scenario, Truog said, would be for medical boards to revoke the certification of doctors who participate in executions. The American Board of Anesthesiology has adopted such a policy. "In this case, the physician would not lose his/her license, but would be barred from practicing in any hospital that requires its physicians to be board certified in their specialty in order to have privileges on the hospital staff (which is most hospitals)."

But courts have asserted that licensing boards can't discipline medical professionals who participate in lethal injection. When the North Carolina Medical Board attempted to do so, the State Supreme Court prohibited it. Some states are trying to pre-empt boards from such actions. Ohio's death penalty secrecy law, HB 663, says that a licensing authority can't sanction a medical professional participating in an execution.

Health Care's Darkest Corner

An overwhelming majority of medical professionals and their attendant associations have made it clear that lethal injection executions are not the place for physicians and allied health professionals. However, there are exceptions, and death penalty states are doing their best to encourage and shield these rogues.

Jen Moreno, an attorney with the Berkeley School of Law Death Penalty Clinic, told Truthout, "Every state that carries out executions requires the participation of medical personnel of some type. Some states specifically require a physician to perform some tasks; others list different categories -- doctors, nurses, phlebotomist, EMT, paramedics, military corpsman -- that corrections officials can choose from."

There are many tasks that blur the lines between the practice of medicine and the practice of capital punishment.

Prior to executions, a condemned person typically receives a medical exam to assess their veins and a psychiatric evaluation to assess whether or not they are competent to be executed. The execution drugs are mixed by a pharmacist. And medical professionals set IVs, administer drugs, check consciousness and declare death.

Thus, many organizations that accredit medical professionals have told their members not to participate in lethal injection executions. In addition to the American Medical Association, the National Association of Emergency Medical Technicians, American Nurses Association, American Board of Anesthesiology and American Pharmacists Association have all asserted that participating in lethal injections contradicts medical ethics.

Because they lack any national representative organization, phlebotomists (medical technicians who draw blood) have not taken a similar stance. This is significant because state protocols in Florida, Texas and Ohio allow for phlebotomists to be members of the execution team.

Moreno said that it's likely that states added phlebotomists to the list of those who can participate after the US Supreme Court's 2008 Baze v. Rees decision, which upheld the constitutionality of lethal injection. Chief Justice John Roberts' opinion notes that Kentucky's execution team includes a "certified phlebotomist" with years of experience. In other words, a phlebotomist who is trained and has taken an accredited course in phlebotomy.

But not all phlebotomists are certified, nor do they all have significant experience. In Oklahoma, according to the Tulsa World, phlebotomists are not trained to insert IVs, and yet one was involved in the attempted execution of Clayton Lockett. There was also a phlebotomist on the team that attempted to insert an IV in order to execute Romell Broom.

Florida's execution protocol permits phlebotomists on its execution teams for "achieving and monitoring peripheral venous access" -- which could mean inserting an IV. The state says these phlebotomists must be certified by the American Society for Clinical Pathology, National Certification Agency for Medical Laboratory Personnel, American Society of Phlebotomy Technicians or American Medical Technologists.

But it's not clear how phlebotomists actually participate. Alberto C. Moscoso, press secretary for the Florida Department of Corrections, told Truthout that "we can't elaborate on team member duties as, due to the security concerns and sensitivity of assignments surrounding death row, the details of staff responsibilities during the execution process are restricted from release."

When contacted by Truthout, an employee at the American Society of Phlebotomy Technicians indicated that the society was not aware that it was on Florida's list. Nor does the organization have a specific policy on participating in lethal injection executions. IV insertion, the employee said, is a separate certification and phlebotomists do not typically conduct IV insertions.

A spokesperson for American Medical Technologists told Truthout via email, "The detailed exam blueprint for AMT's Registered Phlebotomy Technician exam does not include any tasks that would appear to encompass inserting an intravenous catheter for purposes of administering fluids, as opposed to drawing blood."

Dennis Ernst, director of the Center for Phlebotomy Education, a nationally recognized expert on the profession, said that this is complicated territory. "There's nothing in any state that restricts phlebotomist from starting an IV. But as far as I know, no state allows them [to] start meds. And no legitimate organization would certify for putting in meds."

In one scenario, Ernst said he could imagine a phlebotomist inserting an IV, and someone else could start the medication.

Ernst said that the extent of phlebotomist participation in lethal injection executions is news to him. "Phlebotomy is not very regulated," he said, adding that he has been working most of his life to point this out. "Phlebotomists need to have regulation or oversight. Only four states require certification: California, Louisiana, Nevada and Washington. Phlebotomists have no scope of practice, and there is no professional organization representing them. Phlebotomy is one of health care's darkest corners; its best-kept secret."

This assertion was underscored when Truthout asked American Medical Technologists if phlebotomists are governed by the principle of "do no harm." A spokesperson said via email, "There is nothing in AMT's Standards of Practice that equates to a 'do no harm' mandate, although the Standards do require that 'The AMT professional shall place the health and welfare of the patient above all else.' We do not, however, read that as prohibiting a member from participating in a state-sponsored execution. For instance, we do not see the inmate about to be executed as a 'patient' per se."

Now some states are proposing old methods, like the firing squad or the electric chair, as backups to lethal injection. And other states are exploring new means to execute people -- for example, Oklahoma is considering using nitrogen gas. In other words, states are inventing new ways of killing that may exclude medical professionals.

But in some ways, they have already moved in that direction.

"Hippocratic Paradox"

Dr. Jonathan Groner said that he was always a death penalty agnostic, until a series of encounters turned him into an abolitionist. The first came when, at the end of his residency, he testified in the capital trial of Jerry Lee Allard. Allard had killed his wife and child and very nearly his other child, but Groner, as a young trauma surgeon, was able to help save that child's life.

Testifying at the trial made Groner uneasy. He said Allard was sentenced to death and sent to prison, but "he got cancer and died. Never got the ultimate punishment, but he did, in a way."

Later Groner read about the 1997 triple execution of Earl Van Denton, Paul Ruiz and Kirt Wainwright in Arkansas (the state held another triple execution three years earlier). Groner said that as a Jewish kid who had studied the Holocaust while growing up, the story about Arkansas resonated.

"The way they described IV insertion -- they had medicalized the process just like the Nazis," he said. Groner was incensed by this diffusion of responsibility.

"When I read [Robert Jay] Lifton's The Nazi Doctors, I learned that they used direct cardiac injections of phenol to kill prisoners in the T-4 euthanasia program," he said. "Some states are now using central venous catheters for executions, so they are getting pretty close to the same thing."

Groner was clear that he's not comparing the death penalty to the Holocaust; he's pointing to doctors who crossed boundaries. For over a decade now, Groner has been persistent in his public critique of the medicalization of the death penalty and the troubling links to this history.

"There are certain times throughout history where medicalization has been used to justify things that are inhumane," he said. "Waterboarding -- they had a doctor present. First electrocution -- there were several doctors present. But doctors have an esteemed position in society and because of that we can do things that others can't. There are times when I perform major surgery -- literally cut an infant open -- to deal with a life-threatening issue such as a bowel obstruction. Why does a family who has never met me before allow me to do that to their child? Because people trust us. In exchange for that, we can never use our powers to cause harm."

Source: truth-out.org, Jack Shuler, May 17, 2016. Jack Shuler is author of three books, including The Thirteenth Turn: A History of the Noose (PublicAffairs, 2014). His writing has appeared in Truthout, Salon, The Atlantic and Los Angeles Times, among others.

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