THE ROLE OF STATE MEDICAL BOARDS IN REGULATING
PHYSICIAN PARTICIPATION IN EXECUTIONS

Ty Alper

ABSTRACT
The recent increase in calls for physician participation in
lethal injection executions is likely to place a spotlight on
state medical boards, the only entities empowered to discipline doctors for ethical violations. This article begins
by recounting the history of physician participation in
lethal injection executions, as well as the opposition of
most medical professional organizations to the practice.
The current state of the law suggests, however, that the
role of state medical boards is quite circumscribed, at
least in the majority of states with death penalty statutes
that appear to contemplate some level of physician participation in executions. In order to further determine
the legality of medical board action, a comprehensive
study was conducted of the statutes and regulations governing state medical boards in all 50 states. The study
reveals that only a handful of states – and only seven
death-penalty states – explicitly incorporate the AMA’s
ethical guidelines into their own state ethical codes. The
study concludes by suggesting that, where doctors who
participate in executions are doing so in order to relieve
pain and suffering, it is not clear that a state medical
board should intervene even in the rare instance when it
would be legally possible to do so.
INTRODUCTION

In recent years, two related phenomena have contributed
to the growing debate about physician participation in
executions in the United States. First, legal challenges to
states’ lethal injection practices have raised serious questions about the qualifications of execution team members
to perform lethal injections using medical equipment and
dangerous controlled substances. Second, a series of highprofile botched executions and one botched execution attempt have further exposed lethal injections as far more
problematic and prone to error than most people had previously assumed them to be. These phenomena have con-

tributed to an increased call for the involvement in executions of trained medical professionals, namely physicians.
Indeed, lawyers for death row inmates routinely argue that
skilled anesthetic-monitoring is an essential component of
a constitutional three-drug execution protocol, particularly where one of the three drugs is a neuromuscular blocking agent that paralyzes the condemned inmate during the
execution. Doctors are also necessary when peripheral venous access is too difficult to achieve; gaining intravenous
access through a central line in most instances requires
a physician. Many states do employ doctors in various
capacities, though few, if any, rely on doctors to perform
the kind of anesthetic monitoring requested by lawyers for
death row inmates. Other states, however, resist calls for
physician participation, claiming that doctors are unable
to participate and any court order that they do so will lead
to a de facto moratorium on the death penalty.
State medical boards find themselves in the middle of this
political and legal debate, yet the boards have thus far favored a decidedly hands-off approach. The vast majority
have declined to take an explicit public position on the
right of doctors to participate in executions and few, if any,
have seriously investigated complaints of physician participation that have been brought to their attention.
Recent events, however, suggest that calls for medical
board action may increase. Earlier this year, for example, a
national abolitionist organization founded by Sister Helen
Prejean launched a campaign to persuade medical licensing boards in each state to declare it unethical for doctors
to participate in executions. The stated goal of the campaign is to “make it impossible for states to carry out their
own protocols for capital punishment.”1
As calls for medical board involvement increase, the need

page 16 journal of medical licensure and discipline vol 95 number 3 2009

for legal clarity on the medical boards’ role is apparent.
This article begins by recounting the history of physician
participation in lethal injection executions, as well as the
opposition of most medical professional organizations to
the practice. The ethical guidelines of those membership
organizations, however, are not themselves enforceable.
Only the state medical boards have the power to discipline
doctors for alleged ethical violations. The article next studies the current legal landscape with respect to the role of
state medical boards in disciplining doctors who participate in executions. The current state of the law suggests
that, in most instances, the role of state medical boards is
quite circumscribed, at least in the majority of states with
death penalty statutes that appear to contemplate some
level of physician participation in executions. In those
states, courts are likely to conclude that the medical board
does not have legal authority to discipline doctors who participate in lawful, state-sanctioned executions. Moreover,
a comprehensive study of the statutes and regulations governing state medical boards in all 50 states reveals that only
a handful of states – and only seven death-penalty states
– explicitly incorporate the AMA’s ethical guidelines into
their own state ethical codes. Finally, despite the positions
of most national medical associations, there are compelling reasons for medical boards to refrain from intervening
in this debate. Where doctors who participate in executions are doing so in order to relieve pain and suffering,
it is not clear that a state medical board should intervene
even in the rare instance when it would be legally possible
to do so.
BACKGROUND

States that employ lethal injection typically use a threedrug formula to carry out executions. The first drug in the
formula is intended to anesthetize the inmate; the second
one paralyzes the inmate; and the third drug stops the inmate’s heart, killing him or her.2 One primary legal challenge to this method rests on the allegation that most states
do not employ adequate safeguards to ensure that the person being executed is properly anesthetized before the second and third drugs are administered.3 Because the second
drug in the three-drug formula paralyzes the inmate, the
concern is that an inadequately anesthetized person “may
have the sensation of paralysis without anesthesia . . . and
may feel the burning of the highly concentrated” third
drug, potassium chloride.4 In such a state, the paralyzed
inmate is unable to indicate to correctional staff that he or
she is experiencing the suffocating effects of the paralyzing
drug and the excruciatingly painful effects of the potassium chloride.5

