author: JjTERRI F. LOVE.

text:
    STATE of Louisiana v. Leslie JEFFERSON.
    No. 2002-KA-1159.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Harry F. Connick, District Attorney, Anne M. Dickerson, Assistant District At-' torney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JjTERRI F. LOVE.

Defendant, Leslie Jamal Jefferson, was convicted of manslaughter and sentenced to twenty-five years at hard labor without benefits. On appeal, he alleges the sentence was excessive. For the reasons assigned below, we affirm the defendant’s sentence and conviction.

FACTS AND PROCEDURAL HISTORY

On September 16, 2000, Leslie Jamal Jefferson (“Jefferson”) was charged by bill of indictment with first degree murder in violation of La. R.S. 14:30(1). At his arraignment on November 21st, he pleaded not guilty. After a two-day trial, a twelve-person jury found Jefferson guilty of the responsive verdict of manslaughter. The trial court ordered a pre-sentencing investigatory report, and the State filed a motion to invoke the firearm sentencing provisions under La.C.Cr.P. art. 893.1. On September 27th, three State witnesses testified. On October 5th, Jefferson was sentenced under La.C.Cr.P. art. 893.3, the article governing penalties in crimes where a firearm is discharged, to serve twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant was granted an out-of-time appeal on December 5th.

LSergeant Daniel Scanlan was the primary investigator in the murder case occurring at 2111 Joseph Street on September 16, 2000. When he arrived on the scene, he found items left behind by the emergency medical technicians in the front yard. In the upper apartment a bullet hole was found in a window of the front room, a blood smear on the bathroom doorknob, and two “strike marks” on the wall of the front room; the sergeant believed bullets had caused the marks. The victim’s body was found there. Ivan Medina (“Medina”) was in the apartment, and he told the sergeant what had occurred. As a result of the conversation, the sergeant obtained an arrest warrant for Jefferson.

Dr. Richard Tracey (“Dr.Tracey”), an expert in forensic pathology, performed an autopsy on Glenn Messerole (“Messerole”) on September 16, 2000. Dr. Tracey found that the victim died of a gunshot wound to the chest which entered in front of his left shoulder, went through the right lung, the heart, the left lung, and exited the left flank. A second gunshot wound entered his scalp at the back of the head and exited near the left ear. The “stippling” or gunpowder on the victim indicated that the discharge of the gun was within inches of the victim’s skin. The victim’s body fluids were analyzed, and the resulting laboratory report showed his blood alcohol level was 0.14% and cocaine was found in his system. Dr. Tracey also reviewed the medical reports from Charity Hospital concerning Shawn Patrick Dolan (“Dolan”), who was injured during the incident in which Messerole was killed. Dolan suffered two gunshot wounds; one was a shallow wound to the neck and the other was to the right forearm. Additionally, the toxicology report indicates Dolan’s blood alcohol level was 0.173%, and that he had ingested cocaine and marijuana.

| ¡¡Three witnesses, who were present when Messerole was shot, gave consistent accounts of the events. First, Dolan, a petty officer in the U.S. Navy, told the court he came to New Orleans about 10 p.m. on September 15th to visit his friend from high school, Messerole. The two men decided to go out to a bar in Fat City where they met Jefferson. Nadine Malho-tra (“Malhotra”), Messerole’s girlfriend, and Medina stayed at the apartment. Do-lan admitted having approximately four drinks (“crown and coke”) and a beer or two during the course of the night. Also during the evening, Messerole and Dolan went to Dolan’s car where they ingested cocaine. When the men left Fat City, the victim wanted to go to a cigar bar, but Dolan did not want to go. Messerole suggested they go back to his house to get his car, and Dolan drove Messerole and Jefferson to Joseph Street. Dolan turned the radio on as loud as it would go so that he could not hear the voices of Jefferson and Messerole complaining that they did not want to go all the way uptown. When they arrived at the Joseph Street address, Messerole and Jefferson were arguing. They immediately went into the house, and Dolan stayed behind momentarily to lock his car and roll up the windows. When he entered the house, Dolan tried to go into the bathroom, but the door was locked.

As he walked into the living room, Medina was walking out, saying, “Shawn, the gun is out, the gun is out.” Dolan saw that Jefferson held a gun in his right hand. Dolan, walked between Jefferson and Mes-serole who were still arguing. Dolan pulled Messerole away from Jefferson, but Messerole pushed Dolan away and shoved Jefferson. Dolan again grabbed Messer-ole and again was pushed away. Jefferson raised his gun and shot Messerole in the chest. Dolan, trying to shield Messerole, was shot in the arm by a second bullet. Jefferson lunged at Messerole, who had turned away, and shot him in the head. As Dolan 14fell, he saw that Jefferson was going through Messerole’s pockets. Jefferson asked Dolan for his money, and Dolan gave the currency from his pocket to Jefferson. Jefferson then shot Dolan a second time. Dolan passed out briefly, and when he awoke, he called 911 on his cell phone. However, he did not know the address of the apartment, and he handed the telephone over to Medina who gave the operator the information. Dolan noticed the blood on the floor around Messerole and realized he was dead. Dolan left the apartment and walked to the sidewalk where he lost consciousness. In court, Dolan identified the shirt he had been wearing that day and noted the bullet hole, blood, and burn marks on the collar. Do-lan stated he never had any physical altercation with Jefferson, but he did see Mes-serole hit or shove Jefferson once. Prior to the shooting, Dolan heard the two arguing. Under cross-examination, Dolan stated that Messerole had carried a gun about five years ago when “we thought we were in danger.” However, Dolan clarified that Messerole was then fourteen or fifteen years old and carried the gun for about a week. Dolan stated on the night of his death, Messerole was not carrying a gun.

