
    PEOPLE v. CLARK
    1. Criminal Law — Evidence — Suppressed — Factual Determination — Appeal and Error.
    The Court of Appeals cannot determine whether there exists any basis in fact for a claim that medical records were wrongfully suppressed by the people’s failure to comply with defendant’s alleged request for the production of the records relating to his treatment of a patient for whose manslaughter defendant was convicted, where the matter of the production of the medical records was never presented to the trial court for full appraisal.
    2. Homicide — Involuntary Manslaughter.
    Involuntary manslaughter is the killing of another without malice and unintentionally but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.
    3. Homicide — Manslaughter—Indictment and Information — Sufficiency — Gross Negligence.
    An information which specifically charges defendant with gross and culpable negligence and then specifically pleads the act which constitutes the gross negligence is sufficient, for it fully and fairly informs the defendant of the charge of manslaughter against him (MCLA § 750.321).
    References fori Pointsi in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error §§ 518, 519.
    5 Am Jur 2d, Appeal and Error §§ 603, 604.
    [2] 40 Am Jur 2d, Homieide § 70.
    [3] 41 Am Jur 2d, Indictments and Informations § 103.
    [4] 5 Am Jur 2d, Appeal and Error § 545 et seq.
    
    [5] 40 Am Jur 2d, Homieide § 99.
    38 Am Jur, Negligence § 332 et seq.
    
    41 Am Jur, Physicians and Surgeons.§ 138.
    Homieide: improper treatment of disease. 9 ALR 210.
    Malpractice: duty and liability of anesthesist. 52 ALR2d 142.
    
      
      4. Criminal Law — Appeal and Error — Failure to Preserve Question for Beview.
    The Court of Appeals will not review matters not properly preserved for appeal.
    5. Homicide — Manslaughter—Evidence—Sufficiency.
    Evidence that failure to constantly supervise a patient being infused with sodium pentothal was violative of accepted medical standards, that every medical student and medical doctor was aware or should be aware of the precautions to be taken, that the manufacturer’s instructions detailing the necessary precautions were discarded by the defendant, that a standard reference book in the defendant’s library detailed procedures for the use of the drug, and that defendant did not follow these procedures and failed to maintain adequate resuscitative equipment was sufficient, if believed by the jury, to prove knowledge of the extreme risk involved in defendant’s conduct and find defendant guilty of manslaughter, assuming that proof of knowledge of the extreme risk involved is necessary to sustain a conviction (MOLA § 750.321).
    Appeal from Oakland, William John Beer, J.
    Submitted Division 2 December 11, 1969, at Detroit.
    (Docket No. 6,333.)
    Decided September 28, 1970.
    Ronald E. Clark, M.D., was convicted of manslaughter. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, Dennis Donohue, Chief Appellate Counsel, and Bruce T. Leitman, Special Assistant Prosecuting Attorney, for the people.
    
      James E. Wells, for defendant on appeal.
    Before: Lesinsici, C. J., and Levin and Danhof, JJ.
   Lesinski, C. J.

After a jury trial, defendant Ronald Clark, M.D., was convicted of the manslaughter of his patient, Grace Neil. Dr. Clark appeals alleging four instances of error.

Grace Neil died at defendant’s medical clinic on November 3, 1967. An autopsy performed the day following her death failed to reveal the cause of death. However, blood and tissue analysis did reveal high concentrations of sodium pentothal in the deceased’s blood and brain. At trial experts generally agreed that the discovered percentages of the sodium pentothal would indicate that death had resulted from too rapid and too excessive infusion of the drug. Other witnesses’ testimony indicated that Dr. Clark had left the patient unsupervised during the infusion of the drug. In addition, it was undisputed that the doctor’s office did not contain any resuscitative equipment. Finally, experts in the medical profession, including general practitioners, toxicologists, anesthesiologists, and psychiatrists testified that the defendant’s procedure, on the day Grace Neil died, clearly violated accepted medical standards.

