Bush v. State3/6/2002
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 f
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