Expert dismisses execution risk

Chance of excruciating pain for Evans `medically implausible,' doctor says

October 12, 2006|By Jennifer McMenamin | Jennifer McMenamin,sun reporter

A medical expert testified yesterday that the scenario of death row inmate Vernon L. Evans Jr. remaining conscious but paralyzed and unable to signal his pain as he is executed is "medically implausible."

Attorneys for Evans have argued during a federal court challenge to the state's lethal injection procedures that unqualified members of Maryland's execution team trying to start an IV line in the prisoner's heroin-ravaged veins could leave him insufficiently sedated, and at particular risk of suffering excruciating pain during the execution. But Dr. Mark Dershwitz, an anesthesiologist at the University of Massachusetts Memorial Medical Center, testified yesterday that that was unlikely.

"Although I will accept that anything is possible, I would say it is very, very implausible," he testified of the scenario posed by Evans' lawyers and an expert anesthesiologist who testified on his behalf. They contend that the prisoner's compromised veins could rupture with the injection of the anesthesia, spilling the chemical into the surrounding tissue but allowing enough of the paralyzing and heart-stopping drugs into his circulatory system to cause great pain as he is put to death.

"That would require that the catheter is not in the vein for the administration of the [anesthetic] and then, seconds later, the catheter is back in the vein for the other two drugs," Dershwitz added.

The testimony came in response to questions from U.S. District Judge Benson E. Legg, who interrupted Assistant Attorney General Phillip M. Pickus' direct examination of the doctor to ask his own questions for nearly an hour. As Dershwitz explained why he found the scenario so improbable, the judge interrupted the witness as well, directing the court reporter to "mark" that specific stretch of testimony for his review.

But in an unusual twist, the witness to whom the judge listened so intently in the morning was briefly threatened with being disqualified from the case in the afternoon.

Dershwitz, who also teaches at the University of Massachusetts Medical School, declined to answer on cross-examination a question that has been posed to nearly every witness in the case.

"My views on the death penalty are not important and not relevant to the case, and I'd rather not say," Dershwitz told Todd C. Zubler, one of the attorneys representing the death row inmate.

Pickus, an attorney representing the state, told the judge that a doctor going on the record in support of the death penalty could face "serious ramifications" in his medical career.

"That strikes me as highly implausible," Zubler countered, adding that Dershwitz's willingness to offer expert testimony on behalf of a dozen states and the federal government in lethal injection lawsuits similar to the one filed by Evans indicates more about his views of capital punishment than any single statement from the witness stand could.

He also pointed out that Dershwitz had directed the attorneys representing the state to pose the same question to Evans' expert anesthesiologist and even characterized it in an e-mail to the lawyers as "the million-dollar question." Zubler asked the judge to strike all of the doctor's testimony, arguing that his refusal to answer the question was "indicative of bias." If his testimony is allowed, the lawyer told the judge, it should be given less weight.

Legg resolved the situation by fashioning a set of questions that he said explored Dershwitz's actions regarding the death penalty while keeping private his personal views.

Dershwitz was asked whether he had ever belonged to or contributed time or money to any groups that advocate a position on capital punishment. He was also asked whether he had ever written to a newspaper or politician regarding the death penalty and if he had ever given any public speeches on the subject.

He answered no to each question.

Also on cross-examination, Dershwitz acknowledged an apparent typographical error in the state's execution protocol regarding the quantity administered of the second drug -- which paralyzes the inmate's muscles, leaving him unable to move or breathe.

The doctor also testified that he does not consider lethal injection to be a medical procedure, eliminating the need for anesthesiologists or other similarly qualified professionals to be involved, as Evans' attorneys have requested and as judges in Missouri and California have ordered.

Dershwitz mentioned basic cardiopulmonary resuscitation as an example of when nondoctors are expected and trusted to determine whether someone is unconscious, telling the judge that the first step of CPR is to shake the person and ask if he or she is OK.

"The certification of consciousness is something that the Red Cross believes can be taught to lay people," the doctor testified.

On cross-examination, however, Dershwitz acknowledged that he had previously written that while it was reasonable to require anesthesiologists and nurse anesthetists to monitor a patient's consciousness during surgery, that nurses, emergency medical technicians or other paraprofessionals "under the direction of a physician" were sufficient for the same task during an execution.

The only doctor involved in Maryland executions testified last month that her role has been limited to pronouncing death and that she has played no part in the execution procedure.

The case is scheduled to continue today.

Evans, 57, was sentenced to death 14 years ago for the contract killings of two Pikesville hotel employees in 1983.

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