Medical Ethics and Capital Punishment California postpones an execution because no licensed medical professional will administer the lethal dose. Last month, the Supreme Court stopped an execution in Florida after a prisoner there challenged the use of execution drugs. Guests discuss doctors, medical ethics and the death penalty.
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Medical Ethics and Capital Punishment

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Medical Ethics and Capital Punishment

Medical Ethics and Capital Punishment

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NEAL CONAN, host:

From NPR News in Washington, DC, I'm Neal Conan, and this is TALK OF THE NATION.

This week this state of California postponed a scheduled execution because no doctor could be found to administer the lethal injection. Dr. Jack Lewin, executive vice president and CEO of the California Medical Association.

Dr. JACK LEWIN (Executive Vice President and CEO, California Medical Association): These doctors oftentimes are taking care of the same patient as a prison prior to the execution, for years, and it's a breach of trust between the doctor and the patient to be both in the role of the healer and then potentially later on the executioner.

CONAN: Doctors and the death penalty, plus the role of Toledo's Muslim community in the arrest of three alleged terrorists there this week, and we'll check in with Geoff Calkins as the women warm up for the free skate in Turin. It's the TALK OF THE NATION after the news.

(Soundbite of music)

This is TALK OF THE NATION. I'm Neal Conan in Washington. There's a doctor on hand at most executions in this country whose job it is to declare the inmate dead. This month a U.S. district court judge in California ordered two anesthesiologists to play a more active part in the lethal injection of death row inmate Michael Morales. The doctors refused, and the case has been put on hold indefinitely.

The controversy raises questions about doctors and the death penalty. Should they participate to make executions as humane as possible? Should they refuse on the grounds that executions violate their oaths to first do no harm? Major medical associations, including the AMA, condemn doctors who administer capital punishment, but some ethicists worry that without their expertise, some lethal injections could cause agonizing deaths that violate the constitutional band against cruel and unusual punishment.

Later in the program, the Muslim community's role in the arrest of three alleged terrorists in Toledo and a look ahead to a big night in Turin. But first, doctors and lethal injection. We want to hear from the medical community on this. What role do you think doctors should play in lethal injections? Should doctors who participate in executions have their licenses taken away? Our number here in Washington is 800-989-8255. That's 800-989-TALK. E-mail us, talk@npr.org. We begin with NPR's Joanne Silberner who's with us here in studio 3A. Good afternoon Joanne.

Ms. JOANNE SILBERNER (NPR Correspondent): Good afternoon, Neal.

CONAN: So what's unique about this case in California?

Ms. SILBERNER: Well, I think what's unique about it is it's showing how much capital punishment is now becoming a medical question, you know, can it be done without causing pain, as you asked, because that would be cruel and unusual punishment. And specifically what happened here was the judge gave the state a couple of options for how this execution could occur.

Both of them required the involvement of the medical profession, and in both cases, in one, they had some anesthesiologists lined up who backed out at the last minute, and the second method, which was going to be a sedative, a lethal dose of a sedative, the judge said, if you do that, you have to have medical professionals on hand. The state couldn't find any, and so it had to back out of those plans for the execution.

CONAN: Now as I understand it, the executions by lethal injection, as a rule, use three different injections, a first, an anesthetic, and then a drug that paralyzes the inmate, and then finally one that causes a heart attack, and there's been concern, some medical researchers suggesting that that paralyzing drug may mask agony.

Ms. SILBERNER: If the sedative hasn't worked. And the fact is the way this three drugs, uh, this three drug series was, occurred was because in 1977 Oklahoma came up with this plan. There was no research. There's really no, nobody really wants to do, no medical professionals want to do research on what's the best way to kill someone. The state of Oklahoma came up with this plan. That's how it was supposed to happen. That's how it's happening.

And then a study came out in April of 2005 in the journal The Lancet. What some folks did was they looked at 49 executions. They looked at levels of the sedative in people's blood. They found that in nearly half of them, it's very possible the folks were aware of the second and third drug's coming on...

CONAN: Mm hmm.

Ms. SILBERNER: ...suggesting that they were in a high level of pain, couldn't see it through the sedative, but it was suggesting that it was happening, and this judge was particularly concerned about that.

CONAN: Now how unusual is it for this judge to request doctors to take on this role in an execution?