States generally do not dispute that an un-anesthetized execution – using these particular drugs – would constitute
cruel and unusual punishment under the Eighth Amendment.6 Lawyers defending states’ lethal injection procedures do dispute, however, how likely it is that the delivery
of the first drug, the anesthetic, will somehow go awry, and
this is typically where the question of the participation of
medical professionals enters the equation.
Lawyers for death row inmates have generally taken the
position that, given the degree of skill needed to adequately deliver, monitor, and maintain anesthesia, as well as the
widely publicized problems with the administration of anesthesia in the lethal injection setting, states that insist on
using the three-drug formula must employ the services of
highly-trained medical personnel – often, but not always,
doctors – in order to ensure that the risk of severe pain to
the person being executed does not become “substantial.”7
If the states do not want to employ medical professionals,
the argument goes, they should switch to a different protocol for lethal injections that would not require skilled anesthetic monitoring.8 However, as long as states insist on the
three-drug formula, the litigation position taken by lawyers
for death row inmates is that only the supervision of qualified medical personnel can reduce the risk of severe pain
to a constitutional level.9
Lawyers representing states and defending the lethal injection status quo, however, have resisted mandated physician participation on the grounds that doctors are unable
to participate. “The goal of death penalty opponents,”
claimed a spokesman for the California Attorney General
in 2006, “is to get a court order that says that lethal injections can only be administered by licensed professionals,
because the ethics of medical professionals prohibit them
from participating.”10
The argument that a physician participation requirement
would lead to abolition of the death penalty has surface
appeal because several national medical associations have
expressed their belief that physicians should not participate in executions. The American Medical Association
(AMA) has, since 1980, declared the participation of doctors in executions to be a clear violation of medical ethics. The AMA’s policy, last updated in 2005, defines “participation” broadly, to include even “consulting with or
supervising lethal injection personnel.”11 The American
Society of Anesthesiologists (ASA) adopted the AMA position, and its then-president advised members to “steer
clear” of participation in lethal injections.12 The So-

journal of medical licensure and discipline vol 95 number 3 2009 page 17

ciety of Correctional Physicians has for years dictated that
the “correctional health professional shall . . . not be involved in any aspect of execution of the death penalty.”13
The media has well documented the positions of these
national organizations.14
The AMA’s position on physician participation is not, however, legally enforceable. As a membership organization,
the most the AMA could do to discipline a doctor for violating the AMA’s ethical guidelines is revoke that doctor’s
membership, which would have no effect on his or her
ability to practice. Indeed, only about 20 percent of doctors in the United States are even members of the association, and, according to the AMA’s chief executive officer,
“[t]he other 80 percent either do not understand what we
do, or they do not value what we do.” 15

cause of state laws that shield the identities of doctors and
restrict public access to lethal injection protocols.20 As a result of these laws, it is very likely that doctors participate in
executions to a far greater extent than is currently known.
However, in addition to the anonymous participating doctors interviewed for a New England Journal of Medicine
article in 2006,21 recent litigation challenging lethal injection has illuminated the extent of physician participation
in certain states.

The agencies that do have disciplinary authority over physicians are the state medical boards, which award licenses
to practice medicine. The study next examines the capacity
of the medical boards to discipline doctors for participating in
lethal injection executions, beginning with a brief history.

In Maryland, for example, nursing assistants and paramedics conduct the executions, although a doctor is present,
monitors an EKG machine, and pronounces death, all
in violation of the AMA guidelines.22 In Georgia, a doctor supervises executions, and orders the injection of additional chemicals when deemed necessary; during one
execution, the doctor inserted a central line when nurses
were unable to find a suitable vein.23 In Oklahoma, a licensed physician is present in the execution chamber,
monitoring the inmate’s level of consciousness “by whatever means he deems appropriate.”24 In California, doctors have been present in each of the state’s eleven lethal
injection executions, monitoring heart rate and respiration.25 In Missouri and Arizona, prison officials recently
announced that they have found new doctors to oversee
the procedures in those states.26 And at least two doctors,
including regular states’ expert Dr. Mark Dershwitz, have
assisted states such as Ohio and Tennessee in the development of new lethal injection protocols, including advising on how the drugs work and recommending specific
changes to the protocol.27 

I. LEGAL AUTHORITY OF MEDICAL BOARDS
TO DISCIPLINE DOCTORS WHO PARTICIPATE

HISTORY OF ACTIVISM AGAINST PHYSICIAN
PARTICIPATION

The ethical guidelines of the state-based medical associations, many of which mirror those of the AMA,16 are similarly unenforceable. Although a doctor who participates in
an execution may violate the guidelines of his or her state
medical association, the most extreme sanction the doctor
faces is revocation of membership in the association. Such
a sanction would have no effect on a doctor’s ability to
practice in the state.

