The North Carolina Supreme Court issued its ruling in North Carolina Department of Corrections v. North Carolina Medical Board on Friday. At issue is physician participation in lethal injection executions. The dispute between the two state agencies has resulted in a moratorium on executions in North Carolina.
"Doctors can take part in executions," is Sarah Ovaska's report for the Raleigh News & Observer. It appeared in the Saturday edition.
The 4-3 decision was one of several legal challenges that have led to North Carolina's de facto moratorium on execution by lethal injection for more than two years.
The N.C. Department of Correction sued the medical board, after Central Prison's warden couldn't find physicians willing to risk disciplinary action in order to monitor executions. The board licenses and disciplines doctors, and it had taken the position that participation in executions violates a doctor's core ethical duty to preserve life.
But Friday's decision doesn't mean executions will resume immediately. Several other legal issues are pending.
Dr. Charles van der Horst, an infectious diseases doctor and associate professor at UNC-Chapel Hill's School of Medicine, has been a vocal critic of an execution protocol that requires a doctor to monitor essential life functions during lethal injections. He said Friday that the obligation laid out in a doctor's Hippocratic Oath to "above all, do no harm" trump any court decision.
"If the state wants to uphold the death penalty, fine," van der Horst said. "They can take a pistol and shoot the guy. But to have doctors make it clean for them is just the lowest of the low."
N.C. Correction Secretary Alvin Keller declined to comment about the court's ruling.
The justices decided that Wake Superior Court Judge Donald Stephens correctly sided with the N.C. Department of Correction when he ruled in September 2007 that the N.C. Medical Board didn't have the authority to prevent doctors from participating in executions. The board had appealed Stephens' ruling.
State law calls for doctors to be at executions, something the N.C. Medical Board doesn't oppose, said Todd Brosius and Thomas Mansfield, attorneys for the board.
But the board argued that ethics rules don't allow doctors to participate by monitoring vital signs, a requirement of an execution protocol approved in February 2007 by the N.C. Council of State, a group of statewide elected officials.
Executions in North Carolina are administered in a death chamber in Raleigh's Central Prison. A lethal injection consisting of three drugs is given to an inmate to sedate, paralyze and kill. The person actually administering the lethal injection wouldn't have to be a doctor: nurses, emergency medical technicians and physician assistants could.
The protocol requires a doctor to monitor a condemned inmate's "essential body functions" and tell the warden if the inmate shows signs of suffering.
The medical board, Justice Edward Thomas Brady wrote in the majority opinion, "may not discipline or threaten discipline against its licensees solely for participating in execution alone."
Justices Robert Edmunds Jr., Mark Martin and Paul Newby sided with Brady.
The three justices who dissented, Chief Justice Sarah Parker and justices Robin Hudson and Patricia Timmons-Goodson, argued that the state legislature should ultimately decide whether the medical board can discipline doctors regarding executions.
The initial AP report is, "N.C. high court ruling could mean restart to executions," via the Wilmington Star-News. Estes Thompson was the writer.
The Supreme Court’s ruling upheld a lower court ruling and could result in a resumption of executions in North Carolina, which have been on hold for more than two years.
Medical Board spokeswoman Jean Fisher Brinkly said simply, “We were not successful.” A spokesman for the Department of Correction had no immediate comment.
Lawyers for the state argued that a doctor should monitor an execution to prevent cruel or unusual punishment. But the medical board and the American Medical Association said state lawmakers wanted a doctor to be present but not actively participate.
The court ruled 4-3 that state law “by its plain language, envisions physician participation in executions in some professional capacity.”
The ruling also said the Medical Board ethics position statement “directly contravenes the specific requirement of physician presence. ... because the position statement is an invalid exercise of defendant’s statutory powers, we affirm the decision of the trial court.”
Three justices, including Chief Justice Sara Parker, said in a joint dissent that the matter should be decided by the Legislature. The Legislature gave the Medical Board authority to discipline physicians and the ethics policy is in line with that authority, the dissent said.
The dissenters also said the ethics policy doesn’t prohibit a physician from being present and says the board won’t impose discipline “for merely being present during an execution.”