Ms. SILBERNER: It's hard to really tell that. You know, of the 38 states that have the death penalty, some of them don't make their protocols public. I mean, generally what's happens is, as you said, there's a doctor who comes in and says, you know, confirms that death has occurred. In some cases, doctors are observers, but it's not really clear how active doctors have been.

They're not supposed to be according to their medical societies. They're not supposed to be involved at all. They're not supposed to be there. The one thing the medical societies do accept is the confirmation of death.

CONAN: Mm hmm. Though even some raise questions about that. If the doctor's asked to pronounce someone dead, and he says, no, they're not, then presumably, they'd be taken back in and given another injection.

Ms. SILBERNER: Well, that was why the anesthesiologists in the California case backed out. They said, you know, if the first sedative doesn't work sufficiently well then we're in a tough situation. We don't know what we'd do in that, we know what we can't do in that situation so that's why we're backing out. Although we only know that because the warden told us that two doctors who agreed in the first place to participate, no one knows their names, and so we're just taking the warden's description of it.

CONAN: And we're talking, we've been talking about lethal injections. I know that's the most common form of execution. Is it the only one?

Ms. SILBERNER: No. Some states allow the inmate to opt for hanging. Nebraska allows, has electrocution. So there are other, there are other methods of doing this, and the question in all of those is the idea of arriving at death in a pain-free way. It's rare enough in real life, and, you know, how do you do here? Well, again, no one's ever done any research on the best way to do it.

CONAN: Dr. Jack Lewin is the CEO of the California Medical Association which wants to eliminate physicians' involvement in executions in the state of California. Dr. Lewin joins us now by phone from Monterey in California. Good of you to take time out to speak with us today.

Dr. LEWIN: Thank you, Neal.

CONAN: What was your reaction to the judge's ruling in the Morales case?

Dr. LEWIN: Well, we felt that it was a violation of our Hippocratic Oath and professional principles. We, the California Medical Association, takes no position pro or con, you know, on capital punishment per se, but we don't believe doctors are executioners. They are healers, and they're actually caring for these patients as inmates, and how can you switch from the role of a physician to an executioner? We thought it was wrong, and we asked the doctors not be involved, and we feel the same way about nurses and other healthcare providers.

CONAN: Mm hmm. There's an editorial in a Georgia newspaper, as you know, this is an issue really in many places around the country, but this editorial argued that a physician such as this is really an indirect way of opposing the death penalty.

Dr. LEWIN: Oh, that is not correct. I mean, this is not a patient-physician relationship as might occur in other ethical issues where there are controversies, such as abortion or end-of-life care.

Unidentified Woman: Hello, everyone, welcome aboard...

Dr. LEWIS: This really is doctors dealing with a judicial issue and a court issue that really we do not believe we should be involved in. It's not a patient-physician relationship.

CONAN: Well, Dr. Lewin, we'll take your microphone out just for a minute until whatever announcement that is you're listening to stops echoing down the line so we can get a clearer line. And we'll take the opportunity of these few seconds to remind listeners that if they'd like to join the conversation, our number is 800-989-8255, 800-989-TALK. Our e-mail address is talk@npr.org, and let's get a caller on the line. This is Dana(ph). Dana's calling us from San Francisco in California.

DANA (Caller): Hi, how are you?

CONAN: I'm very well, thanks.

DANA: Good. I have a comment. I do feel that this is in some ways a little bit of a made-up problem because I think physicians participate in all kinds of ethically slippery situations, including performing legal abortions or participating in armed invasions in combat on armed warships and in armies, and you could argue in all of those cases that you're violating the do no harm of requirement in the oath...

CONAN: Well...

DANA: ...and that perhaps for a legal procedure, for a state-sanctioned legal procedure, that physicians might even be ethically bound to participate to ensure humanity.

CONAN: Dr. Lewin, were you able to hear the question?

Dr. LEWIN: I'm sorry. I missed part of that.

CONAN: Well, I think what Dana was saying is that doctors are, uh, participate in lots of ethically slippery situations, including abortions, participation in military invasions on warships, that sort of thing. If it's legal, why not?

