State v. Naramore

• Citation: 25 Kan.App.2d 302,965 P.2d 211
• Decision Date: 24 July 1998
• Docket Number: No. 77069,77069
• Parties: STATE of Kansas, Appellee, v. L. Stan NARAMORE, D.O., Appellant.
• Court: Court of Appeals of Kansas

Page 211

965 P.2d 211

25 Kan.App.2d 302

STATE of Kansas, Appellee, v. L. Stan NARAMORE, D.O., Appellant.

No. 77069.

Court of Appeals of Kansas.

July 24, 1998.

Syllabus by the Court

1. In Anglo-American legal tradition, criminal guilt must be proven beyond a reasonable doubt.

2. When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

3. The burden of proof to establish criminal guilt of a physician for acts arising out of providing medical treatment is higher than that necessary to find medical malpractice or to impose medical licensure discipline.

4. The issues of palliative care of terminally ill patients and what constitutes reasonable resuscitation efforts are not matters of general knowledge possessed by jurors. If they are issues in a case, the trial court should provide proper instructions on them to guide the jury in deliberations.

5. Criminal guilt for even the most serious crimes may be established by circumstantial evidence.

6. While criminal guilt may be established by circumstantial evidence, the facts and circumstances in evidence must not only be consistent with each other and with the guilt of the defendant, but they must be inconsistent with any reasonable theory of the defendant's innocence.

7. The theory that the prosecution is under an affirmative duty to rule out every hypotheses except that of guilt beyond a reasonable doubt has been rejected. The State need not rule out a mere hypothetical possibility of innocence which is not supported by substantial evidence.

Kurt P. Kerns, of The Law Offices of Leslie F. Hulnick, P.A., Wichita, and R. Pete Smith and Anthony L. Gosserand, of McDowell, Rice, Smith & Garr, P.C., Wichita, for Appellant.

John K. Bork, Assistant Attorney General, and Carla J. Stovall, Attorney General, for Appellee.

John P. Sevastos, D.O., Chicago, Illinois, for amicus curiae American Osteopathic Association.

Quentin L. Brown, of Logan, Riley, Carson & Kaup, L.C., Overland Park, for amicus curiae Kansas Osteopathic Association.

Wayne T. Stratton, of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, for amicus curiae Kansas Medical Society.

Before BRAZIL, C.J., PIERRON, J., and MERLIN G. WHEELER, District Judge, assigned.

PIERRON, Judge:

On July 15, 1994, the office of the Attorney General filed a two-count complaint against Dr. Lloyd Stanley Naramore, a licensed Kansas physician. Count I charged him with the attempted murder of Ruth Leach. Count II charged him with the premeditated first-degree murder of Chris Willt. Both counts arose out of actions taken by Dr. Naramore during his medical treatment of Mrs. Leach and Mr. Willt in August 1992.

A jury trial was held in January 1996. The jury returned verdicts of guilty of attempted murder on Count I and guilty of the lesser included offense of intentional and malicious second-degree murder on Count II. Dr. Naramore was sentenced to concurrent terms of 5 to 20 years. He is apparently now free on parole. He appeals his convictions on the grounds of alleged insufficient evidence and numerous other errors.

In addition to the extensive briefs of the State and Dr. Naramore, we have been provided with amicus curiae briefs filed by the Kansas Association of Osteopathic Medicine (KAOM), The American Osteopathic Association (AOA), and The Kansas Medical Society (KMS).

The KAOM is a voluntary professional association of over 350 osteopathic physicians in Kansas. Osteopathic physicians are full-service health care providers, licensed and regulated by the Kansas Board of Healing Arts to practice medicine and surgery.

The AOA is the national professional association for osteopathic physicians and osteopathic medicine.

The KMS is a voluntary organization representing over 4,200 physicians throughout Kansas. The KMS has appeared in the past as amicus curiae before the appellate courts of Kansas when issues involving the ability of physicians to provide quality health care have been involved.

The court has carefully reviewed all the briefs and has done substantial research itself. We can find no criminal conviction of a physician for the attempted murder or murder of a patient which has ever been sustained on appeal based on evidence of the kind presented here. To explain the basis for our rulings, it will be necessary to give a very detailed account of the expert evidence presented at trial and certain facts concerning medical practices in dealing with terminally and critically ill patients.