HISTORY OF PARTICIPATION

Doctors are routinely involved in executions in this country, and have been since states first started using lethal
injection almost three decades ago. In fact, doctors have
played a key role in the implementation of capital punishment since the eighteenth century, when Dr. Joseph Guillotine developed the machine that bore his name.17 Two
centuries later, it was a doctor who developed the lethal
injection procedure that all states but one currently use.18
And doctors continue to play an active role – a role specifically condemned by the AMA’s guidelines – in executions
in virtually every state.19
It is impossible to report a full accounting of the extent of
physician participation in lethal injection executions be-

Doctors, human rights groups, and abolitionist groups have
expressed strong positions against physician participation in
executions and taken direct action in an effort to deter such
participation. Amnesty International, for example, has long
sought to publicize the fact that physician participation violates the AMA’s ethical code. Two other leading abolitionist
organizations, the National Coalition to Abolish the Death
Penalty (NCADP), and Human Rights Watch, were two of
the four organizational authors of a 1994 report exposing the
extent of physician participation in executions. Although
the report did not take a position on the death penalty, it
did take a strong position against physician participation,
recommending, among other things, that “[s]tate medical
boards . . . should define physician participation as unethical conduct and take appropriate action against physicians
who violate ethical standards.”28

page 18 journal of medical licensure and discipline vol 95 number 3 2009

Other, less centralized, efforts have taken similar forms.
In Georgia, for example, a group of anti-death penalty
doctors, led by Dr. Arthur Zitrin, filed a complaint in
2005 against a doctor who had admitted participating in
several Georgia executions. The complaint was ultimately dismissed. Yet newspaper reports noted that it was part
of a “recent volley in a campaign to revoke the licenses
of doctors who participate in executions.”29 Indeed, the
previous year, four death penalty opponents (one lawyer,
two doctors, and a chaplain) filed a complaint with the
Kentucky Board of Medical Licensure against Governor
Ernie Fletcher. The complaint alleged that, because he is
a licensed physician, the governor could not sign a death
warrant for inmate Thomas Clyde Bowling without violating the AMA guidelines.30 Dr. Zitrin, also a vocal opponent of the death penalty, followed the complaint filing
by publishing an op-ed in the Los Angeles Times titled,
“Doctor, Reread Your Oath,” and arguing that Governor
Fletcher’s actions violated the AMA ethical guidelines.31
The Kentucky medical board ultimately dismissed the
complaint, ruling unanimously that although he was a
physician, Fletcher was acting in his role as governor, not
as a doctor, when he signed the warrant.32
STUDY OF STATE LAWS GOVERNING MEDICAL
BOARDS

The vast majority of state medical boards have taken no
position on the specific matter of participation in executions, and few have ever actually considered disciplining
a doctor for participating in executions.33 This is the case
despite the fact that, as discussed above, numerous doctors have participated in hundreds of executions in various capacities over the past three decades, and anti-death
penalty activists have filed complaints against specific
doctors with medical boards on several occasions. The
North Carolina Medical Board is the only example of a
state board expressing a public interest in disciplining a
doctor for participating in an execution; however, as discussed below, the North Carolina Supreme Court prohibited the board from imposing discipline on any doctors.34
In fact, no doctor in the United States has ever actually
been disciplined by a medical board for participation in a
lethal injection execution.35
In an effort to further determine the relevance of the
AMA guidelines in state ethical codes, a comprehensive study was conducted of the governing law in all 50
states.36 The study reveals that, as of 2009, only two death
penalty states, Ohio and Kentucky, have incorporated the
AMA ethical guidelines by statute into their state medical

ethical code. For example, Ohio’s statute provides that,
“to the extent permitted by law,” the board may “limit,
revoke, or suspend an individual’s certificate to practice”
for violating any provisions of the code of ethics of the
AMA.37 In another five death-penalty states – Maryland,
Mississippi, Nebraska, New Hampshire, and Tennessee –
the regulations adopted by medical boards explicitly reference the AMA in the local ethical codes. For example, the
Tennessee medical board fully adopts the AMA’s Code of
Medical Ethics as its own code of ethics, at least “to the
extent it does not conflict with state law.”38 Maryland regulations allow the medical board to “consider” the ethical
guidelines of the AMA, “but these principles are not binding on the Board.”39
In these few states, it is theoretically possible that a doctor
participating in an execution – and thereby violating the
AMA’s ethical guidelines – could be subject to medical
board sanction. But in the vast majority of death-penalty
states, a medical board would need to find that a doctor
had violated the “catch-all” provision of the state ethics
rules in order to impose discipline. Many states have such
provisions, allowing, for example, discipline for a “departure from or failure to conform to the standards of acceptable and prevailing practice of a profession or the ethics
of the profession.” It is highly unlikely that participation
in executions would fall within that broad language given
that, if anything, the prevailing practice with respect to
executions is to include the participation of physicians. In
any event, for the reasons discussed below, in those rare
instances where a medical board both has the colorable
authority to discipline and the desire to do so, it is far from
clear that courts will allow such action.
LEGALITY OF POSSIBLE MEDICAL BOARD
ACTION