Dr. LEWIN: Well, because there's more to healthcare than legal. We have a covenant, if you will, with the patient. In an abortion, the doctors, many young doctor opt out. They don't participate because they don't believe they should, and some do. But that is a doctor/patient relationship. There is no way that it's a doctor/patient relationship in the issue of an execution. That is a very important distinction. And during World War II, during other times in history, doctors have been coerced into participating in these kinds of things. And we don't want to repeat what history has already taught us.

DANA: I would argue...

Dr. LEWIN: Even in the Middle Ages. There was an execution here.

CONAN: Hold on just a second, Dana. We'll get doctor Lewin to finish the point.

Unidentified Man: Upper 60s, low 70s today...

CONAN: And we're getting the forecast from Monterey. And I have to say the forecast sounds a lot better than it does here in Washington, doesn't it, Joanne? Go ahead, Dr. Lewin. I'm sorry.

Dr. LEWIN: So I think that, you know, we just don't want to be involved in the role of an executioner, and we don't want to offer advice on how best to execute somebody. We don't want to be technical assistants. We don't want to be standing there as observers, because if the IV infiltrates into the soft tissue instead of the vein and the medicine doesn't work, the doctor's role would then be to resuscitate the patient until we could repeat the procedure. That is not where we need to be. It's very important.

CONAN: Dana, go ahead.

DANA: I'm also a physician and what I would say is that I've had many patients who have been terminally ill, and I think in spite of the fact that, you know, we all, I have a doctor/patient relationship with those people as well, and I can completely understand how I could participate in the humane ending of a life that really cannot continue without significant pain.

So I think that drawing arbitrary lines really can get us into more trouble. It allows for us to say all kinds of things, including that you wouldn't participate in an abortion, that you wouldn't participate in helping a terminally ill patient. And I just don't believe that that's necessarily in the patients' best interest. I realize that in this situation it's a little bit different. But I think we participate in these things all the time.

Dr. LEWIN: Well, I'd have to, you know, I certainly empathize with what you've said. We do, obviously we have policy that, this policy was created by 2,000 doctors in our house of delegates, deliberated carefully. At the end of life it's a very different thing. That is a doctor/patient relationship where you're working together. As a physician colleague I'd like you to see the difference between what happens when you're called into be part of an execution. It is not the same thing, and that's reason the prison's physicians in California have asked for our help, to try to get out of this responsibility.

CONAN: Joanne Silberner?

Ms. SILBERNER: Yeah, I'd just like to break in and say there was a very interesting poll that surprised me done back about six years ago that showed that 20% of physicians in an anonymous poll, so maybe it's not, you know, who knows, 20% said they would administer a lethal injection.

CONAN: Hmm. We're gonna have to go away for a short break. Dana, thanks very much for the call.

DANA: Thank you so much. Bye bye.

CONAN: And if you'd like to join us, our number is 800-989-8255, that's 800-989-TALK. Email is TALK@npr.org. Back after the break. I'm Neal Conan. You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. We're talking today about doctors and the death penalties, the role of physicians in the controversial act of execution. The issue has come to a head in California, where a judge ordered that two medical professionals be present at the scheduled execution of Michael Morales. At the last minute the anesthesiologist who had agreed to be present changed their mind. The execution is now on indefinite hold.

The debate over the role of medical professionals in executions is not. We want to hear from you, especially if you practice medicine. Should you be barred from any role in an execution? Should this be a personal choice?

Our number is 800-989-8255, 800-989-TALK. Email is TALK@npr.org. NPR Science Desk Reporter Joanne Silberner is here with us in the studio and Dr. Jack Lewin, the CEO Of the California Medical Association, is with us on the phone from Monterey in California.

Dr. Lewin, I know you have to run but I did want to ask you before, the California Medical Association, as you suggest, condemns doctors who participate in these executions. Is there any penalty for doctors who do so?

Dr. LEWIN: Not at this point, except for sanction from peers and possibly from the Medical Board of California.

CONAN: So somebody could lose their license is what you're saying?

Dr. LEWIN: Possibly. But at this point we're passing, we've got a law introduced to try to actually prohibit physician participation in the legislature. That would be against the law.

CONAN: But right now executions have been held in California as recently as a couple of months ago, I think. Were the doctors who participated in that in any way sanctioned?

And I guess we've lost Dr. Lewin on the line. He was, as I guess you could hear, running to catch what sounded like a plane. And I think they may have taken over his cell phone and forced him to shut it down. We apologize for that and we'll have to move on. Any case, if you'd like to join us, 800-989-8255, 800-989-TALK. Email is TALK@npr.org.