Ruth Leach

Mrs. Ruth Leach, a 78-year-old woman, had been suffering from cancer for a number of years. She was admitted to the St. Francis Hospital in St. Francis, Kansas, in May 1992. Her son and daughter-in-law, Jim and Cindy Leach, saw her frequently at the hospital and paid her a visit on the evening of August 2, 1992. Jim's sister Judy Monroe was already at the hospital visiting Mrs. Leach. Jim testified his mother had "gone downhill dramatically" since his last visit. The cancer had spread widely, and her condition was terminal.

Cindy Bizer, Mrs. Leach's nurse that evening, told the family the morphine patches used for pain medication were apparently not doing the job because Mrs. Leach seemed restless. Bizer suggested calling Dr. Naramore to prescribe a stronger dose of pain medication. Dr. Naramore came to the hospital and examined Mrs. Leach. She told him she felt terrible. Dr. Naramore and the Leach family went to the hospital chapel where they could have some privacy.

Dr. Naramore asked the family what they wanted to do, and Jim said he wanted his mother to have more painkillers. Dr. Naramore explained that when extra pain medication is given to a patient in Mrs. Leach's condition, it slows respiration and there is a real danger the patient can die. Mrs. Leach had developed a relatively high level of tolerance for pain medication by that time. The family discussed Mrs. Leach's living will and her desire to have no heroic measures taken to save her life, and then told Dr. Naramore to give her more pain medication.

One of the key issues involved in this case involves what is known as "palliative care." The KMS, in its amicus brief, makes the following observation regarding palliative care:

" 'Physicians are healers of disease and injury, preservers of life, and relievers of suffering.' Decisions, 267 JAMA at 2230. These roles sometimes conflict, however. Pain management for patients in the later stages of cancer presents a particular challenge for physicians. Palliative care refers to medical intervention in which the primary purpose is to alleviate pain and suffering. It is sometimes referred to as having a 'double effect,' however, because in addition to relieving pain and suffering, the level of pain medication necessary to relieve pain may have the consequence of shortening life. Thus, the health care provider's role as healer conflicts with his or her role as reliever of suffering when increasing amounts of pain medication are required to provide comfort care, but these increasing doses may have the effect of slowing respirations and thereby hastening death. Numerous authorities recognize that cancer patients frequently receive inadequate pain relief. See, e.g., Cherny and Catane, Editorial: Professional Negligence in the Management of Cancer Pain, 76 Cancer 2181 (December 1, 1995) (Management of Cancer Pain ) ...; Von Roenn, et al., Physician Attitudes and Practice in Cancer Pain Management, 119 Ann. Intern. Med. 121 (July 15, 1993). In fact, one cause of the failure of physicians to adequately control pain is fear of legal sanctions. See Johnson, Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act, 24 J.L. Med. & Ethics 317, 320, 326 (Winter 1996), and other articles in same issue; Ethics of Pain Management, 9 J. Pain & Symptom Mgmt. at 166. On the other hand, it has also been suggested that inadequate control of pain due to substandard treatment may constitute medical negligence. Management of Cancer Pain, 76 Cancer at 2183. See Casswell, Rejecting Criminal Liability for Life-Shortening Palliative Care, 6 J. Contemp. Health L. & Pol'y 127 (Spring 1990), for an analysis of the issues surrounding the criminalization of palliative care.

"The [American Medical Association]'s Council on Ethical and Judicial Affairs has adopted the position that ' "the administration of a drug necessary to ease the pain of a patient who is terminally ill and suffering excruciating pain may be appropriate medical treatment even though the effect of the drug may shorten life." ' Decisions, 267 JAMA at 2231, quoting Council on Ethical and Judicial Affairs. Euthanasia: report C. In: Proceedings of the House of Delegates of the AMA; June 1988; Chicago, Ill:258-260. Thus, a health care provider is ethically permitted, and perhaps even required, to implement pain medication and palliative care, with the consent of the patient or the patient's family, notwithstanding the potential for hastening death. This position recognizes that there is an ethical distinction between providing palliative care which may have fatal side effects and providing euthanasia. Whereas the goal in palliative care is providing comfort care to relieve suffering even though death may occur, the goal of euthanasia is itself to cause death and through death relieve the suffering. Perhaps a subtle distinction, but an important one, for in providing palliative care the intent is to relieve suffering, not to kill. Other authorities also suggest that actions constitute palliative care, not euthanasia, when the patient is suffering, the care is appropriate to the level of suffering, and 'the actions are not intended to lead directly and deliberately to death.' Gordon and Singer, Decisions and Care at...