Defendant’s first allegation of error is that the plaintiff purposely withheld certain information, i.e., the defendant’s medical record of treatment of Grace Neil, which would have rebutted the plaintiff’s evidence of improper treatment. The testimony of the investigating detective indicates that at the time of arrest, he requested the defendant to surrender the medical record of treatment of Grace Neil and that the defendant complied with this request. At trial the records were referred to in the testimony of witnesses. However, no objection was raised by the defense to such references nor to the fact that the medical records were not produced for the defendant nor admitted in evidence. In this connection we note that defendant admits in Ms brief that the fact of the medical record seizure was testified to at preliminary examination, six months prior to trial.

Defendant now asserts, as he did on motion for new trial, that a request for production of the records was made prior to trial on March 15, 1968. While it does appear from documents filed with our Court that the request for production of these records was made, it would not follow from the fact that the request was not complied with, that the people deliberately withheld or suppressed evidence favorable to the defendant; no evidence showing deliberate withholding or suppression of evidence was offered in support of the motion for new trial.

Since the matter of the production of the medical records was never presented to the trial court for full appraisal, this Court cannot now determine whether there was any basis in fact for the claim that the medical records of treatment were suppressed. Where a defendant relies upon evidence clehors the record to set aside his conviction, the claim and the evidence in support of the claim ordinarily must be presented at the trial level in order to preserve the issue for appeal. People v. Ivy (1968), 11 Mich App 427, 431.

Defendant’s second claim of error concerns the sufficiency of the criminal information, filed in this case, which charged that:

“A licensed physician, did treat one Grace Neil as his patient, and in the said treatment Ronald E. Clark did then and there owe the legal duty of due professional care and caution to Grace Neil, and while so treating the said Grace Neil, Ronald E. Clark did feloniously kill Grace Neil, by his gross and culpable negligence, in that he, the said Ronald E. Clark, did inject into the body of Grace Neil an excessive quantity of Sodium Pentothal, and by so injecting the Sodium Pentothal into the body of Grace Neil, Ronald E. Clark did directly cause the death of Grace Neil, and thus improperly performed and grossly neglected the legal duty that he, as a physician, owed to Grace Neil, and committed Manslaughter, contrary to Section 750.321 of the Compiled Laws of 1948: M.S.A. Section 28.553.”

The crime of involuntary manslaughter is “the killing of another without malice and unintentionally, but in the doing of some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act, lawful in itself, or by the negligent omission to perform a legal duty,” People v. Ryczek (1923), 224 Mich 106,110. (Emphasis supplied.) The information fully and fairly informed the defendant of the charge against him. The information specifically charges the defendant with gross and culpable negligence and then specifically pleads the act which constituted gross negligence. MCLA § 750.321 (Stat Ann 1954 Rev § 28.553).

Defendant next argues that the information failed to advise him of the nature of the evidence to be used against him, i.e., the fact of the lack of available emergency oxygen equipment. Although defendant now claims that he objected at trial to the admission of this evidence, felt to be without the scope of the information, our review of the record fails to disclose any such objection. We will not review matters not properly preserved for appeal. People v. Ivy, supra.

Defendant’s fourth allegation of error questions the sufficiency of the evidence to prove knowledge of the extreme risk involved in his conduct. As-sTiming arguendo that proof of knowledge of the extreme risk involved in the infusion of sodium pentothal is necessary for conviction, we find that the plaintiff clearly carried the burden. Expert testimony clearly established that the failure to constantly supervise a patient being infused with sodium pentothal was violative of accepted medical standards. Further, testimony established that every medical student and medical doctor was aware or should have been aware of the precautions required to be taken. The testimony also established that the package containing the sodium pentothal also contained manufacturer’s instructions detailing the necessary precautions. Finally, the Physicians Desk Reference contained in Dr. Clark’s library, details the procedures for use of the drug. According to the totality of the testimony, Dr. Clark did not follow the required procedures when he administered the lethal dose of sodium pentothal to Mrs. Neil. Instead, he failed to maintain adequate re-suscitative equipment, discarded the manufacturer’s instructions, administered the drug without assistance, and left Mrs. Neil alone in the examination room during infusion. We find no error in the proceedings below. There was sufficient evidence, if believed, for the jury to find defendant guilty beyond a reasonable doubt. People v. Williams (1962), 368 Mich 494.

Affirmed.

All concurred. 
      
       MCLA § 750.321 (Stat Ann 1954 Rev § 28.553).
     