And let's get Patrick on the line. Patrick calling from Nashville.

PATRICK (Caller): Hi. I just had a quick comment, harkening back to what just happened to the pharmacist in Illinois, whereas the pharmacist/patient relationship is also a covenant relationship, but the State of Illinois ruled that pharmacists should not be able to moralize their decisions or the relationship between patients. And I just wonder, can California impose these same kind of sanctions on doctors?

CONAN: And this is involving the decision to dispense the morning after pill?

PATRICK: Yes, in reference to the morning after pill. Granted, the context is different, but it seems like a same type of argument.

CONAN: Uh-huh. And similar, I guess, laws in Massachusetts as well, Joanne Silberner.

Ms. SILBERNER: Well, I think that there are laws that allow, some states allow pharmacists leeway in some state, Illinois specifically, does not. So there's a broad spectrum across the country.

CONAN: But is it, in terms of the ethical issue, in terms of forcing medical professionals, pharmacists or doctors, to participate in something that violates their ethical conscience. On the other hand a lot of people say, Hey, if it's a perfectly legal prescription, why shouldn't a patient be able to get it with a doctor's prescription? So...

Ms. SILBERNER: Yeah, it is all about where you draw the line. And both are very complicated issues. You know, in the case of the execution it's a volitional execution. I think part of it for the doctors, at least the ones I've spoken to, is the association. They want to see doctors as healers, or at least the medical associations do. You know, we're healers, we're not executioners. That's the line you hear over and over again. They don't want to be associated with that.

CONAN: Patrick?

PATRICK: My next question would be, is an execution coming down as a legal decision or does it come from a prison physician in the form of a medical order? And does that change then the role of the anesthesiologist in performing a medical order? I've got questions. I don't have answers.

Ms. SILBERNER: Yeah, I'm not sure. I'm not a legal scholar. I couldn't answer that. But I don't think it comes as a medical order. In this case, in the California case, what happened was, the judge, after hearing information, a lot of it came from that Lancet article that showed the possibility of experiencing pain, the judge specifically ordered the involvement of the medical profession. When the State couldn't deliver on that the execution had to be postponed.

CONAN: Patrick, I'm not sure we have any answers either but thanks very much for the questions.

PATRICK: Sure thing. Thank you.

CONAN: Earlier this month in Georgia, the State Assembly approved a bill that would protect doctors who assist in lethal injections from losing their medical license. In 2001 Georgia permitted the use of lethal injections as an alternative to the electric chair. Representative David Ralston, a Republican, sponsored that measure and he joins us now from his office in Atlanta, Georgia. Good of you to be with us on TALK OF THE NATION.

State Representative DAVID RALSTON (Republican, Georgia): Thank you very much, Neal, I'm happy to be with you.

CONAN: Why is this bill necessary, do you think?

State Representative RALSTON: This bill is necessary to ensure that we protect the death penalty statute that we have here in Georgia, which as you indicated was modified back in 2001 when the courts decided that the electric chair was not an acceptable form of punishment any longer.

We passed a lethal injection statute and I think this bill is necessary to ensure that doctors who participate in the process are not subject to having their licenses revoked or even challenged simply because of their participation in the carrying out of a lawful procedure.

CONAN: And I understand that followed a lawsuit that was filed against a doctor in Georgia who in 2004 assisted in executions for the State. And this would be designed to shield people like him from those lawsuits?

State Representative RALSTON: Actually, this legislation was introduced back in the 2005 session of the General Assembly here in Georgia and preceded that lawsuit. There is, however, as you indicated a lawsuit that is pending in the Fulton County Superior Court here in Atlanta that does challenge licensures of a physician who participated.

But this bill is designed to protect the physician merely because of their participation in the procedure.

CONAN: Why would you want doctors to be involved in lethal injections?

State Representative RALSTON: Georgia recognizes that pronouncing death at an execution is a medical function. And so the primary function of physicians at the death penalty phase here in Georgia is simply to pronounce death after the injection has been made. And it has always been felt that it's professionally more proper, I suppose is the way to say that, for doctors to actually do that, to have that call.

CONAN: And how do you respond to doctors who say, I'm a healer, my oath is to first do no wrong, I can't do this?

