Doctors debate judge's stance

A ruling that medical board overstepped its authority on executions stirs an exchange in the medical community

Some doctors say they, not a judge, should decide what is medical treatment and what role physicians should play at executions.

The N.C. Medical Board, meeting this week in Raleigh, could decide as soon as Friday whether it will appeal a judge's ruling in a lawsuit over the role doctors play in executions, an attorney for the board said.

In a ruling last month, Superior Court Judge Donald Stephens said that an execution is not a "medical event" and ruled that the medical board had overstepped its authority when it adopted an ethics policy that prohibited doctors from participating.

Dr. Arthur Finn, a professor emeritus at UNC-Chapel Hill's School of Medicine, said that doctors' participation in executions is unethical and that the language in Stephens' ruling puts the board in a position where it should appeal to maintain some sense of autonomy.

"Once a judge starts ruling medically, you just never know where it's going to go," Finn said. "You just can't let one person without total, adequate information make decisions like that."

Dr. Ross McKinney, director of the Trent Center for Bioethics, Humanities and History of Medicine at Duke University, said the battle over the board's authority is yet another unfortunate entanglement between the law and medicine.

Doctors and medical boards have long had to make careful decisions about what battles to fight. McKinney cited clashes over abortion rights and insurance as examples of contentious issues between law and medicine.

"I think they will be weighing the cost of taking it to court versus the impact on the profession," McKinney said.

Dr. Charles van der Horst, a professor of medicine and infectious diseases at UNC-CH, disagrees with Stephens' ruling and wants the medical board to appeal.

"I think people are worried because this could be a slippery slope," van der Horst said. "First they rule that this isn't a medical procedure. What are they going to do next?"

In a letter to the medical board after the ruling, van der Horst urged the medical board to stand firm and defend its principles.

"We are required to provide care to those in front of us without regard to race, religion, past behavior, gender, insurance status, and a whole litany of characteristics," he wrote. "This has become increasingly difficult as insurers, attorneys, and others tell us what we can and can not do.

"But at all times we should at least aim for the moral high ground. When we make life easier for those who try to change us by caving in to their demands prematurely, we compromise our ethics and give up some of our humanity."

Stephens made his ruling in a lawsuit filed by the Department of Correction against the medical board. The board's ethics policy made it impossible for correction officials to find a doctor to attend scheduled executions.

Judge: law first

Stephens said the board overstepped its authority in its policy and cannot trump state law, which requires the presence of a doctor. His ruling also said an execution is not a "medical event" and therefore doesn't fall under the oath.

At the same time, though, Stephens said the law requires doctors to participate because of their medical expertise.

Van der Horst disputed the finding that an execution is not a medical procedure.

"While I have the utmost respect for Judge Stephens' legal abilities he is not a physician and consequently not the proper person to determine what a medical procedure is," van der Horst said in his letter to the board.

He argued that executions are medical procedures and bolstered his argument by citing the medical terminology used to describe the procedure as well as the equipment used, including injections, EKG machines and brain monitors.