A federal lawsuit to be filed Tuesday by the family of Clayton Lockett identifies a McAlester physician as the doctor who carried out the execution, records show.
The lawsuit by relatives of Lockett names Johnny Zellmer, a McAlester emergency room physician, as the doctor who carried out Lockett’s botched April 29 execution. Other defendants include Gov. Mary Fallin, DOC Director Robert Patton, Oklahoma State Penitentiary Warden Anita Trammell and three unnamed executioners.
David Lane, an attorney based in Denver, said the lawsuit has not been posted on the federal court’s website due to the federal holiday Monday but has been sent to the court clerk to be filed Tuesday. Lane said he developed information that Zellmer was the doctor who handled the execution and called him about a month ago.
“I called and said, ‘Dr. Johnny, I’m a civil rights lawyer in Denver and I have inside information that you participated in the execution of Clayton Lockett. If you tell me you had nothing to do with that execution, I will not sue you,’ ”Lane said.
Zellmer told him to “talk to the prison” and hung up the phone, Lane said.
Zellmer could not be reached for comment Monday by the Tulsa World.
A state investigation into Lockett’s 43-minute execution concluded that a failed IV line was largely responsible for the problems. The investigation also cited a lack of training among participants in the execution.
The doctor that night had only participated in one execution before Lockett’s and was filling in for another physician who normally oversees executions at the Oklahoma State Penitentiary, the investigation found.
“He was contacted two days prior to the execution date and asked to fill in for another physician that had a scheduling conflict,” the report states.
Lockett spent several minutes writhing and mumbling on the gurney after the doctor pronounced him unconscious. The prison had no backup drugs to continue with the execution, which Patton ordered halted. Lockett died on the gurney 10 minutes later.
The lawsuit seeks damages against the defendants for using “unsound procedures and inadequately trained personnel” to carry out the executions.
It states Zellmer “was willing to, and did in fact, conduct the medical experiment engaged in by Defendants to kill Clayton Lockett regardless of the fact that these chemicals had never been approved or tested by any certifying body.”
A state law prohibits release of the names of doctors, paramedics, pharmacists and others who take part in executions. While the executioners and paramedic are hidden during the process, the doctor who pronounces inmates dead is plainly visible to witnesses.
“If Johnny Zellmer wants to protect his identity, he should have worn a mask,” Lane said.
“It’s amazing that doctors take the Hippocratic Oath yet if you pay them a lot of money ... they will agree to kill people using whatever happens to be in the syringe,” he said.
The sedative used in Lockett’s execution, midazolam, has been used in several other lengthy executions, including one that took nearly two hours in Arizona.
The American Medical Association and most medical associations state that their members should not take part in executions.
A 1980 opinion by the AMA states: “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.”
Zellmer obtained his medical degree from the University of Oklahoma in 1996 and has worked at McAlester Regional Medical Center since 1998, specializing in emergency room medicine, according to the Oklahoma State Medical Board of Licensure and Supervision. He has no disciplinary actions listed on the board’s website.
Since 2009, Zellmer has also worked at a medical clinic in Bethany, according to the website.
The state’s investigation cited problems with the IV that was supposed to deliver the lethal drugs as “the single greatest factor” in Lockett’s botched execution.
After the blinds were lowered, the team attempted to start a second groin-area IV in Lockett’s leg. However, the paramedic and doctor didn’t have the length of needles that would have worked best, they said, or an ultrasound machine to help guide the procedure.
DOC officials made several checks of Lockett’s veins leading up to and on the day of the execution, the report states, and his veins were “good” and acceptable for IV access.
Lockett was put to death for the 1999 murder of Stephanie Neiman, 19, of Perry.