Nc Dept. of Correction v. Nc Medical Bd.

• Decision Date: 01 May 2009
• Docket Number: No. 51PA08.,51PA08.
• Parties: NORTH CAROLINA DEPARTMENT OF CORRECTION; Theodis Beck, Secretary of the North Carolina Department of Correction, in his official capacity; and Gerald J. Branker, Warden of Central Prison, in his official capacity v. NORTH CAROLINA MEDICAL BOARD.
• Court: North Carolina Supreme Court

675 S.E.2d 641

363 N.C. 189

NORTH CAROLINA DEPARTMENT OF CORRECTION; Theodis Beck, Secretary of the North Carolina Department of Correction, in his official capacity; and Gerald J. Branker, Warden of Central Prison, in his official capacity v. NORTH CAROLINA MEDICAL BOARD.

No. 51PA08.

Supreme Court of North Carolina.

May 1, 2009.

On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of an amended order granting plaintiffs' request for declaratory relief and denying defendant's motion to dismiss entered on 5 October 2007 by Judge Donald W. Stephens in Superior Court, Wake County. On 29 April 2008, the Supreme Court allowed defendant's petition for discretionary review as to additional issues. Heard in the Supreme Court 18 November 2008.

Roy Cooper, Attorney General, by Thomas J. Pitman, Special Deputy Attorney General, and Joseph Finarelli, Assistant Attorney General, for plaintiff-appellees.

D. Todd Brosius and Thomas W. Mansfield, Raleigh, for defendant-appellant.

Nelson Mullins Riley & Scarborough, LLP, by Wallace C. Hollowell, III, Raleigh, for American Medical Association, amicus curiae.

Timothy C. Miller, Dallas, TX, for Federation of State Medical Boards of the U.S., Inc., amicus curiae.

Womble Carlyle Sandridge & Rice, PLLC, by Sarah L. Buthe, Raleigh, for Physicians for Human Rights, amicus curiae.

BRADY, Justice.

In January 2007 the North Carolina Medical Board (Medical Board) issued a Position Statement on physician participation in executions. This statement prohibits physicians licensed to practice medicine in North Carolina, under the threat of disciplinary action, from any participation other than certifying the fact of the execution and simply being present at the time of the execution. Because of this Position Statement, physicians have declined to participate in executions in any manner, which has resulted in a de facto moratorium on executions in North Carolina. To rectify this situation, plaintiffs North Carolina Department of Correction, Theodis Beck, and Marvin Polk¹ brought suit seeking injunctive relief prohibiting the Medical Board from taking any disciplinary action against physicians for participating in an execution and a declaratory judgment delineating the rights and obligations of plaintiffs and the Medical Board with regards to executions.

This case presents four issues: First, whether a justiciable case or controversy exists between plaintiffs and the Medical Board; second, whether any such case or controversy is ripe for decision; third, whether the trial court impermissibly made a finding of fact without accepting evidence from defendant; and fourth, whether the Position Statement is inconsistent with the manifest intent of the General Assembly in enacting N.C.G.S. § 15-190, which requires a physician to be present at all executions. We hold that plaintiffs have standing, that this case is ripe for decision, that the trial court did not make an improper finding of fact, and that the Position Statement is inconsistent with N.C.G.S. § 15-190. Accordingly, we affirm the order of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Brown v. Beck

The genesis of the present controversy was a case in the United States District Court for the Eastern District of North Carolina challenging the constitutionality of North Carolina's lethal injection protocol. In Brown v. Beck, a condemned prisoner filed a 42 U.S.C. § 1983 action seeking injunctive relief to allow time to review the protocol and procedures the State intended to employ in his upcoming execution. 2006 WL 3914717 (E.D.N.C. Apr. 7, 2006) (No. 5:06CT3018 H). The plaintiff contended that the protocol and procedures the defendant agents of the Department of Correction intended to use were constitutionally deficient because of (1) their failure to "ensure that the personnel responsible for anesthesia are appropriately trained and qualified," and (2) their lack of "adequate standards for administering injections and monitoring consciousness." Id. at *1. The plaintiff also objected to the defendants' failure "to make adequate efforts to identify and address contingencies that may arise during execution." Id. Judge Malcolm J. Howard conditionally denied the plaintiff's motion for a preliminary injunction, but found that the plaintiff "has raised substantial questions as to whether North Carolina's execution protocol creates an undue risk of excessive pain." Id. at *8. The court found "that the questions raised could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution," and it ordered defendants to promptly "file with this Court and serve upon Plaintiff a notice setting forth the plans and qualifications of such personnel." Id. On 12 April 2006, the defendants submitted a revised execution protocol requiring the use of additional equipment to monitor the prisoner's level of consciousness and specifying that the equipment would be "observed and its values read by" both a licensed registered nurse and a licensed physician. On 17 April 2006, the court found the plaintiff's objections to the revised protocol to be without merit and denied the injunctive relief sought, stating, inter alia, that the court "is satisfied by the State's plan to use a licensed registered nurse and a licensed physician to monitor the level of plaintiff's consciousness." Brown (Apr. 17, 2006) (Final Order).

The Issuance of the Medical Board's Position Statement

In April 2006 the Medical Board received a complaint alleging that a physician was scheduled to participate in an execution. The Medical Board investigated this complaint and determined it was unfounded. Following other inquiries about the Medical Board's position on executions, the Medical Board issued the following Position Statement² in January 2007:

CAPITAL PUNISHMENT

The North Carolina Medical Board takes the position that physician participation in capital punishment is a departure from the ethics of the medical profession within the meaning of N.C. Gen.Stat. § 90-14(a)(6). The North Carolina Medical Board adopts and endorses the provisions of AMA Code of Medical Ethics Opinion 2.06 printed below except to the extent that it is inconsistent with North Carolina state law.

The Board recognizes that N.C. Gen.Stat. § 15-190 requires the presence of "the surgeon or physician of the penitentiary" during the execution of condemned inmates. Therefore, the Board will not discipline licensees for merely being "present" during an execution in conformity with N.C. Gen.Stat. § 15-190. However, any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen.Stat. § 15-190, that facilitates the execution may be subject to disciplinary action by this Board.

Relevant Provisions of AMA Code of Medical Ethics Opinion 2.06

An individual's opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.

In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.

The following actions do not constitute physician participation in execution: (1) testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case, or testifying as to medical diagnoses as they relate to the legal assessment of competence for execution; (2) certifying death, provided that the condemned has been declared dead by another person; (3) witnessing an execution in a totally nonprofessional capacity; (4) witnessing an execution at the specific voluntary request of the condemned person, provided that the physician observes the execution in a nonprofessional capacity; and (5) relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution.

Official Change in Protocol

On 25 January 2007, a preliminary injunction staying all executions was entered by the Superior Court, Wake County, in a case separate from the case at bar. The Superior Court concluded in its order that the earlier change in protocol made by the Department of Correction and Warden Polk must be submitted to and approved by the Governor and Council of State. Thus, on 6 February 2007, the ...