State Representative RALSTON: I can't speak for the doctors. I mean I'm a part-time legislator, I'm a citizen legislator, and I'm an attorney. And I have a professional oath that I'm required to follow. I understand that they have an oath to follow, but we do have a law in Georgia that provides for a death penalty and it provides for a means of executing that death penalty, that being lethal injection. And for physicians who do enter into a contract with the State of Georgia to participate in that, this gives them a way to not have their licenses be revoked simply because of participating in a lawful procedure.

CONAN: And let's see if we can get another listener on the line. This is Jason. Jason calling us from St. Louis.

JASON (Caller): Hi. I'm a pediatrician and I work in an intensive care unit at a major university here. And as such we deal with a lot of the medications that are in question and this cocktail that's used with the lethal injection on a regular basis. And we also deal with the dying process and determination of death and that sort of thing. And they're not easy processes. And so let me just say to begin with that I don't feel like physicians need to be involved with this, for a lot of the reasons that have already been stated.

And additionally, you know, everything that we're trained to do is to try to make people better or at least not make them worse. And we're not physiology technicians. But one thing that I think might be a solution to this question is there are technologies that might allow for answering the question how awake or how alert, or how capable of feeling pain, anxiety or discomfort, is the prisoner, patient/victim, however you want to refer to them.

One thing that I'm thinking of is something that amounts to a simplified EEG, or a brainwave scan. It involved putting three electrodes on the forehead and then it gives you a readout of a sort of a normalized activity. So 100 is awake, alert and doing long division in your head, and zero is basically no brain activity at all, and anybody less than 40 has a very small chance of being awake or alert. And I mean it's literally that easy, it takes no interpretation of any kind.

And so that might preclude having a physician participate at any point in the process, aside from the declaration of death.

CONAN: Uh-huh.

Ms. SILBERNER: Yeah, that idea is in play. It's been talked about. There are a couple of different instruments that could be used to determine that. And it remains to be seen, though, whether courts would accept that as adequate monitoring. And then it's also the question of what happens if the person is aware. You know...

JASON: Right. And that's a very difficult, I'm sorry, I didn't mean to interrupt.

CONAN: No, that's all right.

JASON: That's actually a very difficult question. It takes a fair amount of training to adequately sedate somebody, even for, you know, like a mild procedure or something that could be slightly noxious, and to do it safely. But it's not as easy or straightforward a process as it might sound. And even monitoring, you're right, you can't necessarily guarantee that it's going to be a straightforward process, and it just pushes the question one further step down the road: what do you do if they're not adequately sedated? Do you then get another, do you have to get input from somebody else to say okay, doc, now what do we do?

CONAN: Uh-huh.

JASON: I do think that this does sort of reveal a little bit of the, I don't want to be strong about it, but I guess hypocrisy we have in the country about the death penalty. We want to have it, but we don't want to hear about how ugly it can be. We want it to be smooth and peaceful and calm and not deal with the reality that somebody's going to die. That's it. Their life is ending.

CONAN: Hmm. I wonder, do you have a reaction to that Representative Ralston?

Representative DAVID RALSTON: Well, my reaction, I think the pediatrician touched on an interesting point that I think is very relevant. And if my history serves me correctly I think that after the Supreme Court essentially reinstated the death penalty back in the mid-70s, I don't remember exactly the year...

CONAN: I think it was '75, yeah.

State Representative RALSTON: I think so. As I recall the first, or one of the first, at least the most publicized execution subsequent to it being approved was a firing squad.

CONAN: Gary Gilmore, yes.

State Representative RALSTON: Yeah, in Utah. Georgia at that time went back to using electrocution. There was a lot of debate. I know other states debated the propriety of using electrocution and our Supreme Court here in 2001 decided that that was a cruel and inhumane form of punishment. The legislature in response to that adopted what was becoming more accepted, and that was the lethal injection.

So I think the doctor's point is that maybe as technology evolves that we may see, you know, further refinement, I suppose, of this procedure, you know. And that's a discussion that's I guess separate and apart from whether one favors or opposes the death penalty.

CONAN: Jason, thank you very much for the call.

JASON: My pleasure, thank you.

CONAN: And Representative Ralston, thank you for you time, we appreciate it.

State Representative RALSTON: Thank you very much.

