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North Carolina Execution Laws Trump Medical Board’s Ethics Declaration

North Carolina Execution Laws Trump Medical Board's Ethics Declaration

by John E. Dannenberg

In September 2007, the Wake County, North Carolina Superior Court ruled that because executions are not "medical procedures," a state law that requires a physician to attend executions was not trumped by another state statute that sets forth professional conduct requirements for doctors.

The North Carolina Medical Board (Board) had issued a Position Statement on capital punishment that prohibited a doctor's professional participation in state executions. The Board ruled that taking part in executions was "a departure from the ethics of the medical profession"; it was the only such position taken by a regulatory medical board in the United States.

In response, the North Carolina Department of Correction (NCDOC) sought declaratory and injunctive relief, asking the superior court to find the state?s statute requiring such participation superior to the law related to the regulation of physicians? ethics.

The court first recognized N.C. Gen. Stat. § 15-188 (2005) [the NCDOC shall provide "the necessary appliances for the infliction of the punishment of death and qualified personnel" to perform those tasks required to carry out the sentence of death]; § 15-190 (2005) [the "surgeon or physician" of the prison shall be present during every execution]; and §15-192 [the surgeon or physician shall certify the fact of the execution].

The court then noted § 90-2 (2005), which "regulate[s] the practice of medicine and surgery for the benefit and protection of the people of North Carolina," a provision dating from 1858. Finally, the court recognized § 90-14(a)(6) (2005), which empowers the Board to "deny, annul, suspend or revoke a license" issued by the Board ... for certain reasons, including ?unprofessional conduct or departure from the ethics of the medical profession.?

The superior court accepted the statute requiring physician involvement in certifying the death of an executed prisoner as being proper for a physician. It distinguished the Board's Position Statement which prohibited a doctor?s participation in (1) monitoring the prisoner?s bodily functions, (2) observing the monitoring equipment, (3) providing professional expertise and medical advice and (4) notifying the Warden of any problems during the procedure.

In its conclusions of law, the court held that the Medical Practices Act of 1858 was not intended to give the Board authority to prohibit doctors from performing the tasks later enacted in the execution-related statutes. "Although the current effort by the Board [to prohibit doctors' participation in executions] ... may well be viewed as humane and noble, such a decision rests entirely with ... the North Carolina General Assembly."

Accordingly, the court granted preliminary and permanent injunctive relief prohibiting the Board from enforcing its Position Statement ? and, importantly, declared that a judicial execution is neither a medical event or procedure, and is thus outside the scope of the state?s medical statutes.

The effect of this ruling may spur the state legislature to reconsider its present capital punishment procedures, or even join a growing national tide that disfavors the death penalty. See: North Carolina Department of Correction v. North Carolina Medical Board, Wake County Superior Court, Case No. 07-CVS357a [ruling posted on PLN?s website].

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Related legal case

North Carolina Department of Correction v. North Carolina Medical Board