Thursday, August 21, 2014
COLUMBUS, Ohio (AP) — An anesthesiologist said he would no longer act as an expert witness for states defending their lethal injection methods, creating another hurdle for corrections departments scrambling to find workable execution systems.
Mark Dershwitz, a University of Massachusetts anesthesiologist and pharmacologist, was the expert called by Ohio in support of its new two-drug combination that led to a troubling 26-minute execution in January. The same drug combination led to a nearly two-hour execution in Arizona last month, raising more questions about the drugs.
Dershwitz was a leading expert for prison officials, having offered his opinions for 22 states and the federal government over the past decade.
He announced his decision to terminate his role in June, saying Ohio had jeopardized his standing with the American Board of Anesthesiology in a news release it issued about the Jan. 16 execution of Dennis McGuire.
State lawyers "discussed the events and observations of the McGuire execution with its expert witness, Dr. Mark Dershwitz," the Department of Rehabilitation and Correction said in that April 28 document.
The news release concluded that McGuire was put to death humanely, but "to allay any remaining concerns," the state also said it was upping the dosages of the two-drug method.
Anesthesiologists aren't allowed to play any role in the creation of an execution system. Dershwitz said there was no discussion: The state merely informed him of what happened.
"Although it is still too early to determine if there will be any permanent actions taken against me, the mistakes made by Ohio in the April press release could apparently happen again because of the lack of necessary review processes," Dershwitz said in an announcement he sent to several states June 18.
"I cannot take that chance and will therefore terminate my role as an expert witness on behalf of Ohio and all other states and the federal government."
The state acknowledged Dershwitz's version of the events in an April 30 follow-up letter to him obtained by The Associated Press, saying he had no role in the decision to increase the drug amounts.
But it was too late, Dershwitz said.
"I just realized that this is a risk that I choose not to take," he said in a phone interview late Tuesday.
Dershwitz's decision to stop testifying for state prison systems was first reported by The New Republic.
Ohio said it might need Dershwitz again as an expert witness in upcoming executions, according to the April 30 letter. The state declined to comment on Dershwitz' announcement or say whether it would obtain a new expert. In an October court filing in federal court in Ohio, Dershwitz said he was paid $450 "for review and report writing" and $3,500 a day for testimony.
His expert opinion had involved either written affidavits in support of certain methods or testimony in court, including cross-examination by defense attorneys representing condemned inmates. Judges in states including Florida, Ohio and Oklahoma have relied on his testimony in approving state execution methods.
Dershwitz said he stands by the expert witness testimony he gave last year about Ohio's two-drug protocol. He said he doesn't believe McGuire suffered, contrary to allegations in a civil rights lawsuit by McGuire's family, and the opinion of another anesthesiologist hired by the family's attorneys.
People commonly make snoring or sputtering sounds after being given anesthesia, Dershwitz said.
"Everything I said in Ohio is true and I stand behind it," he said.
The news of Dershwitz's retirement as a lethal injection expert witness comes as states are running out of execution drugs and having difficulty finding alternatives.
It will likely be difficult for any state to find an experienced anesthesiologist willing to argue some of the medical opinions that Dershwitz provided, said Dr. Mark Heath, a Columbia University anesthesiologist who often testifies for inmates challenging injection methods.
In particular, Dershwitz was an advocate for the two-drug method involving the sedative midazolam and the painkiller hydromorphone, the two drugs used in the prolonged Ohio and Arizona executions, Heath said.
"I think it's very unlikely that any other medical experts who are familiar with these drugs will be willing to support that drug combination," Heath said.
The states where Dershwitz provided expert opinion are Alabama, Arkansas, Arizona, California, Delaware, Florida, Georgia, Idaho, Kentucky, Maryland, Missouri, Montana, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Washington.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus