Tennessee court keeps execution doctor's possible role undisclosed

Lawyers challenge physician’s qualifications after failed Carruthers procedure

The Tennessee Supreme Court denied a motion Thursday that would have required the state to disclose whether Mark Fowler would be on duty for Darrell Hines’ scheduled lethal injection. The ruling leaves Fowler’s possible participation unresolved.

Hines’ lawyers argued in court filings that Fowler’s possible involvement could expose Hines to the type of failed procedure experienced by Tony Carruthers. They alleged “an intolerable risk that [Hines] will experience severe suffering due to the … use of insufficiently qualified medical personnel.”

Hines, 65, was convicted of a 1985 murder and has suffered multiple strokes that left him partially paralyzed. His execution is scheduled for next Thursday.

The legal dispute follows Tennessee’s canceled execution of Carruthers at Riverbend maximum security prison in Nashville. Carruthers, 57, was strapped to a gurney while Fowler and an intravenous team attempted to establish a central line, an intravenous catheter inserted into a major vein below the collarbone.

The team repeatedly pierced Carruthers’ arms, feet and shoulder for an hour and 15 minutes before Tennessee called off the lethal injection. Carruthers was condemned to death for a triple murder in 1994. The Guardian reported that there was no forensic evidence in the case and that Carruthers has consistently maintained his innocence.

Maria DeLiberato, senior counsel with the ACLU’s capital punishment project, was present in the execution chamber. She said Fowler referred to Carruthers as “the patient” while trying to insert the line.

“He called Tony ‘the patient’,” DeLiberato said. “And he was trying to kill him.”

DeLiberato said Carruthers moaned during the procedure and that she saw blood emerge from the puncture. She said Carruthers later told her Fowler “was hurting me, and knew he was hurting me”.

In a court declaration, DeLiberato described Carruthers as “sweaty, pale, tearful, and he seemed to be in shock and pain” when she visited him about an hour after the execution was canceled. She said he could barely stand or walk.

Fowler, 68, became publicly known as Tennessee’s execution physician after a warden inadvertently disclosed his name while announcing the lethal-injection death of Byron Black, 69, last August. Execution physicians are usually protected by secrecy laws, according to the Guardian’s account.

Fowler declined to answer detailed questions from the Guardian. He called the matter “a private situation” and said Carruthers was entitled to privacy. He also said lawyers were “churning up a lot of nonsense”.

Fowler told NBC News after the failed execution: “Every attempt was made to minimize the defendant’s discomfort. No one wants Carruthers to suffer.”

Fowler told lawyers during a deposition that he had last attempted to place a central line during his emergency-room work about 13 years earlier. Kit Thomas, deputy chief of Nashville’s capital habeas unit, attended the deposition and provided legal advice during the Carruthers execution attempt.

“We knew the last time he had set a central line was 13 years ago, so we said, ‘Object! He’s not qualified!’” Thomas said.

DeLiberato said she objected to the warden that Fowler was not qualified. According to the account, Fowler responded, “Yes, I am qualified,” and the warden told him, “Doctor, do your job.”

John Greer, a retired physician, was among 50 medical experts who wrote to Tennessee Gov. Bill Lee criticizing the participation of medical professionals in executions.

“Nobody should be doing a dangerous procedure such as a central line unless they do it routinely and frequently, so that their skills are maintained,” Greer said.

Fowler said in his deposition that he became involved in executions after a friend who had served as Tennessee’s previous execution physician asked him in 2018 to attend an execution and eventually take over after the friend retired. Tennessee pays Fowler $3,000 for each execution he attends. The Guardian reported that execution physicians receive $15,000 in Oklahoma and $18,000 in Arizona.

“I don’t wish to read about myself in the newspaper saying, ‘This bloodthirsty coward doctor gets money for doing this.’ I get paid for the time and effort of going,” Fowler said.

The involvement of doctors in lethal injections has long raised an ethical conflict. The American Medical Association issued a prohibition in 1980, stating: “A physician must not participate in a legally authorized execution.” Charles Brooks became the first U.S. prisoner killed by lethal injection in Texas two years later.

Fowler trained first in public administration at the University of Tennessee and then became a lawyer. He worked for three years as a public defender and represented several capital defendants before juries spared them death sentences.

Around 1994, Fowler retrained as a physician at the University of Tennessee Memphis college of medicine. He later worked as an emergency-room physician and family doctor, and his income now comes primarily from medical directorships, including at weight-loss and aesthetic clinics and a wound-care facility.

Carruthers’ sister, Tonya Hervey, filed a complaint against Fowler with state health authorities. The complaint alleges that Fowler violated medical ethics and caused her brother excruciating pain.

Thomas said Fowler’s participation offered “a peek behind the curtain” at the state’s use of physicians in executions. DeLiberato said the failed procedure should prompt scrutiny of claims that lethal injection is humane.

“They want to make this a medical procedure, but it’s not. It’s premeditated murder. There’s really no way to kill a person humanely, with or without a doctor. What I witnessed was torture,” DeLiberato said.