Oklahoma Department of Corrections / AP

Oklahoma: Doctors have no duty of care in executions

The state does not believe the doctor who botched Clayton Lockett’s execution should be investigated for negligence

In its response a brief filed by a physicians' group asking that the doctor who botched Clayton Lockett’s April 2014 execution be named and investigated, the state of Oklahoma said a doctor carrying out executions is not acting as a doctor, even though the state requires a doctor to do the job.

"Even if some of the actions are medical in nature, it does not follow that doctors participating in executions are engaged in medical practice," reads the response, filed on Tuesday at the federal appeals court in Denver.

The response states, "Doctors who participate in executions do not have a physician-patient relationship with the inmate that is being executed."

"Obviously, we're not surprised that the state of Oklahoma opposed the amicus memorandum that we filed on behalf of the doctors," said Katherine Toomey, an attorney at Lewis Baach, the firm representing the physicians' group, Doctors for the Ethical Practice of Medicine.

"We were pretty surprised that their response went as far as it did, in terms of basically saying that the doctor has no duty to act competently in the context of a lethal injection execution, because presumably, the purpose of having doctor participate is to make sure that the lethal injection is administered correctly and painlessly and efficiently," she said.

According to an executive summary by the Oklahoma Department of Public Safety, it took 51 minutes for the physician to place an IV in Lockett.

The state’s position, Toomey said, "is that the doctor could do anything, cause any amount of pain, and there won't be any recourse at all."

Oklahoma's assistant attorney general's office did not respond to Al Jazeera's questions about the state's response.

The Eighth Amendment, Toomey noted, prohibits cruel and unusual punishment.

The death penalty: How we kill

Jeffrey Fagan, who teaches courses on criminal law and capital punishment at Columbia University Law School, said that when it comes to the Supreme Court, justices can be "ambivalent about the requirements under the Eighth Amendment that pain be minimized if not avoided." 

Fagan points to the case of Glossip v. Gross, in which death-row inmate Richard Glossip argued that use of a midazolam cocktail constituted cruel and unusual punishment. The court ruled against him

"The Glossip majority also did some bizarre reasoning about the science of pain and why the uncertainty in that science should lead to a procedural default — meaning that so long as we follow good procedures, the state has done what it can to avoid an Eighth Amendment violation," said Fagan.

The pain Lockett experienced could have been avoided if the executing physician had properly administered the anesthetic.

 "It was pretty unambiguous that the state was going to do something that — but for effective anesthesia — would be excruciating," said Mark Heath, an anesthesiologist at the Columbia University College of Physicians and Surgeons.

"I would build the duty around the requirement that effective anesthesia be provided," he said. "When you're anesthetizing somebody, that's a medical procedure. The anesthesia doesn't kill ... It's the last drug that's given that kills you. If they hadn't anesthetized him, he'd be just as dead."

The doctor, he added, failed to administer anesthetic via effective intravenous access, failed to do a proper consciousness check and ordered that the painful lethal drugs be administered while Lockett was still conscious.  

"He did nothing right," Heath said.

Doctors for the Ethical Practice of Medicine is concerned about the competence of a doctor who can't seem to place an IV and monitor it after placement. 

Toomey pointed out that a single mistake doesn’t mean the doctor in question is a bad doctor but that the concerns are that no one knows if this particular doctor has had previous problems and — given that he won’t be named and investigated — future patients will likewise remain unaware of his record.

Lockett's family has field a lawsuit against Oklahoma, alleging that his execution constituted torture and "was a violation of the Eighth Amendment and ... elementary concepts of human decency."

The case is pending at the 10th Circuit Court of Appeals in Denver.

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