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Georgia Prison Doctor Sued for Illegally Importing Drugs Used to Execute Troy Davis
by David M. Reutter
On June 20, 2011, the Southern Center for Human Rights (SCHR) filed a complaint with the Georgia Composite Medical Board against Dr. Carlo Musso, seeking the revocation or suspension of his medical license for illegally importing and distributing sodium thiopental, one of the three drugs used in carrying out lethal injection.
Doctor involvement in executions is a hot button issue for opponents of the death penalty, who say that participation of physicians is unethical. [See: PLN, Aug. 2010, p.42; May 2009, pp.42 and 18; July 2008, p.28].
“I think it’s a totally improper role for a physician to be complicit with the state in killing people because it’s not the role of a doctor to do that,” says Dr. Arthur Zitrin, a professor emeritus of psychiatry at the New York University School of Medicine. “The role of a doctor is to heal and to preserve life, whenever there is a possibility of doing so.”
Activists point out that doctor participation violates the Hippocratic Oath and the American Medical Association’s (AMA) Code of Ethics, which provides: “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.”
"There is this perception that many people, including judges, have that because of the AMA ethical code, doctors can’t participate and won’t participate in executions when the reality – and we’ve learned this through the legal cases that have been brought – is that doctors do participate and are willing to participate,” said Ty Alper, associate director of the University of California, Berkeley School of Law’s Death Penalty Clinic. “The AMA guidelines are just that – guidelines – and not enforceable in most circumstances.”
The AMA has revoked one physician’s membership “for participation in execution by lethal injection.” The AMA’s policy allows doctors to attend in a non-physician role or to certify a condemned prisoner’s death after it has been determined by someone else, but any other death-chamber activity would violate the obligation to do patients no harm.
Efforts to have state medical boards discipline doctors for participating in executions have failed. A group of California doctors lost their effort to discipline doctors in 1996. In 2005, a Georgia court dismissed for lack of standing a lawsuit that sought to force that state’s medical board to discipline Dr. Hothur V. Sanjeeva Rao for assisting in executions. Finally, in 2009, the North Carolina Supreme Court overturned a policy by that state’s medical board that would have disciplined doctors for participating in executions.
The Georgia lawsuit raised the cost of executions. Before that suit, it paid doctors $850 per execution. To protect themselves from possible license challenges, doctors had to purchase liability insurance. This is where Dr. Musso entered the fray.
Musso owns two companies: CorrectHealth and Rainbow Medical Associates (Rainbow). The contract Rainbow signed with Georgia’s Department of Corrections (GDOC) makes seven of its ten doctors available for executions, at a cost of $18,000 per execution.
“If an execution is going to be carried out, it’s going to be carried out. Our role is to make sure it is to be performed with the least amount of pain and suffering as possible. That’s my duty,” said Musso, who participated in executing prisoner Timothy Don Carr in 2005. “If health care professionals were not involved in the process, then there very well may be undue suffering to inmates that occurs during execution, and I think that’s a greater concern.
The SCHR complaint takes aim at a different role Musso took to assist in executions. “This complaint is not about Dr. Musso’s role at state-sponsored executions – this is a complaint about the law and whether the person importing and distributing the drug is properly licensed. Dr. Musso was not,” says SCHR attorney, Jessica Oates.
States have been scrambling to obtain quantities of sodium thiopental since Hospira, the only American manufacturer of the drug, exited the market in January 2011. [See: PLN, Nov. 2012, p.44; June 2011, p.1]. GDOC secured a supply of the drug from London based Dream Pharma, which operated out of the back of a driving school. Amid questions about how that supply was imported into the U.S., the DEA seized the supply in March 2011.
The SCHR’s complaint charges Dr. Musso violated state and federal laws by helping two states obtain sodium thiopental for use in executions. In October 2010, Rainbow sold fifty 500-milligram units of the drug to the Tennessee Department of Corrections (TDOC) for $1,551 at $31.02 per unit. Then, in February 2011, CorrectHealth sold eighteen grams of the drug to the Kentucky Department of Corrections (KDOC) for $90 per gram, or 50% above the cost to TDOC.
Both supplies of those drugs were imported from England via Dream Pharm. After the DEA seized Georgia’s supply of sodium thiopental, it followed the trial that led to KDOC and TDOC obtaining their supply, and it seized those supplies in April 2011.
A person or organization may not distribute a controlled substance without first registering with both the Georgia Board of Pharmacy and the DEA. Neither of Musso’s companies, nor himself, are registered with those agencies to import or distribute sodium thiopental, a schedule III controlled substance.