In his testimony, Medina admitted he and Messerole had been members of a gang called the Latin Kings about four years ago. Medina also stated that Mes-serole shoved Jefferson before Jefferson fired at Messerole.

Malhotra, a seventeen-year-old, told the court that Jefferson was Messerole’s best friend. In the early morning hours of September 16th, both Jefferson and Mes-serole came to her room because Jefferson wanted her to drive him home. . He frequently asked her for a ride home after he had been out with Messerole, and Malho-tra got up intending to drive Jefferson to his home. However, when she walked into the living room where Medina, Messerole, Jefferson, and Dolan were standing, she heard Jefferson and Messerole arguing. She saw Messerole hit | ¡Jefferson. Malho-tra described the first three shots as being very close together. Then Jefferson walked over to where Messerole had fallen and began to look for his wallet. Dolan lifted up his head and told Jefferson that' “he had shot everyone already and to leave us alone.” Then Jefferson shot Dolan a second time. Jefferson told-Malhotra to get her car keys and purse. She had not put her contact lenses in, but she drove anyway. When he asked her to stop at her bank to get money for him, she told him that the account held no money. ■ Mal-hotra drove to the I — 10 and past all of the Kenner exits. Jefferson told her Medina had had a gun; Malhotra responded that she had not been wearing her contacts and could not see anything. He also told her that after Messerole hit him, he started shooting because he thought everyone was ganging up on him. They stopped at a call box to use the telephone, but it was broken. While they were stopped, Jefferson threw his gun over the bridge. They got off the highway again at the Ponchatoula exit, and Jefferson called the police. Both were taken into custody. Malhotra told the court she had been with Messerole about six years, and that Messerole had known Jefferson for about a year.

Lacy Ann Nash (“Nash”) and Traci Parker (“Parker”) both testified for the defense. Nash said she had known Jefferson for about six months prior to the shooting. She knew he had a gun, which could shoot only about four bullets because the barrel was bent. He carried the gun continually for protection. Jefferson never indicated that he needed protection from Messerole. Nash confirmed that Jefferson and Mes-serole were best friends. Parker testified to the same facts as Nash.

Jefferson testified that he had never been in legal trouble before. On the night of September 15th and the morning of the 16th, Jefferson stated he drankj^only part of one “Crown and Seven.” About 10 p.m., Jefferson, Messerole, and Dolan went to several bars in Fat City and then got into the car. Jefferson and Messerole were discussing Dolan’s driving ability because he was not driving well. Dolan’s reaction was to play the radio at top volume. When they got to Messerole’s apartment, he proceeded to pick a fight with Jefferson, using curse words. Messerole had never spoken to him like that, and Jefferson was frightened. Jefferson went to Malhotra’s room to ask for a ride home. He then walked to the front room to wait for Malhotra. Messerole came toward him and started hitting him. Dolan and Medina also hit him. Medina reached under the sofa for a gun or a black object, which he held in his hand. Jefferson called the police from Ponchatoula to tell them that two people had been shot in New Orleans. Jefferson said that he did not intend to kill or hurt Messerole or Dolan. He simply reacted in fright. Jefferson explained that he needed the gun because he carried large amounts of money. Jefferson threw the gun away because he had purchased it on the street.

Dr. George Stumpf, an optometrist who examined Malhotra’s contact lens prescription, testified that her uncorrected vision at 20/400 would not meet the minimum standard for driving. Her vision of objects ten feet away would be blurred. Under cross-examination, the doctor admitted he had never seen her as a patient.

Medina was called as a rebuttal witness. Medina stated that he did not have a gun or a black object in his hand when Messer-ole was shot, nor did he go under the sofa to take anything out. Furthermore, he never saw Jefferson being attacked by Do-lan and Messerole. Medina recounted that Messerole and Jefferson enjoyed singing rap songs together. In one, Jefferson bragged about his gun, and that he Dwould “pull it out and use it if he had to.” When the State attempted to play a recording of Jefferson singing such a song, the defense objected and the trial court sustained the objection.

DISCUSSION

In a single assignment of error, the defendant, through counsel, argues that his sentence is excessive. The state responds that the issue is precluded because there was no oral motion to reconsider the sentence, and there is no written motion in the record. The defense merely objected to the sentence at the re-sentencing hearing. However, this Court has held that where an oral objection to the sentence was made at the sentencing hearing, the defendant is limited to a review of the bare claim of excessiveness. State v. Miller, 2000-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, writ denied, 2001-2420 (La.6/21/02), 818 So.2d 791; State v. Thompson, 98-0988 (La.App. 4 Cir. 1/26/00), 752 So.2d 293, writ denied, 2001-0087 (La.11/2/01), 800 So.2d 870.