With an anticipated increase in complaints to medical
boards, the question arises whether the boards can take action if they are so inclined.40 There are two reasons to question whether state medical boards have the authority to discipline participating doctors even if the governing ethical
statute or regulations appear to allow it. First, courts thus
far have refused to allow medical boards to impose discipline where, as in most states, the governing death penalty
statute contemplates physician involvement. Second, a
growing number of states are passing “shield laws” that explicitly remove medical board jurisdiction over this issue.
1. Governing Death Penalty Statutes
Courts in three states have addressed the question whether

journal of medical licensure and discipline vol 95 number 3 2009 page 19

medical boards have the authority to discipline doctors who
are participating in the administration of a lawful execution. All three have concluded that the boards do not have
the power to discipline doctors who are essentially carrying
out state law.
In 2005, Dr. Arthur Zitrin filed a claim with the Georgia
Composite State Board of Medical Examiners, seeking
an investigation into whether doctors who participated in
Georgia’s lethal injections were subject to discipline for
violating the AMA’s ethical guidelines. The board refused
to open an investigation. Dr. Zitrin and several other doctors sued in state court, seeking a declaration that Georgia law prohibits physician participation in executions and
requiring the Board to open an investigation. The doctors
did not receive a warm welcome in court. According to a
report in the Atlanta Journal-Constitution, the trial judge to
whom the case was assigned noted during one hearing that
“the AMA is simply a membership organization” and asked
counsel for Dr. Zitrin, “How many Georgia physicians belong to the AMA? I’d say less than half. And you want to
incorporate an ethical opinion of the AMA into Georgia
law?”41 The judge ruled against the doctors, finding that
they had failed to state a claim. The Georgia Court of Appeals affirmed, noting that the medical board’s position in
the matter “guarantees that no physician [in Georgia] will
be subject to disciplinary proceedings as a result of his or
her participation in an execution.”42
When a group of doctors sued in California in 1996 for
a declaration that physicians who participated in executions should lose their licenses under state law, the Court
of Appeal found highly significant the fact that the state
penal code appeared to authorize physician participation
in executions. “Surely,” the court reasoned, “the Legislature could not have expressly and implicitly provided for
physician involvement in executions, and simultaneously
subjected participating physicians to discipline or other legal sanctions from engaging in lawful conduct.”43
Even in the one state in which the medical board publicly
expressed a will to consider disciplining participating doctors, the state’s supreme court intervened. When the North
Carolina Medical Board issued a statement in 2007 warning that doctors who facilitate executions “may be subject
to disciplinary action,” it was sued by the Department of
Corrections, which claimed that the medical board was
interfering with its ability to carry out state law, which requires the presence of a physician during executions. The
North Carolina Supreme Court sided with the Depart-

ment of Corrections, noting that the state legislature had
both written the state’s death penalty law and had created
the medical board. Thus, “[t]o allow [the Medical Board]
to discipline its licensees for mere participation would elevate the created Medical Board over the creator General
Assembly.”44
With the death penalty statutes in all but two states contemplating some form of physician participation,45 it is
unlikely that courts will be any more sympathetic to medical board attempts to discipline doctors than the courts in
Georgia, California, and North Carolina have been. Even
in the few states in which state law or regulation incorporates the AMA guidelines, governing death-penalty law is
likely to trump the medical board’s authority.46 In Ohio, for
example, state law allows medical board discipline for violation of the AMA guidelines, but only to the extent “permitted by” state law. But Ohio law explicitly provides for the
presence at an execution of “[p]hysicians of the state correctional institution in which the sentence is executed,”47
in violation of the AMA guidelines. Under the reasoning
of the courts that have thus far addressed this issue, it is
unlikely that the Ohio medical board would be able to discipline a doctor for being present at an execution when his
or her presence is specifically provided for in the governing
death penalty statute.
2. Safe harbor and shield laws
Some states are not taking any chances and have preemptively protected doctors from any medical board action by
enacting various laws that are intended to trump any such
efforts. These laws, generally referred to as “safe harbor”
laws, specifically prevent medical boards from taking disciplinary action against medical providers who opt to participate in executions.48 In practice, these laws immunize
doctors from licensing challenges. Illinois was among the
first states to adopt such a provision; it did so in response to
a 1994 complaint requesting that the Illinois medical board
discipline doctors willing to participate in the execution of
John Wayne Gacy.49 Other states soon followed suit. In
addition, at least eight states have adopted “exclusionary”
statutes, which provide that lethal injections do not constitute the practice of medicine, thus insulating doctors who
participate in executions from medical board sanctions.50
Finally, many states have various “shield” laws and policies
in effect to ensure the anonymity of doctors who do participate in executions. These laws effectively protect such doctors against any licensing challenges by third parties.51
***
To determine whether a particular state’s medical board

page 20 journal of medical licensure and discipline vol 95 number 3 2009

can impose discipline, several hurdles must be overcome.
First, the state medical board must be empowered to discipline doctors for violating the ethical guidelines of the
AMA. As mentioned above, state law in only seven deathpenalty states even references the AMA in its ethical code.
Second, there must be no safe harbor statute on the books.
And third, the state’s governing death penalty statute must
not explicitly contemplate the participation of physicians.
In sum, in the vast majority of states (if not all of them), the
medical board has no legal power to discipline doctors for
participating in executions.
II. PRACTICAL REASONS FOR MEDICAL
BOARDS TO AVOID INTERVENTION