CONAN: David Ralston is a Republican in the Georgia State House and he joined us from his office in Atlanta, Georgia today. We're discussing doctors and the death penalty. And you're listening to TALK OF THE NATION from NPR News.

For another perspective we turn now to Ken Baum(ph) a lawyer with the firm Bartlett, Beck, Herman, and Palinchar(ph). And Scott. We'll throw Scott in there too. Who focuses on medical litigation. He's also an M.D. who believes doctors should be allowed to assist in lethal injections.

He's with us now by phone from Santa Monica, California. That's a long law firm title you've got there.

Dr. KEN BAUM (Attorney and M.D., California): Well, try to give everybody a little bit of credit.

CONAN: There you go. As I understand it, you oppose the death penalty but still think doctors should be allowed to assist, I assume voluntarily.

Dr. BAUM: Correct. Correct on both parts. I do personally oppose the death penalty, but despite that I feel that if a condemned inmate wants to have oversight by a trained physician and a physician is willing to provide that sort of care, that both parties should be allowed to make that decision and the physician should be allowed to participate.

CONAN: Are you concerned that lethal injections be administered without pain?

Dr. BAUM: Ultimately that is my concern, that if we're going to have this process, that the process be as humane as possible. And as the pediatrician Jason mentioned, that creates a tension itself because we have to ask ourselves who are we trying to make this more palatable for, the executed or the public. Regardless, the fact is nobody is sentenced to a botched execution in the United States and we know from episode after episode that without competent oversight the condemned are exposed to unnecessary pain and suffering.

And given the goals of medicine, which are in my mind to treat or cure when possible, but to provide comfort care when that is all that can be offered, I think it is entirely appropriate, even for an anti-death penalty physician, to be in the execution chamber assisting and trying to minimize pain and suffering.

CONAN: And what about that idea of first do no harm?

Dr. BAUM: An interesting point, harkening back to the Hippocratic oath, but in my mind it's really a straw man that's put up by everyone, doctors, courts, the public, when it suits them. But we typically ignore the Hippocratic Oath. You have to remember that the oath is approximately 25 hundred years old. It contains many edicts such as never breach patient confidentiality, which ironically California has developed a case law saying a doctor must breach confidentiality under certain circumstances. It restricts a practice of medicine to men. It instructs physicians to teach their trade to others for free.

There are many other elements of the Hippocratic Oath that we flat out ignore. And I think the point is that the oath serves a purpose. It is a sort of symbolic rite of passage that sensitizes young physicians to the fiduciary profession that they're entering. It reminds them that the patients always come first. But given its historical context and given that it's at odds with, you know, just numerous established modern doctrines and medical ethics, it is not meant to be taken literally, certainly not today. And to blindly cling to one do no harm mandate in the face of so many other clearly inapplicable edicts without at least critically examining its justification, is doing a disservice both to the profession and to the public.

CONAN: Joanne?

Ms. SILBERNER: I would just add, though, that the AMA's weekly newspaper just had an article recently about how many medical schools have changed the oath to make it more up-to-date. So it's not read literally at every single medical school in the country. A number of them have updated it.

Dr. BAUM: That's an excellent point. In fact, as late as the mid-90s there was only one American medical school that still administered the classic version of the oath, and less than 50 percent used any form of the Hippocratic Oath at all.

CONAN: Hmm. We have to take another break. Ken Baum, can you stay with us?

Dr. BAUM: Certainly.

CONAN: All right. Ken Baum is going to stay with us. Joanne Silberner will be here as well. If you'd like to join the conversation, give us a call. 800-989-8255, 800-989-TALK. Our email address is talk@npr.org. We'll also be talking after the break about Toledo and terrorism, and we'll check in with Geoffrey Calkins of the Memphis commercial appeal with another dispatch from the Olympic Games in Turin. I'm Neal Conan, you're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Right now we're discussing executions and whether doctors should participate. Our guest is Joanne Silberner, NPR Science Desk reporter. And also with us is Ken Baum, a lawyer with the law firm of Bartlett, Beck, Herman, Palinchar and Scott, which focuses on medical litigation. He's also an M.D.

And let's get another caller on the line. And this is Barbara. Barbara's calling from Ann Arbor.

BARBARA (Caller): Hello. Thank you for taking my call.

