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UMass Amherst LEGAL 397N - COURT OF APPEALS OF KANSAS

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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: [***1] Appeal from Cheyenne District Court; JACK L. BURR, judge. 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 1need 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 2regulated 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


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UMass Amherst LEGAL 397N - COURT OF APPEALS OF KANSAS

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