The position of the AMA and others opposed to physician
participation is well-publicized. But there is another side.
Even if there is a theoretical possibility of imposing discipline in a handful of states, there are compelling reasons
for medical boards to refrain from interfering in the execution business. Some doctors have even expressed an
obligation on the part of physicians to participate in order
to ensure that the execution does not result in unnecessary
pain or suffering.
For example, Dr. David Waisel, an anesthesiologist at
Children’s Hospital in Boston, recently argued that organized medicine has an obligation to permit physician participation in executions “to the extent necessary to ensure
a good death.”52 Dr. Waisel rejects the common arguments
against physician participation as slippery-slope arguments
that have little basis in reality. For example, he finds no
evidence to support the arguments that physicians who
participate in executions will lack the ability to act with
compassion or independence in their normal practice, or
that the public trust in the medical profession will be lost
as a result. In the end, it is the capacity of the three-drug
lethal injection procedure to inflict great suffering on the
condemned that has convinced Dr. Waisel that physician
participation in the process is necessary. Forbidding physician participation, he writes, “increases the chances of a
botched execution. It seems cruel to permit capital punishment but not to permit participation of those who are
capable of performing it humanely.”53
Dr. Atul Gawande, a Harvard medical school professor
who is himself opposed to physician participation in lethal injections, interviewed several doctors regarding their
decision to participate in executions.54 Published in the
New England Journal of Medicine, Dr. Gawande’s ac-

count provides a rare view into the motivations of doctors
who actually conduct executions in the United States.
One doctor, anonymously referred to as “Dr. A,” originally agreed to assist in an execution with the understanding that his role would be limited to cardiac monitoring.
Soon, though, his participation increased by virtue of his
presence on the scene, and he began placing IV lines
in the men who were set to die and assisting whenever
something went wrong during an execution.55 Another
doctor, “Dr. C,” worried about being exposed publicly as
an executioner, but had no moral qualms about his role.
“I think that if I had to face someone I loved being put to
death,” Dr. C commented, “I would want that done by
lethal injection, and I would want to know that it is done
competently.”56
One of the interviewed doctors chose not to remain anonymous. Dr. Carlo Musso, who assists with executions in
Georgia, told Dr. Gawande that he participates in spite of
the AMA guidelines because he feels an obligation not to
abandon inmates in their final moments. As Dr. Musso
explained, “[T]his is an end-of-life issue, just as with any
other terminal disease. It just happens that it involves a
legal process instead of a medical process. [A death penalty] patient is no different from a patient dying of cancer
– except his cancer is a court order.”57
A doctor recently hired by the state of Arizona to oversee
executions testified in a recent deposition that he was “surprised” by the number of people who argued that it was
“totally inappropriate” for doctors to participate in executions.58 To the contrary, the doctor testified, “I think as
long as it’s something that the government thinks is appropriate and it should be done, it should be done correctly.
So that’s why I’m . . . participating.”59
Another prominent, and oft-cited, defense of physician
participation in lethal injection executions is that offered by Dr. Kenneth Baum, who argues that under the
patient-centered conception of medical ethics, physicians
are obligated to participate in lethal injections. Dr. Baum
echoes Dr. Musso’s analogy of a dying cancer patient:
“Condemned death row inmates are, for all practical purposes, terminally ill patients, albeit under a nontraditional
definition of the term, and deserve to be treated as such.” 60
In fact, Dr. Baum notes that doctors generally are thought
to have a duty to minimize suffering when a patient is dying, and that “[t]o desert these individuals [condemned
inmates] in their most vulnerable hour would be antithetical to the beneficent ideals of medical practice.”61 It is the

journal of medical licensure and discipline vol 95 number 3 2009 page 21

doctor who turns his or her back on a dying inmate, and
refuses to do what he or she can to relieve suffering, “who
truly violates the ethical code of the profession.”62 Or, as
another doctor put it in a response letter to Dr. Gawande’s
article, “the participation of physicians seems more humane than delegating the deed to prison wardens, for
by condoning the participation of untrained people who
could inflict needless suffering that we physicians might
have prevented, we are just as responsible as if we had
inflicted the suffering ourselves.”63
III. CONCLUSION

Medical boards have broad jurisdiction and much to address
in the medical profession. It is far from clear, however, that
they have the legal authority to impose discipline on doctors
who participate in executions. In fact, it is far more likely
that they do not have that authority in the vast majority of
states. Moreover, while the image of doctors participating in
the execution process may spark a viscerally negative reaction in members of a profession dedicated to healing, the

reality is that there is a role for doctors to play in the minimization of pain and suffering at the end of a condemned
inmate’s life. For a medical board to discipline a doctor for
playing that role would be, in most instances, legally untenable and a questionable exercise of the board’s priorities.
ACKNOWLEDGEMENTS

Portions of this article are adapted from an article recently
published in the North Carolina Law Review. See Ty Alper,
The Truth about Physician Participation in Lethal Injection
Executions, 88 N.C. L. Rev. 11 (2009). I am indebted to
Carolina Rodriguez for outstanding research assistance.
AUTHOR AFFILIATIONS

Ty Alper, Associate Director, Death Penalty Clinic, University of California, Berkeley, School of Law.
1.	 Nancy Frazier O’Brien, Doctors’ role in executions part
of new tactic against death penalty, Catholic News
Service, Feb. 4, 2009.
2.	 See Deborah W. Denno, When Legislatures Delegate