CONAN: Sure. Go ahead.

BARBARA: I'm a critical care nurse and the only staff member of our medical ethics, the only staff nurse of our medical ethics committee. And I think that at least part of this stems from just in general the doctor's total discomfort with death and the whole thing of, you know, do no harm and the Hippocratic Oath. Often times, what I see in the patients who are actually dying is we do more harm to them.

CONAN: Hmm.

BARBARA: From the things we do with technology to keep them alive and often doctors won't even address it with the families.

CONAN: So that they're...

BARBARA: The project, I've been working on this project for two years, on how to communicate these issues to the families. And our biggest, biggest block has been the doctors.

CONAN: I wonder, Ken Baum, what your reaction is to that?

Dr. BAUM: I would tend to agree, actually. I think that too often physicians see their role as zealous advocates for the preservation of life, when in fact, the goal should be, again, in cases where life cannot be preserved, whether you're talking the execution chamber or a terminally ill patient in a hospital bed, the goal should be to provide whatever comfort care one can provide to minimize suffering in that greatest hour of need.

And I think that's what Barbara's getting at. That too often physician's see their role as this paramount to do no harm and to prolong life, and in fact in doing so we often increase pain and suffering.

CONAN: So...

BARBARA: And also I think that, my position on this is that it should be a personal choice whether that doctor ethically wants to be involved in that execution or not. And I think there are people who are--feel one way about it that are trying to impose their ethical beliefs on other people.

Dr. BAUM: And I would like to echo that. Again, I think that a patient or condemned inmate should have the choice to request that care. I think the individual physician should have the personal choice whether or not to provide it, but I don't think that any individual physician should be forced to participate against his or her personal beliefs.

On the flip side, because reasonable people can disagree on issues like this, what I think is inappropriate is for some third party, whether it's a medical association or any sort of lobbying group, to unilaterally dictate personal ethics to the individual physician.

CONAN: And your description earlier of the execution chamber as a place where life cannot be extended, some people might argue with that as well.

Dr. BAUM: Well, that's what's so interesting about the current situation we're facing in California. Having an order that a physician must participate in order for the execution to go forward does affectively make an end run, assuming that no individual physician is willing to step forward. And in a case like that I personally again believe that without competent oversight it is cruel and unusual punishment because you should not be subjected to unnecessary pain and suffering, even in the execution chamber. And if no individual physician steps forward in this case, I do not think that the execution should go forward.

Ms. SILBERNER: Could I ask you...

BARBARA: They may not want to participate because they're afraid of sanctions.

Ms. SILBERNER: Could either of you, you're both medical professionals. Could you do it yourself?

Dr. BAUM: I'll let Barbara answer first.

BARBARA: I probably could. I probably could. I frequently administer, and I'm not saying that the medications that I administer result in that patient's death. It makes their death more comfortable, and I feel very strongly about comfort when a person is dying, whether, you know, regardless of whether they are a criminal. I think they still should be comfortable. And I, my personal stance on capital punishment is that I believe in it. So I, you know, would be able to do that.

NEAL CONAN, host:

And I, before Ken Baum..

BARBARA: But I wouldn't be doing it in malice. I would be doing it to keep that patient comfortable.

CONAN: And Ken Baum, though he has an M.D., is not a practicing physician. But go ahead, Ken.

Dr. BAUM: That's exactly right, Neal. I would not be allowed to participate as a licensed physician, because while I have the M.D., I am not licensed because I do not practice.

Now, I guess the more interesting question is, if I were licensed to practice medicine, would I participate? I think that, I think that I probably would. Again, not for the purpose of facilitating the execution, but again, I approach this from the patient's standpoint. Because I think it's the patient's interests and the patient's wishes that are paramount here. And if that patient wants competent oversight, I think they're entitled to it.

CONAN: Barbara, thank you very much for the call. We appreciate it.

BARBARA: Thank you.

CONAN: And Ken Baum, thank you for your time today.

Dr. BAUM: My pleasure. Thank you very much.

CONAN: Ken Baum, a lawyer with the law firm, Bartlit, Beck, Herman, Palenchar and Scott, also a medical doctor, as we heard. He joined us by phone from Santa Monica in California.

And Joanne Silberner was here with us in 3-A. Thanks very much.

Ms. SILBERNER: Thank you, Neal.

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