Because Musso’s actions in that regard are felonies under state and federal law, SCHR urged Georgia’s medical board to exercise its jurisdiction to discipline Musso. “The Board should revoke Dr. Musso’s license to practice medicine; at the very least, it should suspend his license pending investigation into these matters,” Oats wrote in SHRC’s complaint. “This is a complaint about the law. That the drug at issue in this case was used in executions by lethal injection is incidental.”
That GDOC was able to obtain a supply of sodium thiopental for the September 21, 2011 execution of Troy Davis was not incidental to him or his supporters. “Troy Davis became an incredible symbol of everything that is broken, everything that is wrong” with capital punishment in the U.S., said Larry Cox, executive director of Amnesty International’s U.S. branch.
Davis was convicted of the August 19, 1989 murder of off-duty Savannah police officer Mark MacPhail, who responded to the cry of help by Larry Young, a homeless man. Young had walked away from Sylvester “Redd” Coles after Coles demanded a beer from him. As Young walked away, he was pistol whipped in the head. When MacPhail came running to Young’s aid, he was shot and killed by the same man who attacked Young, a fact all witnesses agreed upon.
The next day, Coles went to a police station with his lawyer and said Davis was the shooter. At Davis’ trial, Coles admitted he was arguing with Young and was carrying a .38 revolver, the exact type of gun that killed MacPhail. A weapon was never recovered from Davis, and Coles said he lost his gun.
During the appeals process, seven of the nine state trial witnesses contradicted their testimony or admitted that testimony was false. Several trial informants recanted. Up until his execution, Davis maintained his innocence.
“I am innocent. The incident that happened that night is not my fault,” Davis said as he was strapped to the death chamber’s gurney. He told the MacPhail family, who was present for the execution, “he was sorry for their loss but said he was not personally responsible for the death of their son, father, and brother,” said Jon Lewis of WSB Radio in Atlanta.
Looking directly to MacPhail’s brother and son, Davis said, “All I can ask is that you look deep into this case so you can really find the truth.” To prison officials he said, “May God have mercy on your souls. May God bless your souls.”
Following Davis’ execution, NAACP President Benjamin Jealous tweeted a quote from Davis, “This movement began before I was born, it must continue and grow stronger…until we abolish the death penalty once and for all.”
Sources: Atlanta Journal-Constitution, USA Today, www.huffingtonpost.com, NAACP, Washington Post, www.amendnews.org, The Atlantic
On June 20, 2011, the Southern Center for Human Rights (SCHR) filed a complaint with the Georgia Composite Medical Board against Dr. Carlo Musso, seeking the revocation or suspension of his medical license for illegally importing and distributing sodium thiopental, one of the three drugs used in carrying out lethal injection.
Doctor involvement in executions is a hot button issue for opponents of the death penalty, who say that participation of physicians is unethical. [See: PLN, Aug. 2010, p.42; May 2009, pp.42 and 18; July 2008, p.28].
“I think it’s a totally improper role for a physician to be complicit with the state in killing people because it’s not the role of a doctor to do that,” says Dr. Arthur Zitrin, a professor emeritus of psychiatry at the New York University School of Medicine. “The role of a doctor is to heal and to preserve life, whenever there is a possibility of doing so.”
Activists point out that doctor participation violates the Hippocratic Oath and the American Medical Association’s (AMA) Code of Ethics, which provides: “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.”
"There is this perception that many people, including judges, have that because of the AMA ethical code, doctors can’t participate and won’t participate in executions when the reality – and we’ve learned this through the legal cases that have been brought – is that doctors do participate and are willing to participate,” said Ty Alper, associate director of the University of California, Berkeley School of Law’s Death Penalty Clinic. “The AMA guidelines are just that – guidelines – and not enforceable in most circumstances.”
The AMA has revoked one physician’s membership “for participation in execution by lethal injection.” The AMA’s policy allows doctors to attend in a non-physician role or to certify a condemned prisoner’s death after it has been determined by someone else, but any other death-chamber activity would violate the obligation to do patients no harm.
Efforts to have state medical boards discipline doctors for participating in executions have failed. A group of California doctors lost their effort to discipline doctors in 1996. In 2005, a Georgia court dismissed for lack of standing a lawsuit that sought to force that state’s medical board to discipline Dr. Hothur V. Sanjeeva Rao for assisting in executions. Finally, in 2009, the North Carolina Supreme Court overturned a policy by that state’s medical board that would have disciplined doctors for participating in executions.
The Georgia lawsuit raised the cost of executions. Before that suit, it paid doctors $850 per execution. To protect themselves from possible license challenges, doctors had to purchase liability insurance. This is where Dr. Musso entered the fray.