Table A: Incorporation of AMA Ethical Guidelines into State Medical Ethics Statutes	
I.	 Death Penalty States With Statutory or Regulatory Incorporation of AMA Guidelines
Kentucky*

Maryland

Mississippi

Nebraska

New Hampshire

Ohio*

Tennessee
II.	 Death Penalty States Without Statutory or Regulatory Incorporation of AMA Guidelines
Alabama

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Idaho

Illinois

Indiana

Kansas

Louisiana

Missouri

Montana

Nevada

North Carolina

Oklahoma

Oregon

Pennsylvania

South Carolina

South Dakota

Texas

Utah

Virginia

Washington

Wyoming

III.	 Non-Death Penalty States With Statutory or Regulatory Incorporation of AMA Guidelines
Alaska

Hawaii*

New Mexico

West Virginia

Iowa

IV. 	 Non-Death Penalty States Without Statutory or Regulatory Incorporation of AMA Guidelines
Maine

Massachusetts

Michigan

Minnesota

New Jersey

New York

North Dakota

Rhode Island

Vermont

Wisconsin
* The AMA Guidelines are incorporated by statute in these states.
page 22 journal of medical licensure and discipline vol 95 number 3 2009

Table B: Citations to State Ethical Laws
State

Relevant Statutes and Regulations

Alabama

Ala. Code § 34-24-360 (2009)

Alaska

Alaska Stat. § 08.64.326 (2009)
Alaska Admin. Code tit. 12, § 40.955(a) (2009)

Arizona

Ariz. Rev. Stat. Ann. § 32-1451 (2009)

Arkansas

Ark. Code Ann. §17-95-409 (West 2009)

California

Cal. Bus. & Prof. Code § 2234 (West 2009)

Colorado

Colo. Rev. Stat. § 12-36-117 (2009)

Connecticut

Conn. Gen. Stat. Ann. § 20-13c (West 2009)

Delaware

Del. Code Ann. tit. 24 § 1731 (2009)

Florida

Fla. Stat. Ann. § 458.331 (West 2009)

Georgia

Ga. Code Ann., § 43-34-8 (2009)

Hawaii

Haw. Rev. Stat. Ann. § 453-8(a)(9) (LexisNexis 2009)

Idaho

Idaho Code Ann. § 54-1814 (2009)

Illinois

225 Ill. Comp. Stat. Ann. 60/22 (LexisNexis 2009)

Indiana

Ind. Code. § 25-22.5-5-2.5 (West 2009)

Iowa

Iowa Code Ann. § 147.55 (West 2009)
Iowa Admin. Code r. 653-13.20 (2009)

Kansas

Kan. Stat. Ann. § 65-2836 (2009)

Kentucky

Ky. Rev. Stat. Ann. § 311.597(4) (West 2009)
201 Ky. Admin. Regs. 9:005(1)(a) (2009)

Louisiana

La. Rev. Stat. Ann. § 37:1285 (2009)

Maine

Me. Rev. Stat. Ann. tit. 32 § 3282-A (2009)

Maryland

Md. Code Ann., Health Occ. § 14-404 (West 2009)
Md. Code Regs. 10.32.02.10 (2009)

Massachusetts

Mass. Gen. Laws Ann. ch. 112, § 5 (West 2009)

Michigan

Mich. Comp. Laws Ann. § 333.16221 (West 2009)

Minnesota

Minn. Stat. Ann. § 147.091 (West 2009)

Mississippi

Miss. Code Ann. § 73-25-29 (West 2009)
50-013-001 Miss. Code R.§ 22(500)(2)(Weil 2009)

Missouri

Mo. Rev. Stat. § 334.100 (West 2009)

Montana

Mont. Code Ann. § 37-3-323 (2007)

Nebraska

Neb. Rev. Stat. Ann. § 38-178 (2009)
172 Neb. Admin. Code, ch 88, § 013(1) (2009)

Nevada

Nev. Rev. Stat. Ann. § 630.301 (West 2007)

New Hampshire

N.H. Rev. Stat. Ann. § 329:17 (2009)
N.H. Code Admin. R. Ann. Med. 501.02(h) (West 2009)

New Jersey

N.J. Stat. Ann. § 45:1-21 (West 2009)

New Mexico

N. M. Stat. Ann. § 61-6-15 (West 2009)
N.M. Code R. § 16.10.8.9(A) (Weil 2009)

New York

N.Y. Educ. Law § 6530 (McKinney 2008)

North Carolina

N.C. Gen. Stat. Ann. § 90-14 (West 2009)

North Dakota

N.D. Cent. Code §43-17-31 (2009)

journal of medical licensure and discipline vol 95 number 3 2009 page 23

3.	

4.	
5.	

6.	
7.	
8.	

9.	

