Bush v. State

• Decision Date: 06 March 2002
• Docket Number: No. 4D00-384.,4D00-384.
• Citation: 809 So.2d 107
• Parties: Kathleen BUSH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

809 So.2d 107

Kathleen BUSH, Appellant, v. STATE of Florida, Appellee.

No. 4D00-384.

District Court of Appeal of Florida, Fourth District.

March 6, 2002.

Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

After a four month jury trial, Kathleen Bush was found guilty of aggravated child abuse of her daughter, Jennifer, and organized fraud against Medicaid. She raises six arguments on appeal alleging fourteen reversible errors. We affirm her conviction.

Bush began reporting that Jennifer suffered from chronic diarrhea to Jennifer's pediatrician, Dr. James Deleo, in October 1987, when Jennifer was five months old. Upon examination, Dr. Deleo discovered that Jennifer had a low white blood cell count, common in infants with a slow developing immune system, and placed Jennifer on a regimen of intravenous gamma globulin injections. Eventually, a surgeon installed in Jennifer's chest a device called a "port-a-cath" because Jennifer's peripheral veins were no longer able to tolerate intravenous infusion.

In October 1988, Bush began employment as Dr. Deleo's office manager. As Bush's reports of chronic diarrhea continued, and now with the addition of chronic vomiting, Dr. Deleo referred Jennifer to two pediatric gastroenterologists for examination. Both found Jennifer's bowels and weight to be normal and no evidence of gastrointestinal problems. Still, for the following four months, Bush continued reporting that Jennifer suffered from chronic diarrhea and vomiting.

In June 1989, Bush reported that Jennifer was experiencing seizures since she slipped, fell, and hit her head on bathroom tile. Dr. Deleo referred Jennifer to Dr. Carlos Gadia, a pediatric neurologist, who examined Jennifer, conducted a CAT scan and EEG of Jennifer's brain, and found her neurologically normal. A month later, Bush again reported seizure-like symptoms. With Dr. Gadia's consent Dr. Deleo prescribed Tegretol as a precautionary measure for Jennifer.

Tegretol is an anti-seizure drug, orange in color and is orally administered. Children who take Tegretol have a much higher chance of aplastic anemia and depression of the body's ability to produce white blood cells. Symptoms of Tegretol at a toxic level are ataxia, increased heart rate, dilated pupils, myoclonus (limb twitching), and gastrointestinal symptoms, such as nausea, vomiting, and diarrhea. If the toxicity level becomes high enough, severe seizures and cardiac arrhythmia can result, often leading to death.

Throughout 1989 and early 1990, Bush continued to report to doctors that Jennifer suffered from chronic diarrhea and vomiting, ataxic behavior, and now abdominal pain. No medical explanation was found. In May 1990, Dr. Deleo referred Jennifer to a third pediatric gastroenterologist, Dr. Alejandro Flores, located in Boston. Dr. Flores conducted various examinations of Jennifer, reviewed Jennifer's medical history, obtained a medical report from Bush, and concluded that Jennifer suffered from a neuropathic gastrointestinal motility disorder. This is a problem arising from the failure of the brain to instruct the nerves of the intestines to exercise the muscles properly. Dr. Flores recommended a prescription of Cisapride, and if that did not stop Jennifer's vomiting, installation of feeding tubes. Tegretol —especially in toxic amounts—can cause slowed motility.

Although Cisapride treatment followed, Bush's reports of chronic vomiting, diarrhea, and intolerance to food continued. Consequently, a surgeon installed feeding tubes in Jennifer. First, a tube was inserted into her stomach through the intestinal wall, known as a gastrostomy tube or "G-tube." Second, a tube was inserted into Jennifer's small intestine, known as a jejunum feeding tube or "J-tube." Through the tubes, Jennifer was fed Vivanex, a liquid formula containing daily nutrients. Otherwise, Jennifer would receive TPN, Total Parenteral Nutrition, a nutritional formula administered directly into the bloodstream intravenously.

