Seven times in two hours a masked medical doctor stood over inmate Joseph Wood with his back to the execution witnesses.
The unknown doctor was touching Wood’s eye with a cotton swab and sticking a tongue depressor down his throat to look for reactions that come with consciousness.
A Stanford University neurologist said a doctor couldn’t have known with certainty if Wood was suffering as he lay gasping and snorting. Nor could he have determined if he was brain dead by a simple examination. But a Harvard professor who has testified in several death-penalty cases said Wood might have felt the effects similar to suffocation.
That matters because a federal judge was trying to decide whether to stop the July 23 execution using information coming from the death chamber as Wood’s vital signs dwindled and the state declared him brain dead.
The state is going to have to decide whether its execution policies are proper. Gov. Jan Brewer has ordered a review of the process that could determine the fate of 119 prisoners on death row awaiting their turn at the needle.
Dr. David Waisel, an associate professor at Harvard Medical School and an anesthesiologist, said Wood might have had the sensation a person gets when the air is knocked out of him, an asthmatic trying to get air, or sleep apnea.
“Imagine that over and over and over, except when you get hit in the stomach and lose your air, even though it’s awful, you know intellectually this is going to go away,” Waisel said. “If he’s experiencing that, we hear from people who have asthma who have trouble catching their breath how awful it is.”
Dr. Chitra Venkat, an associate professor of neurology at Stanford University who specializes in critical care, said a person’s internal suffering, or lack of it, may not be visible to a physician externally.
“As physicians, we’re looking at somebody and if they’re grimacing or if they are tearing or if they are gasping, different people may associate different signs of suffering, and that’s why I wouldn’t go out on a limb and say if he was suffering or not,” Venkat said.
The Arizona Department of Corrections used “declarations and sworn testimony” in litigation involving an Ohio execution in January in coming up with its policy of using massive doses of a sedative and painkiller for lethal injections. The department has refused to provide any more information on the decision-making process.
Waisel was one of the doctors who gave a sworn statement in that case before the Ohio execution occurred.
Waisel surmised that the Ohio inmate, Dennis McGuire, could experience the sensation of “air hunger,” or what patients have described as the feelings of suffocating. Waisel said sedation “still leaves a substantial likelihood of experiencing air hunger.”
Witnesses to McGuire’s Jan. 16 execution say he was gasping and struggling in his restraints for a prolonged time. Witnesses in Wood’s execution say he gasped for air like a fish out of water over 600 times and snorted during his time on the gurney.
The difference between the two executions is the dosage of midazolam, a sedative, and hydromorphone, a painkiller. McGuire got 10 milligrams of midazolam and 40 milligrams of the other drug. Wood got 50 milligrams of each drug and a second dose as he kept breathing.
Waisel said the percentage change in the dosage doesn’t equate to an equal percentage change in the effect. He said people are typically given between 2 and 4 milligrams of midazolam to calm them before surgery and make them forget going to surgery.
“Because of the way drugs work in the body, I can’t tell if 50 mg is five times the effect. We do not worry about that with midazolam because no one gives these kinds of doses,” Waisel said. He said the same caveat applies to hydromorphone.
Wood’s execution was the first one in Arizona using that specific drug combination. Previous lethal injections used a three drug combination or an overdose of a single sedative, none of which are available for executions anymore because of resistance from drug makers opposed to capital punishment.
Wood’s snorting and gasping was so alarming to his attorneys they filed an emergency motion with Judge Neil Wake of U.S. District Court to stop the execution.
Assistant Attorney General Jeffrey Zick, relaying information he got from people on the scene, said in an emergency hearing before Wake that Wood was brain dead and his movements and noises were common for anyone who was dying after being taken off life support.
Venkat said no one can “just eyeball a patient” and determine brain death, and no one who is still breathing is brain dead, or in a state of no brain activity.
Gasping, snorting and rasping are all indicative of a person trying to take a breath, Venkat said.
“If you are taking those sorts of breaths you’re not dead by any means, and you cannot just stand outside or inside the room or even next to a patient and say you’re brain dead or not,” Venkat said.
She said the examination takes a trained doctor about 15 minutes and in most states a second doctor has to also examine the patient. The two exams are done an hour apart, she said.
Zick also told Wake that Wood’s snorting was involuntary and a reaction of the brain stem.
“If the brain stem is still working, in the U.S. you cannot declare someone brain dead, the brain stem also has to stop working,” Venkat said.
She said testing the brain stem is done by checking reflexes, such as touching the cornea to see if the person blinks, or shining light in the pupils to see if they react.
“If a person blinks, they are not brain dead,” she said.
During the hearing on the emergency motion, Wake was concerned that the brain-dead diagnosis was done without an electronic monitor, but Venkat said that is not a required practice in determining brain death.
Venkat said information Wake got that the noises Wood was making are typical of someone coming off life support was accurate.
She said as the breathing slows, the breaths become more like gasps, followed by long pauses.
“That’s the kind of breathing we associate with dying,” Venkat said.