- The Washington Times - Thursday, December 7, 2006

BALTIMORE — A federal judge considering challenges to Maryland’s lethal injection procedure wants the state to explore whether more highly trained medical personnel, such as general surgeons and anesthesiologists, would be willing to take part in executions.

U.S. District Judge Benson E. Legg is presiding over a civil case brought by death row inmate Vernon Evans Jr. Evans’ attorneys contend that the personnel who carry out lethal injections are not qualified to know whether an inmate is properly anesthetized before being put to death.

Attorneys for Evans have argued that his veins are so damaged from intravenous drug use that current execution protocol would subject him to “an unnecessary risk of unconstitutional pain and suffering.”

His attorneys have asked the court to require the state to add a general surgeon and either an anesthesiologist or a certified nurse anesthetist to the lethal injection team.

Lawyers representing the state have argued that such specialists are not needed, because an execution is not a medical procedure and current execution team members are qualified to carry out the process.

The state also has argued that finding such specialists would be difficult. The American Medical Association, the American Society of Anesthesiologists and the American Nurses Association discourage members from participating in lethal injections.

Evans’ attorneys have argued that there are medical specialists willing to take part. They have cited a study in the Annals of Internal Medicine that found 19 percent of surveyed physicians expressed a willingness to inject the drugs. The 2001 study also found that 41 percent of the doctors surveyed would perform at least one of the AMA-prohibited actions.

Death row prisoners nationwide have mounted challenges to lethal injection, the preferred method of execution in 37 states.

Doctors have participated in executions in other states, but lawyers representing the state have pointed out that some of those doctors have faced repercussions from their involvement.

In California, an execution was postponed indefinitely in February after two anesthesiologists backed out because of ethical concerns that they might have to advise the executioner if the inmate woke up or appeared to suffer pain.

Judge Legg, writing in an order signed Friday, said he must balance the potential harm to the plaintiff, if the relief is withheld, against the burden to the defendant, if the relief is granted.

“To do this, the court must assess how difficult it would be for the state to recruit the medical specialists Evans advocates,” Judge Legg wrote.

Judge Legg is specifically asking the state to “explore the feasibility of recruiting the following specialists: a general surgeon, and either a [certified registered nurse anesthetist] or an anesthesiologist.”

During closing arguments in the case, Judge Legg told attorneys it would be in the state’s best interest to make sure executions run as smoothly as possible in order to avoid lawsuits.

Judge Legg wrote that he will hold a hearing in either open court or by teleconference to discuss the parameters of the search.

Judge Legg also wrote that the two sides will discuss whether the state should amend its written lethal injection protocol to specify a backup plan. The plan would address “certain contingencies” such as if the execution team cannot assess a condemned inmate’s peripheral veins.

Laura Mullally, an assistant attorney general, said no court or meeting date has been set.

“I’m not sure how the state is going to respond,” she said.

A. Stephen Hut Jr., who is representing Evans, did not return a call seeking comment.

Evans was sentenced to die for the murders of Scott Piechowicz and his sister-in-law, Susan Kennedy, in 1983. In February, Maryland’s Court of Appeals stayed his execution.

The state’s highest court heard arguments in four separate cases in May, including a claim that racial bias played a role in the decision by prosecutors to ask that he be executed. The court has yet to rule on those cases.

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