The halt in executions stems from a 2006 challenge to the use of lethal injection, a method of execution opponents argued is cruel and unusual. A federal judge later said the state must monitor the condemned for signs of pain, and in an attempt to comply, North Carolina altered its procedure for putting an inmate to death.
Dan Galindo writes, "Justices overrule medical board," for the Winston-Salem Journal.
"This is not a decision that starts the execution machinery again immediately," said Mark Kleinschmidt, the executive director of the Fair Trial Initiative in Durham, which works to improve the system of lawyers who represent poor defendants in death-penalty cases.
"It's hard to pin it down to a specific timeline, but it's going to take some time for courts to resolve these separate issues," Kleinschmidt said.
There hasn't been an execution in the state since Samuel Flippen of Forsyth County died by lethal injection in August 2006 for killing his 2-year-old stepdaughter. At present, 163 people are on the state's death row.
In yesterday's decision, the seven justices were deciding an appeal by the medical board of an October 2007 decision in Wake Superior Court.
Writing for the majority, Justice Edward Thomas Brady wrote that allowing the board to discipline its doctors for participating in executions would elevate the board over the General Assembly.
Among the issues in the case is what a state law means when it requires a doctor to be "present" at the execution.
Simply being there does not violate medical ethics, according to the medical board, which said in January 2007 that monitoring the inmate's pain or giving directions about how to carry out the execution would be ethical violations.
Brady wrote that "common sense" says that legislators intended doctors to do more than just be present at an execution.
A clergy member, an attorney and the warden are all at an execution in professional roles, so it's illogical to say that a doctor was not intended to have a duty there as well, Brady said.
Justice Robin E. Hudson dissented, arguing that it wasn't the court's proper role to decide the issue. She was joined by Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson.
"Court ruling removes execution barrier," is by Paul Woolverton for the Fayetteville Observer.
One of those questions was whether a doctor could take part. State law says a doctor has to be present; at issue is what the doctor does while there.
A federal court ruling says a doctor must take part in the process, which in North Carolina is carried out by lethal injection. The physician monitors medical equipment and advises prison officials on whether the condemned person is conscious or in pain.
The physician is required to ensure that the execution complies with the U.S. Constitution’s provision against cruel and unusual punishment.
The state Medical Board in January 2007 said doctors can be present, but they would compromise medical ethics — and thus jeopardize their medical licenses — by taking part in putting someone to death.
Faced with the threat against their licenses, doctors refused to participate and the Department of Correction couldn’t carry out any executions.
The department sued the state Medical Board, an entity created by the state legislature.
The board wasn’t trying to interfere with executions, said its lawyer, Thomas Mansfield. “Physician participation in executions is in fact unethical, and the board’s efforts have been to enforce the ethics of the profession,” he said.
The Medical Board is still reviewing the ruling to decide what it will do next, Mansfield said. He did not know whether the board would attempt to move the case to federal court.
Corey Friedman writes, "State can't discipline doctors for participating in executions, Supreme Court rules," for the Gaston Gazette.
The court affirmed an October 2007 ruling by the N.C. Court of Appeals that found the medical board had exceeded its authority. Justices Edward Thomas Brady, Mark Martin, Bob Edmunds and Paul M. Newby ruled in favor of the Department of Correction, while Patricia Timmons-Goodson, Sarah Parker and Robin E. Hudson dissented from the ruling.
In January 2007, the medical board adopted a position statement banning licensed doctors from any participation in executions other than being present and certifying the inmate's death. Doctors feared disciplinary action and stopped attending executions, resulting in what the court termed a "de facto moratorium" because state law requires a surgeon or physician to be present.
Hudson wrote in her dissent that reconciling the state statute and medical board's position statement, which are not inherently in conflict, is a job for the General Assembly, not the courts.
"By issuing its Position Statement, defendant has neither prevented plaintiffs from conducting an execution nor prohibited a physician from being present at - or even participating in - such an execution," Hudson wrote. Timmons-Goodson and Parker joined her dissent.
Executions aren't expected to resume immediately due to another pending case, a legal challenge to revised lethal injection protocols that require a doctor to be present to ensure an inmate doesn't suffer.
The death penalty has been on hold for more than two years as courts untangle procedural challenges.
Earlier coverage of the North Carolina litigation is here. More related stories are in StandDown's lethal injection category index.
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