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People v. Munoz

SEPTEMBER 4, 1975.




APPEAL from the Circuit Court of Kane County; the Hon. JAMES E. BOYLE, Judge, presiding.


Defendant was convicted in June, 1973, of involuntary manslaughter (a Class 3 felony) and reckless conduct (a misdemeanor), after a jury trial in the circuit court of Kane County. He was sentenced to a term of from 1 to 3 years on the manslaughter conviction only.

The victim of both offenses was Helen Bowman, a 77-year-old patient who had been confined at Elgin State Hospital for 11 years where she died on August 25, 1971, at 11:45 p.m. The indictment, returned on January 2, 1973, charged that defendant committed the offense of involuntary manslaughter by prescribing and causing to be administered to her a drug known as Inderal, "an act likely to cause death or great bodily harm" to her, and "thereby causing her death." Count II of the indictment charged that defendant committed the offense of reckless conduct by recklessly prescribing and causing to be administered to her a drug known as Inderal, "thereby endangering the bodily safety of Helen Bowman." Defendant was the physician assigned to the geriatric ward ("Pershing Two") where Helen Bowman was housed.

On appeal defendant presents these issues: (1) whether the trial court erred in admitting in evidence, as past recollection recorded, the entry by a nurses' aide in a so-called "incident book" that "medication given and charted as prescribed by physician"; (2) whether the trial court erred in overruling defendant's objections to the hypothetical question posed by the State to one Dr. Glick, an expert cardiologist, on the question of causation; (3) whether the trial court abused its discretion in restricting defendant's cross-examination of Miss Kindle and of Dr. Glick; and (4) whether the evidence established the defendant's guilt beyond a reasonable doubt.

We consider first the propriety of the trial court's ruling which admitted in evidence the entry by Miss Kindle in the incident book. This was obviously crucial to the State's case in view of the fact that defendant having been charged with ordering the drug Inderal to be administered to Mrs. Bowman, thus "causing her death" and "endangering [her] bodily safety," the State was required to prove that the medication had in fact been given. The medication administration record for the month of August, 1971, was unavailable. Therefore, the State sought to prove by circumstantial evidence that it had in fact been given.

Insofar as relevant to this issue Mrs. Stepson testified that she was the "charge aide" at Pershing Two, meaning that she was the non-medical person in charge on the day shift (from 8 a.m. to 4 p.m.) during the time in question when Dr. Munoz was the ward physician. She stated that she was familiar with the standard operating procedure for the administration of drugs. She would enter the drug on medication cards of different colors depending on the time it was to be given. There were four medication periods: 8 a.m., 12 noon, 4 p.m. and 8 p.m. It was her responsibility to tell the ward physician which patients needed to be seen and she would accompany him through the ward. She was with Dr. Munoz when he wrote the physician's order for drugs for Mrs. Bowman on August 25, 1971, and identified his signature on the order. His order included "10 mg. of Inderal b.i.d. for five days" (in addition to one tablet a day of another drug). The letters "mg." refer to milligrams; the letters "b.i.d." meant that it was to be given twice a day at 8 a.m. and 8 p.m. She testified that the night shift would give the 8 a.m. medication and the evening shift, working from 4 p.m. to midnight, the 8 p.m. medication. Her initials appeared on Dr. Munoz's physician's order sheet and her testimony as to the events of August 25, 1971, was based on "my initials"; she had no independent recollection.

She further testified that she left work at about 4 p.m. when Miss Kindle and Miss JoAnn Davis came on duty for the evening shift. She described Mrs. Bowman as "kind of asthmatic," with difficulty in breathing, "a small lady," "very thin," and "could have weighed" 97 or 98 pounds.

Norma Fidler testified that she was a registered nurse with the title of Pavilion Director; this title meant that she was in charge of administering several wards, including Pershing Two. She described the hospital procedure which requires ward personnel to record in the incident book what happened on each of the three shifts. She identified State's Exhibit 3 as being the incident book used in Pershing Two. On cross-examination she stated that Mrs. Bowman had difficulty walking and during the spring and summer of 1971 was brought into the infirmary for treatment of lacerations resulting from falls; that there were occasions when she was pushed to the floor by other patients.

Miss Kindle testified in substance that she and JoAnn Davis were charge-aides assigned to the Pershing Two ward. They worked the 4 p.m. to midnight shift and it was their responsibility to give the patients the 4 p.m. and 8 p.m. medications and they would record when they did so in the incident book. Dr. Munoz's medication order was in effect when she came to work on August 25, 1971. She stated that she had no independent recollection of administering Inderal to Mrs. Bowman. When she was shown the entry of August 25, 1971, in the incident book ("medication given and charted as prescribed by physician") she recognized it as being in her handwriting, but stated that it did not refresh her recollection of the event or as to whether she had given the medication ordered by the defendant. She could not recall any events that occurred on August 25, 1971, nor any circumstances under which she made that entry. Although drugs were given at 4 p.m. and 8 p.m. on her shift, the book entry as to the giving of medication did not reflect or indicate whether it was done at 4 p.m. or 8 p.m., and she had no independent recollection when the entry had been made on that date. When defendant's counsel on cross-examination asked, "What steps did you take to make sure that what you put in the book was true," she answered, "I really don't remember." The following additional excerpt of defense counsel's cross-examination of Miss Kindle is relevant:

"Q. [Defense Counsel] What I am asking you, how were you able to say that that entry is true if you don't recall anything that happened of your own personal recollection?

A. [Miss Kindle] Well, I can't say it.

Q. You can't say what?

A. That it has to be true.

Q. You can't say that; ...

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