Ohio

Ohio Rev. Code Ann. § 4731.22(B)(18) (West 2009)

Oklahoma

Okla. Stat. Ann. tit. 59, § 509 (West 2009)

Oregon

Or. Rev. Stat. Ann. § 677.190 (West 2009)

Pennsylvania

63 Pa. Stat. Ann. § 422.41 (West 2009)

Rhode Island

R.I. Gen. Laws § 5-37-5.1 (2009)

South Carolina

S.C. Code Ann. § 40-47-110 (2008)

South Dakota

S.D. Codified Laws § 36-4-30 (2009)

Tennessee

Tenn. Code Ann. § 63-6-214 (West 2009)
Tenn. Comp. R. & Regs. 0880-02-.14(8) (2009)

Texas

Tex. Occ. Code Ann. § 164.053 (Vernon 2009)

Utah

Utah Code Ann. § 58-1-501 (West 2009)

Vermont

Vt. Stat. Ann. tit. 26 § 1354 (2009)

Virginia

Va. Code Ann. § 54.1-2915 (West 2009)

Washington

Wash. Rev. Code § 18.130.180 (West 2009)

West Virginia

W. Va. Code Ann. § 30-3-14 (West 2009)
W. Va. Code R. § 11-1A-12 (12.2)(d) (2009)

Wisconsin

Wis. Stat. § 448.02(3) (West 2009)

Wyoming

Wyo. Stat. Ann. § 33-26-402 (2009)

Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What It Says
About Us, 63 Ohio St. L.J. 63, 97 (2002). Only Ohio
uses a different procedure. See Ian Urbina, Ohio
Is First to Change to One Drug in Executions, N.Y.
Times, Nov. 13, 2009.
See Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death
Penalty, 76 Fordham L. Rev. 49, 54-58 (2007).
David Waisel, Physician Participation in Capital Punishment, 82 Mayo Clinic Proc. 1073, 1074 (2007).
See Ty Alper, Anesthetizing the Public Conscience:
Lethal Injection and Animal Euthanasia, 35 Fordham
Urb. L.J. 817, 819 (2008).
See, e.g., id., at 819-20 & n.20.
Baze v. Rees, 128 S.Ct. 1520, 1532 (2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 842 (1994)).
Often suggested is that states consider a one-drug,
anesthetic-only procedure similar to that used in most
animal euthanasia. See, e.g., Alper, supra note 5, at
833-39. Ohio recently became the first state to use
such a method.
Another legal challenge to lethal injection protocols
has to do with establishing intravenous access in
inmates with compromised veins. In such cases, it is
often necessary to place a central line, in, for example,
the inmate’s groin. Such a procedure almost always
necessitates the skill of a trained physician.

10.	 Emma Harris, Will Medics’ Qualms Kill the Death
Penalty? 441 Nature 8-9 (May 4, 2006).
11.	 Council on Ethical and Jud. Affairs, AMA, Council
Rep., Physician Participation in Capital Punishment,
270 JAMA 365, 365 (1993).
12.	 Message from Orin F. Guidry, M.D., President, Am.
Soc’y of Anesthesiologists, Observations Regarding Lethal Injection (June 30, 2006), available at http://www.
asahq.org/news/asanews063006.htm.
13.	 Society of Correctional Physicians, Code of Ethics,
(adopted 1997, amended 1998).
14.	 See, e.g., Henry Weinstein, Anesthesiologists Advised to
Avoid Executions, L.A. Times, July 2, 2006; Rosanna
Ruiz, Hippocratic Oath Keeps Doctors Out of Death
Chambers, Houston Chron., February 24, 2006;
Valerie Reitman, Doctors Wary of Crossing Line, L.A.
Times, Feb. 22, 2006; Adam Liptak, Should Doctors
Help With Executions? No Easy Ethical Answer, N.Y.
Times, June 10, 2004; Lawrence K. Altman, Focus on
Doctors and Executions, N.Y. Times, Mar. 20, 1994;
Don Colburn, Lethal Injection: Why Doctors Are Uneasy About the Newest Method of Capital Punishment,
Wash. Post., Dec. 11, 1990.
15.	 See Michael D. Maves, Chief Executive Officer,
American Medical Association, A challenge to the
House of Delegates, available at http://www.ama-assn.
org/ama/pub/news/speeches/challenge-house-delegates.shtml (Nov. 8, 2008).

