Last month, Missouri became the latest battlefield in an escalating war between doctors and state correction officials. At stake is the future of doctors' participation in at least one form of capital punishment-death by lethal injection. Also at stake, perhaps, is the future of lethal injection itself. (Missouri is one of 37 states to use it as the primary method of execution.)
The Missouri fight grows out of a death row inmate's suit charging that the state's protocol for lethal injection constituted cruel or unusual punishment. The suit ended up in the federal court of Judge Fernando J. Gaitan, Jr., who initially ruled against the plaintiff. After the plaintiff appealed to a higher court and submitted new evidence-including inconsistencies in the way Missouri's doctor, a general surgeon, mixed the anesthetizing agent during the lethal injection process-the case was thrown back to Gaitan, who amended his decision.
Determining that the state's flawed protocol could cause condemned inmates to suffer unnecessarily, he ordered the state to revise it. Among other things, he called for a board-certified anesthesiologist to mix the drugs and either administer them or "directly observe those individuals who do so." Pending approval of the protocol, Judge Gaitan put all state executions on hold.
State officials said they weren't surprised by the physician response. The AMA has explicitly condemned physician participation in legally authorized executions, including death by lethal injection. And just four days after Judge Gaitan issued his order, the President of the American Society of Anesthesiologists, Orin F. Guidry, urged his members to "steer clear."
Anticipating that some might construe this advice as a de facto condemnation of capital punishment, Guidry added: "American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection. The fact that problems are surfacing is not our dilemma. The legal system has painted itself into this corner and it is not our obligation to get it out."
In an interview with Medical Economics, Guidry wouldn't elaborate further, although he acknowledged that he "was pleased that no anesthesiologist volunteered."
In June, in a case involving a Florida inmate, the US Supreme Court made it easier for condemned prisoners to challenge states' lethal injection protocols. With more than 3,300 inmates now on death row, that ruling is almost certain to yield more cases like Missouri's.
Meanwhile, Judge Gaitan has rejected the state's request that it be permitted to use an alternative protocol-one that would employ other medical personnel to prepare the lethal cocktail, insert the IV lines, and monitor the patient. At press time, the state was appealing Gaitan's original order that the lethal injection procedure be revised.
If the appeal succeeds, Missouri would still need to find cooperative medical professionals to carry out its executions. If these professionals start thinking as the anesthesiologists do, even the state's alternative protocol may have few if any takers.