Case: North Carolina Department of Correction v. North Carolina Medical Board

On January 18, 2007, the North Carolina Medical Board (NCMB) issued a Position Statement to express their views regarding the participation of North Carolina's licensed physicians in executions. NCMB stated their belief that any physician participation in capital punishment was a violation of medical ethics. But since NCMB recognized that North Carolina law (specifically N.C. Gen. Stat. § 15-190) required the presence of "the surgeon or physician of the penitentiary" during the execution of condemned inmates, they would not discipline licensees for "merely being present during an execution" in conformity with the statute. The NCMB then states, however, that "any physician who engages in any verbal or physical activity, beyond the requirements" of the state law, and any physician that "facilitates the execution" would be "subject to disciplinary action." The Statement specifies that forbidden physician participation would include prescribing or administering tranquilizers and other psychotropic agents and medications, monitoring vital signs in any way, attending or observing the execution as a physician, rendering of technical advice regarding the 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.

On February 6, 2007, the Governor and Council of State for North Carolina approved a revised execution protocol, which required the participation of a licensed physician, who was required to "monitor the essential body functions of the condemned inmate" and to "notify the Warden immediately upon his or her determination that the inmate shows no signs of undue pain or suffering."

On March 6, 2007, the North Carolina Department of Corrections (NCDC) filed a lawsuit under state law against the North Carolina Medical Board in the Wake County Superior Court. The NCDC asked the court to enjoin the NCMB from taking disciplinary action against licensed physicians who participated in executions in compliance with the state law. They also asked the court to declare that a judicial execution was not a medical procedure, and therefore that it was outside the authority of the NCMB to oversee or regulate, despite the involvement of a licensed physician.

On the same day, the NCDC also filed a Notice of Inability to Carry Out Sentence of Court, informing the court that they would not be able to obey the court's order to execute Allen Richard Holman on March 9, 2007, due to the fact that no physician was willing to risk being subject to disciplinary action for participating in the procedure. After receiving this notice, the court canceled the execution and ordered that it not be rescheduled until all the requirements of the protocol could be met.

The Medical Board moved to dismiss the case, but Superior Court Judge Donald W. Stephens denied that motion on September 21, 2007. Judge Stephens found that the Board did not have the authority to "prohibit doctors from performing specific statutory tasks," such as assisting in executions. Judge Stephens also granted the NCDC's request for an injunction of the Board's policy.

The Board sought discretionary review of Judge Stephens' order from the North Carolina Supreme Court, which agreed to hear the case. However, on May 1, 2009, the Supreme Court affirmed Judge Stephens' order on the rationale that the North Carolina legislature had not intended such a conflict between the statutory powers of the Medical Board and the state's execution protocol. 363 N.C. 189.

Although the Clearinghouse does not have access to the docket, the case appears to have ended after the state supreme court opinion. Notably, for unrelated reasons, North Carolina has not carried out any executions since 2006.