page 24 journal of medical licensure and discipline vol 95 number 3 2009

16.	 See W. Noel Keyes, The Choice of Participation by
Physicians in Capital Punishment, 22 Whittier L. Rev.
809, 810 (2001).
17.	 See Kenneth Baum, “To Comfort Always”: Physician Participation in Executions, 5 n.y.u. j. legis. & pub. pol’y 47,
53 (2001).
18.	 See Denno, supra note 3, at 84.
19.	 See id. at 84-88.
20.	 See Nadia N. Sawicki, Doctors, Discipline, and the Death
Penalty: Professional Implications of Safe Harbor Policies,
27. yale l. & pol’y rev. 107 (2008).
21.	 See Atul Gawande, When Law and Ethics Collide—Why
Physicians Participate in Executions, 354 new eng. j. med.
1221, 1223-28 (2006).
22.	 See Jennifer McMenamin, Lethal Practice, Baltimore
Sun, Oct. 22, 2006.
23.	 See Liptak, supra note 14.
24.	 Defendant’s Response to Memorandum and Motion
to Reactivate Proceedings at 5, Taylor v. Jones, No.
5:05CV00825 (W.D. Okla. Sept. 3, 2008).
25.	 See Teresa A. Zimmers & David A. Lubarsky, Physician Participation in Lethal Injection Executions, 20
Current Opinion Anaesthesiology 147, 148-49 (2007).
26.	 See Deposition of Medical Team Member 1 at 11,
Dickens v. Napolitano, No. CV07-1770-PHX-NVW
(D. Ariz. Oct. 1, 2008); Associated Press, Missouri
Poised to Resume Executions; State Has Added Anesthesiologist To Death Row Team, St. Louis Post-Dispatch,
May 27, 2008.
27.	 Harbison v. Little, 511 F. Supp.2d 872, 876 (M.D.
Tenn. 2007); Ian Urbina, Ohio Finds Itself Leading the
Way to a New Execution Method, N.Y. Times, Nov.
17, 2009.
28.	 The Am. Coll. of Physicians et. al., Breach of Trust:
Physician Participation in Executions in the United
States 46 (1994).
29.	 Carlos Campos, Doctors’ Execution Role Targeted,
Atlanta J.-Const., June 2, 2005.
30.	 See Andis Robenznieks, Ethics Charges Related to
Executions Dropped, AM News, Jan. 31, 2005.
31.	 Arthur Zitrkin, Doctor, Reread Your Oath, L.A. Times,
Dec. 8, 2004.
32.	 See Deborah Yetter, Ethics Complaint is Dismissed;
Foes of Execution Challenged Fletcher, Courier-J., Jan.
14, 2005.
33.	 See Gawande, supra note 21, at 1223.
34.	 See Pauline Vu, Executions Halted as Doctors Balk, Stateline.org, Mar. 20, 2007; Kevin B. O’Reilly, N.C. court overturns ban on doctor participation in executions, AM News,
May 18, 2009.

35.	 See Gawande, supra note 21, at 1223.
36.	 As a result of medical boards operating independently
from one another, their governing statutes and regulations are not uniform. Some states, for example, have
statutory provisions exclusively addressing medical ethics and/or ethical sanctions, while others do not. States
that do not have dedicated “ethics” provisions at times
discuss these matters in other provisions of the statute
or regulations. The statutory provisions cited in Table
B pertain to those provisions that define unprofessional conduct, either generally or specifically. Note that
some laws and regulations refer to “unethical” rather
than “unprofessional” conduct. To determine whether
a state referred to the AMA’s ethical standards, key
term searches were conducted for the relevant statutes
and regulations in all 50 states.
37.	 Ohio Rev. Code Ann. § 4731.22(B)(18) (West 2009).
38.	 Tenn. Comp. R. & Regs. 0880-02-.14(8) (2009).
39.	 Md. Code Regs. 10.32.02.10 (2009).
40.	 It is quite clear legally that a state medical board’s discretion not to pursue discipline against a participating doctor
is unreviewable. See Sawicki, supra note 20, at 138 n. 144.
41.	 Carlos Campos, Lawyers: Don’t let Doctors Execute, Atlanta J.-Const., Dec. 21, 2005.
42.	 See Zitrin v. Ga. Composite State Bd. of Med. Examiners, 653 S.E.2d 758, 762 (Ga. Ct. App. 2007).
43.	 Thorburn v. Dep’t. of Corrs., 78 Cal.Rptr.2d 584, 590
(Cal. App. 1998).
44.	 North Carolina Dept. of Corr. v. North Carolina
Medical Bd., 675 S.E.2d. 641, 651 (N.C. 2009).
45.	 See Denno, supra note 3, at 88-89.
46.	 See Eric Berger, Lethal Injection and the Problem of
Constitutional Remedies, 27 Yale Law and Pol’y Rev.
259, 321 (2009).
47.	 Ohio Rev. Code Ann. § 2949.25 (West 2007).
48.	 See Sawicki, supra note 20, at 130.
49.	 Id. at 124-25.
50.	 See Denno, supra note 3, at 89 & n.263. It is worth
noting that these statutes also serve to insulate nondoctors from discipline for performing tasks during
executions that are typically the province of the medical profession.
51.	 Illinois’ statute, for example, provides that “[t]he identity
of executioners . . . and information contained in records
that would identify those persons shall remain confidential, shall not be subject to disclosure, and shall not be
admissible as evidence or be discoverable in any action
of any kind in any court or before any tribunal, board,
agency, or person.” 725 Ill. Comp. Stat. Ann. 5/119-5(e)
(West 2009).

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52.	 Waisel, supra note 4,at 1073.
53.	 Id. at 1079.
54.	 See Gawande, supra note 21.
55.	 See id. at 1225.
56.	 Id.
57.	 Id.
58.	 Dickens v. Brewer, No. CV07-1770-PHX-NVW (D.
Ariz.) (deposition of Medical Team Member 1), at
263.
59.	 Id.
60.	 See Baum, supra note 17, at 61.
61.	 Id. at 62.
62.	 Id.
63.	 Bruce E. Ellerin, Letter to the Editor, Why Physicians Participate in Executions, 355 New Eng. J.
Med. 99, 99 (2006).

page 26 journal of medical licensure and discipline vol 95 number 3 2009

NOTE
Posted on PLN’s website with permission of the author and permission of the Federation of State
Medical Boards. This article originally appeared in the FSMB Journal of Medical Licensure and
Discipline, Vol. 95, Number 3 (2009). See: http://www.journalonline.org