Musso owns two companies: CorrectHealth and Rainbow Medical Associates (Rainbow). The contract Rainbow signed with Georgia’s Department of Corrections (GDOC) makes seven of its ten doctors available for executions, at a cost of $18,000 per execution.
“If an execution is going to be carried out, it’s going to be carried out. Our role is to make sure it is to be performed with the least amount of pain and suffering as possible. That’s my duty,” said Musso, who participated in executing prisoner Timothy Don Carr in 2005. “If health care professionals were not involved in the process, then there very well may be undue suffering to inmates that occurs during execution, and I think that’s a greater concern.
The SCHR complaint takes aim at a different role Musso took to assist in executions. “This complaint is not about Dr. Musso’s role at state-sponsored executions – this is a complaint about the law and whether the person importing and distributing the drug is properly licensed. Dr. Musso was not,” says SCHR attorney, Jessica Oates.
States have been scrambling to obtain quantities of sodium thiopental since Hospira, the only American manufacturer of the drug, exited the market in January 2011. [See: PLN, Nov. 2012, p.44; June 2011, p.1]. GDOC secured a supply of the drug from London based Dream Pharma, which operated out of the back of a driving school. Amid questions about how that supply was imported into the U.S., the DEA seized the supply in March 2011.
The SCHR’s complaint charges Dr. Musso violated state and federal laws by helping two states obtain sodium thiopental for use in executions. In October 2010, Rainbow sold fifty 500-milligram units of the drug to the Tennessee Department of Corrections (TDOC) for $1,551 at $31.02 per unit. Then, in February 2011, CorrectHealth sold eighteen grams of the drug to the Kentucky Department of Corrections (KDOC) for $90 per gram, or 50% above the cost to TDOC.
Both supplies of those drugs were imported from England via Dream Pharm. After the DEA seized Georgia’s supply of sodium thiopental, it followed the trial that led to KDOC and TDOC obtaining their supply, and it seized those supplies in April 2011.
A person or organization may not distribute a controlled substance without first registering with both the Georgia Board of Pharmacy and the DEA. Neither of Musso’s companies, nor himself, are registered with those agencies to import or distribute sodium thiopental, a schedule III controlled substance.
Because Musso’s actions in that regard are felonies under state and federal law, SCHR urged Georgia’s medical board to exercise its jurisdiction to discipline Musso. “The Board should revoke Dr. Musso’s license to practice medicine; at the very least, it should suspend his license pending investigation into these matters,” Oats wrote in SHRC’s complaint. “This is a complaint about the law. That the drug at issue in this case was used in executions by lethal injection is incidental.”
That GDOC was able to obtain a supply of sodium thiopental for the September 21, 2011 execution of Troy Davis was not incidental to him or his supporters. “Troy Davis became an incredible symbol of everything that is broken, everything that is wrong” with capital punishment in the U.S., said Larry Cox, executive director of Amnesty International’s U.S. branch.
Davis was convicted of the August 19, 1989 murder of off-duty Savannah police officer Mark MacPhail, who responded to the cry of help by Larry Young, a homeless man. Young had walked away from Sylvester “Redd” Coles after Coles demanded a beer from him. As Young walked away, he was pistol whipped in the head. When MacPhail came running to Young’s aid, he was shot and killed by the same man who attacked Young, a fact all witnesses agreed upon.
The next day, Coles went to a police station with his lawyer and said Davis was the shooter. At Davis’ trial, Coles admitted he was arguing with Young and was carrying a .38 revolver, the exact type of gun that killed MacPhail. A weapon was never recovered from Davis, and Coles said he lost his gun.
During the appeals process, seven of the nine state trial witnesses contradicted their testimony or admitted that testimony was false. Several trial informants recanted. Up until his execution, Davis maintained his innocence.
“I am innocent. The incident that happened that night is not my fault,” Davis said as he was strapped to the death chamber’s gurney. He told the MacPhail family, who was present for the execution, “he was sorry for their loss but said he was not personally responsible for the death of their son, father, and brother,” said Jon Lewis of WSB Radio in Atlanta.
Looking directly to MacPhail’s brother and son, Davis said, “All I can ask is that you look deep into this case so you can really find the truth.” To prison officials he said, “May God have mercy on your souls. May God bless your souls.”
Following Davis’ execution, NAACP President Benjamin Jealous tweeted a quote from Davis, “This movement began before I was born, it must continue and grow stronger…until we abolish the death penalty once and for all.”
Sources: Atlanta Journal-Constitution, USA Today, www.huffingtonpost.com, NAACP, Washington Post, www.amendnews.org, The Atlantic
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