dissenting: This case raises important issues concerning the possible criminal liability of a physician for providing medical services for his or her patients. Dr. Naramore was charged with and convicted of the attempted premeditated murder of Ruth Leach. He was also charged with the premeditated murder of Chris Willt and was convicted of this murder without premeditation. Although this case was tried as if it was a conventional murder/attempted murder case, it is uncontroverted that both charges arose out of actions taken by a physician in the care and treatment of his patients. The jury was instructed in both crimes that to find guilt it must find the crimes were committed intentionally and with mal*324ice. However, it was given no instruction on how to make this determination while taking into consideration the unique relationship and responsibility of a doctor to his or her patients while providing care. Aside from the testimony of the various doctors, the jury had little to guide it.
In holding that the jury’s decision was not supported by sufficient evidence, the majority states that the jury was not free to disbelieve the undisputed medical testimony “in support of the proposition that Dr. Naramore’s actions were not only noncriminal, but were medically appropriate.” Although the jury was not instructed on the very difficult issues of palliative care and appropriate efforts toward resuscitation, the majority concludes that Dr. Naramore was convicted because the jury found that his actions were totally outside appropriate medical practice and that his actions stemmed from homicidal intent. The majority notes that such issues are not generally within the knowledge of a layperson and holds that if such issues arise in a case, the trial court should provide proper instruction.
This case adds a prospect of criminal liability to complex issues of health care for critically and terminally ill patients. Every day, doctors and other care givers must make difficult clinical decisions when dealing with critically ill patients. By letting the jury deliberate on these issues without further instruction or without providing some sort of screening mechanism, doctors are exposed to potential criminal liability for their actions related purely to their exercise of professional clinical judgment. As pointed out in the amicus curiae brief of the Kansas Medical Society, the possible imposition of criminal liability for such actions, taken within the bounds of professional responsibility, may have a chilling effect on the availability and quality of health care for the critically ill.
We have found no case from another jurisdiction where a physician has been chárged with and convicted of homicide with a specific intent to kill for the exercise of professional judgment. Other jurisdictions have examined cases where a physician has been charged with reckless or negligent homicide. In those cases, the jury was required to find that the physician had committed a gross deviation from the reasonable standard of care or that the *325physician’s conduct was grievously unreasonable. See Annot., 45 A.L.R.3d 114,121; 40 Am. Jur. 2d, Homicide § 99. We have found no case where a physician was convicted of homicide based on a single act of patient care which was not clearly a gross deviation from a standard of care.
In cases of medical malpractice, juries are instructed to find that the physician deviated from the standard of care of a reasonable physician. PIK Civ. 3d 123.01, 123.10. For a plaintiff to prevail in a medical malpractice case, juries are required to find through expert testimony the following three elements: “(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.” Heany v. Nibbelink, 23 Kan. App. 2d 583, Syl. ¶ 1, 932 P.2d 1046 (1997). The general standard of care for a doctor in the context of medical malpractice is well settled. It is that “[a] physician is obligated to his patient to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations.” Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 3, 673 P.2d 86 (1983). In addition, statutes provide for the appointment of screening panels in medical malpractice cases, as well as for other professional malpractice cases. K.S.A. 60-3502; K.S.A. 65-4901. These panels consist of health care providers who decide whether there was a departure from the standard practice of the profession and whether a causal relationship existed between the damages suffered by the claimant and any such departure. K.S.A. 60-3504; K.S.A. 65-4903.
However, unlike the civil Pattern Jury Instructions provided in medical and professional malpractice cases, there are no criminal Pattern Jury Instructions relating to the medical and moral responsibilities of care givers for the critically or terminally ill patient, nor are there legislatively created screening panels. If care givers are now to be faced with the specter of criminal prosecution in these kinds of cases, then the legislature may want to consider *326requiring the appointment of panels similar to those used for medical malpractice cases prior to the filing of criminal charges.