Also in 1990, Jennifer was diagnosed with sepsis, believed to be caused by bacteria entering her port-a-cath. In fact, throughout the entire time Jennifer lived with Bush, she suffered from fifteen episodes of sepsis. Of these fifteen episodes, three of them were diagnosed as polymicrobial, of multiple organisms. Expert opinion explained that a polymicrobial infection is rare, because normally an infection in the bloodstream is due to one microorganism traveling throughout body. This was the first time Jennifer's pediatric infectious disease specialist, Dr. Alfredo Murciano, saw a polymicrobial infection in the bloodstream. In Doctor Eli Newberger's opinion, a Harvard Medical faculty member and pediatrician, the first instance of polymicrobial sepsis is an "extraordinary event"; a second instance in the same person would be "extremely unusual"; and the possibilities for a third incident would be "vanishingly small," a "quirk of biology," or an indication of intentional infection. During Jennifer's last episode of polymicrobial sepsis, Jennifer was diagnosed with a urinary tract infection due to a microorganism different from the sepsis microorganisms. Dr. Newberger opined that this is very odd, as usually the bacteria causing the tract infection would be the same as the bacteria causing the sepsis.

With many of the diagnosed episodes of sepsis, Jennifer's port-a-cath had to be surgically removed and replaced in another area of her body. Often Jennifer's feeding tubes had to be surgically removed and replaced because of frequent dislodging. Because these surgeries required lengthy stays under medical care, Jennifer was a frequent visitor at Coral Springs Medical Center and Hollywood Memorial Hospital.

Six nurses at Coral Springs Medical Center testified that Jennifer's health deterioration during Bush's visits became "routine" and "seemed to be a pattern." On numerous occasions, including "every morning without exception," when Bush visited Jennifer in Jennifer's private hospital room, Jennifer would begin vomiting or suffer from ataxia immediately after Bush departed although prior to the visit Jennifer was playful and alert. The nurse manager, if aware that Bush was going to visit Jennifer that day, would assign one nurse to care only for Jennifer and divide the other patients among the remaining nurses. If, on the other hand, both Bush and her husband were going to visit, then the manager would assign the nurse to care for Jennifer and other patients as well.

Nurses from both hospitals reported numerous suspicious incidents, including occasions when Jennifer's feeding or IV pumps would mysteriously malfunction while Bush was present, reports of vomiting unobserved by anyone but Bush, and submission by Bush of contaminated urine samples. See Appendix A. None of the hospital nurses reported Bush's activities to HRS, although it was their legal duty to report suspicions of child abuse. Instead, the nurses reported their suspicions to their nurse manager and Dr. Deleo.

On May 25, 1990, Jennifer's Tegretol prescription was put on hold because a blood test indicated that Jennifer's Tegretol level was toxic and all nurses were informed of the hold. After the discontinuation of the medication, Jennifer's blood was tested twice a day to determine its Tegretol level. Yet Jennifer's blood continued to test positive for the presence of Tegretol—often in toxic levels—for the next nineteen days, a matter of perplexity to her doctors.

During this hold period, nurses reported that on occasion Jennifer vomited an orange substance and had orange stool, both the color of Tegretol. A sample of Jennifer's gastric fluids was tested during the hold period and the results indicated the presence of Tegretol. Bush visited daily throughout this time period, each morning and evening. One nurse observed Bush with Jennifer in Jennifer's hospital room, heard Jennifer scream "no, no, no," and saw Bush giving Jennifer something orally by syringe. Within approximately thirty minutes Jennifer vomited a substance that smelled like and was the same color (orange) as Tegretol.

On June 15, Dr. Deleo discussed with Bush his confusion as to why Jennifer still had Tegretol in her blood and sometimes at toxic levels since the medication was on hold. By June 18, the level decreased to 0%. A nurse recalled that on June 17, while Jennifer was sleeping, Bush spontaneously and tearfully stated at her bedside, that she would never do anything to hurt Jennifer.

Through this time, Bush continued to report that Jennifer was experiencing seizures. Neither Dr. Gadia, Dr. Deleo, nor the nurses who cared for Jennifer ever observed Jennifer have a seizure.¹ Although she was subjected to numerous CAT scans, MRIs, and EEGs, no medical reason was ever found for Jennifer's alleged seizures by either Dr. Deleo or Dr. Gadia. Bush also added claims that Jennifer suffered from joint aches and eye problems. Consequently, Jennifer was referred to various specialists, such as a radiological orthopedic specialist, a metabolism specialist, and an optometrist, to determine the source of these problems. Similarly, no medical reason was ever found for Jennifer's alleged ailments.

Bush ceased working as Dr. Deleo's office manager in November 1993. Before that date, Dr. Deleo was not only Jennifer's pediatrician but also a close family friend and a neighbor of the Bush family. The Deleo family and Bush family would socialize, celebrate holidays together, and go on family vacations together. When Bush was discharged from Dr. Deleo's employment, the separation was hostile, the two families no longer interacted with each other, and Dr. Deleo stopped serving as Jennifer's pediatrician. Coincidently, during the eight month period following the...