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State v. Hocevar6/19/2000
a bottle of Benadryl capsules without a cap. Susan habitually removed the plastic wrappers from Benadryl capsules and put them in a bottle so that she would have quicker access to them at the onset of an allergy attack. When Susan set the Children's Tylenol on the coffee table for Wesley, about ten or twelve 25-milligram Benadryl capsules were remaining in the bottle. Susan told Wesley to take his medicine and resumed baking cookies in the kitchen.
When Susan asked Wesley if he had taken his medicine, he replied, "I took all my medicine." Susan continued baking cookies and a neighbor stopped by. Susan briefly visited with him in the living room and noticed, after the neighbor had left, that her Benadryl was gone. The Children's Tylenol was still sitting on the coffee table. Wesley confirmed that he had eaten the Benadryl capsules. Pezzarossi testified at trial that Susan later told her that she did not find pieces of the Benadryl on the floor, which might have indicated that Wesley had not taken all of the Benadryl. Susan testified that Wesley had tried to take other people's medicine on other occasions and that he had previously tried to take more vitamins than he was supposed to take. Susan unsuccessfully tried to phone her husband, Mathew Hocevar, Sr. (Mathew, Sr.), and then instructed the neighbor who had just visited to pick up Mathew, Sr. from work. Susan then called the emergency room and tried unsuccessfully to reach Dr. Young. Mathew, Sr. arrived at home and he and Susan took Wesley to the emergency room at Holy Rosary Hospital in Miles City.
The hospital called Pezzarossi. Wesley's stomach was rinsed and he was given activated charcoal and a laxative to quickly remove the Benadryl from his system. Pezzarossi testified at trial that the Hocevars informed her that Wesley had ingested approximately 250 to 300 milligrams of Benadryl and that Pezzarossi was aware at the time of treating Wesley that the lethal dose for a child of Wesley's weight was 480 milligrams. She further testified that the symptoms of a Benadryl overdose include a fast heart rate, dilated pupils, hallucinations, combativeness, agitation, and hyperactivity. Pezzarossi testified that she observed hallucinations in Wesley. She also testified that she was aware that an overdose of Benadryl could lead to seizures, but the record does not reflect that Wesley suffered any seizures following the overdose. Wesley was placed in the Intensive Care Unit for observation overnight and was released on the following day.
Pezzarossi was concerned that Wesley's Benadryl overdose might not have been accidental, partly based on her prior experience with Wesley's brother Mathew. Mathew died in December 1991 at the age of ten months. Pezzarossi first saw then six-month-old Mathew in August 1991, shortly after the Hocevars had moved to Montana from California. Susan informed Pezzarossi that Mathew had been on an apnea monitor in California, a device that alarms at a heart beat or respiration abnormality, because another Hocevar child, Zachary, had died of Sudden Infant Death Syndrome (SIDS). Although Mathew appeared normal to Pezzarossi, she therefore decided to prescribe another apnea monitor for him.
Pezzarossi testified that subsequent to the August office visit, Mathew was hospitalized several times and brought in for office visits several times, for problems including seizures, viral infections, and diarrhea. At the time of Mathew's last office visit on December 5, 1991, Pezzarossi testified that Susan felt that Mathew had been back to normal for several days and that Pezzarossi's examination of Mathew was normal. On December 19, 1991, Pezzarossi was summoned to the emergency room for a code blue (a child un
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