The medical profession has developed standards of palliative care for terminally ill cancer patients like Ruth Leach and for termination of resuscitation for patients like Chris Willt who suffer cardiac or respiratory arrest. Medical treatises abound dealing with the medical, moral, and ethical considerations involved in these cases. See, e.g., Council Report, Guidelines for the Appropriate Use of Do-Not-Resuscitate Orders, 265 JAMA 1868, 1870 (April 10, 1991); Cherny & Catane, Editorial: Professional Negligence in the Management of Cancer Pain, 76 Cancer 2181 (1995). Certainly, in order to impose criminal liability in a situation where a physician is accused of specifically intending to kill a patient he or she is treating, a jury should be required to find an even more excessive deviation from the standard of care than in medical malpractice cases. At the veiy least, in the present case, the jury should have been instructed on the physician’s duty and standard of care when treating a terminal cancer patient for pain and the recognized standard of care and measures to be taken in attempting to save a patient in Willt’s condition. Since they were not so instructed, it is impossible to determine whether the jury made an assessment of Naramore’s actions, taking into consideration his role as a physician.
However, because of the amici briefs filed in this appeal, the panel has had the opportunity to evaluate this case against a background of legal and moral considerations which was not readily available to the trial court and jury. As argued by the Kansas Medical Society, “due to the unique issues of patient care presented by this case of first impression, this is not an ordinary case where the appellate court should defer to the verdict of the factfinder.” This is not a case in which criminal recklessness or negligence was alleged, nor is it a case in which it was alleged that the physician performed an assisted suicide. Dr. Naramore was charged with first- degree premeditated murder and attempted premeditated murder for exercising his professional clinical judgment. Dr. Naramore presented evidence in the form of medical testimony to show that he tried to save the life of Chris Willt and tried to ease *327the pain of Ruth Leach, as he was ethically required to do as a responsible physician. And yet there were no instructions given to the jury on his defense.
“Instruction of the jury is one of the most fundamental duties of the court.” State v. Norris, 10 Kan. App. 2d 397, Syl. ¶ 2, 699 P.2d 585 (1985).
“The purpose of instructing the jury is to guide the jurors in their deliberations and to aid them in arriving at a legally proper verdict. It is the trial judge’s duty to explain to the jury the law of the case and to point out the elements necessary to be proved by tire State in a criminal case.” State v. Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987).
“In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence. The defendant is entitled to an instruction on his or her theory of the case even though the evidence is slight and supported only by defendant’s own testimony. However, the trial court’s duty to instruct arises only when there is sufficient supporting evidence from which a rational factfinder could find that the events occurred consistent with the defendant’s theory.” State v. Rutter, 252 Kan. 739, Syl. ¶ 2, 850 P.2d 899 (1993).
See also State v. Shehan, 242 Kan. 127, 130, 744 P.2d 824 (1987) (The court has a duty to instruct the jury on the law applicable to the theories of both the prosecution and the defendant.).
“Instructions which are erroneous and misleading can constitute grounds for a new trial.” State v. Cathey, 241 Kan. at 730. If a party does not object to an instruction before the juiy retires for deliberations, there is no ground for reversal unless the instruction was clearly erroneous. State v. Isley, 262 Kan. 281, Syl. ¶ 4, 936 P.2d 275 (1997). “The giving of an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the juiy would have returned a different verdict.” State v. Jackson, 262 Kan. 119, Syl. ¶ 3, 936 P.2d 761 (1997).
The court had a duty to instruct the jury on the law applicable to the case. The theory of the defense was that Dr. Naramore had no homicidal intent because he was performing his duty as a physician and mating medically sound decisions. There was competent evidence introduced in support of this theory. There is a real possibility that had the juiy been instructed on a doctor’s responsibility *328to make decisions concerning his or her patients, the jury would have returned a different verdict. In the present case, the jury should have been instructed on the medical standard of palliative care and termination of resuscitation.
The majority makes a strong argument for outright reversal of the jury’s verdict based on insufficient evidence. I do not think we need to reach that issue. I would reverse and remand for a new trial with directions that the court properly instruct the jury.