STATE OF KANSAS Appellee v L STAN NARAMORE D O Appellant No 77 069 COURT OF APPEALS OF KANSAS 25 Kan App 2d 302 965 P 2d 211 1998 Kan App LEXIS 79 July 24 1998 Opinion Filed PRIOR HISTORY judge 1 Appeal from Cheyenne District Court JACK L BURR DISPOSITION Reversed SYLLABUS 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 2 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 1 need not rule out a mere hypothetical possibility of innocence which is not supported by substantial evidence COUNSEL Kurt P Kerns of The Law Offices of Leslie F Hulnick P A of Wichita and R Pete Smith and Anthony L Gosserand of McDowell Rice Smith Garr P C of Wichita for the appellant John K Bork assistant attorney general and Carla J Stovall attorney general for the appellee John P Sevastos D O of Chicago Illinois for amicus curiae American Osteopathic Association Quentin L Brown of Logan Riley Carson Kaup L C of Overland Park for amicus curiae Kansas Osteopathic Association Wayne T Stratton of Goodell Stratton Edmonds Palmer L L P of Topeka for amicus curiae Kansas Medical Society JUDGES Before BRAZIL C J PIERRON J 3 and MERLIN G WHEELER District Judge assigned BRAZIL C J dissenting OPINIONBY PIERRON OPINION 212 303 PIERRON J On July 15 1994 the office of the Attorney General filed a two count complaint against 213 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 4 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 2 regulated by the Kansas Board of Healing Arts to practice medicine and surgery 304 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 asamicus 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 5 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 305 Mrs Leach s condition it slows respiration and there 6 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