Article 1, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive or unusual punishment.” A sentence, although within the statutory limits, is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.10/11/85). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 7 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 891, writ denied, 2000-1540 (La.5/25/01), 792 So.2d 751.

|sIf adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d at 871. The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982).

At sentencing, the trial court considered mitigating and aggravating factors in the commission of this crime. The pre-sen-tencing investigatory report indicated Jefferson had only one prior arrest and that was in 1999 for criminal damage to property. The trial court lauded the defense attorney for a valiant presentation of the self-defense or justifiable homicide theory of the crime, but opined that the jury made a reasonable conclusion in rejecting that theory. However, while it appears that the defendant was not under the influence of alcohol or drugs, he discharged the gun when it was reasonably foreseeable that great bodily harm might result. The trial court noted that the defendant was armed continuously through the time leading up to the crime, and that he fled after the incident. The trial court also commented that the defendant had no right to carry a gun concealed on his person. Under La.C.Cr.P. art. 893.3, a twenty-year sentence without benefits must be imposed because a firearm was used; La. R.S. 14:31, the manslaughter statute, provides for a sentence of between ten to forty years. The trial court considered that the defendant took one life and endangered another. The trial court then imposed a sentence of twenty-five years, without benefits of parole, probation, and suspension of sentence, which is slightly above the mid-range of sentencing for manslaughter. La.C.Cr.P. art. 14:31(B).

|sThe defense maintains that the twenty-year sentence was mandated, but the extra five years is excessive. However, the trial court made a statement supporting the sentence. The trial court found the fact that an eighteen-year-old carried a gun continually was appalling. Obviously, Jefferson’s being armed propelled an argument between friends into a tragic incident. The trial court’s primary reason for imposing the extra five years was a sense of shock that the apparently sober defendant shot the unarmed and very drunk victim, whom he considered his best friend, as the victim stood unarmed and only a few feet in front of him.

Moreover, the trial court has great discretion in sentencing within statutory limits. State v. Trahan, 425 So.2d 1222, 1226 (La.1983). In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

The trial court articulated in the record its reasoning and we find no abuse of its discretion, therefore we find no merit to defendant’s assignment of error.

ImThe next inquiry is whether the sentence is excessive in light of sentences imposed by other courts in similar circumstances. In light of the jurisprudence, we do not find that this sentence is excessive. In State v. Bowman, 95-0667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, this Court affirmed a thirty-three year manslaughter sentence for a first offender who drove the car but did not pull the trigger in a drive-by shooting. In State v. Barrois, 2000-1425 (La.App. 4 Cir. 1/31/01), 778 So.2d 1273, this Court affirmed the twenty-five year manslaughter sentence of a fifty-year-old defendant with no prior history of violence. In State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, the Second Circuit affirmed a forty-year sentence for a twenty year old defendant who kidnapped the victim and killed him during a robbery attempt and then pled guilty to a reduced charge of manslaughter. In State v. Cushman, 94-336 (La.App. 3 Cir. 11/2/94), 649 So.2d 639, the Third Circuit affirmed a thirty-year sentence of a twenty-one year old, who pled guilty to manslaughter and had no prior criminal history.

CONCLUSION

Accordingly, for reasons cited above, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendant uses his middle name, Jamal, and it is spelled Jamahl on his driver’s license and when he signed a police rights form. However, the most frequent spelling is Jamal, and that is used here.


source: Caselaw Access Project

author: I,WILLIAM H. BYRNES III, Chief Judge.

license: Public Domain

text:
    Lillie MADISON, Edward Madison, III and Thaddeus I. Madison v. ERNEST N. MORIAL CONVENTION CENTER-NEW ORLEANS, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New Orleans and Zulu Social Aid and Pleasure Club, Inc. Lillie Madison, Edward Madison, III and Thaddeus I. Madison v. Ernest N. Morial Convention Center-New Orleans, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, the City of New Orleans and Zulu Social Aid and Pleasure Club, Inc.
    Nos. 2000-CA-1929, 2001-CA-1127.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Clifford E. Car done, Catherine Hilton, Cardone Law Firm, a PLC, New Orleans, LA, for Plaintiffs/Appellees.
    Stephen N. Elliott, Ann M. Sico, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Ernest N. Morial Convention Center New Orleans, et al.
    Terese M. Bennett, Gregory C. Weiss, Julie G. Hamner, Weiss & Eason, L.L.P., New Orleans, LA, for Administrators of the Tulane Educational Fund.

      (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III).
   I,WILLIAM H. BYRNES III, Chief Judge.

The plaintiffs, the family of Edward Madison, Jr., filed a wrongful death and survival malpractice action in connection with the collapse from an apparent heart attack on February 12, 1994, and ensuing death a few minutes later of Edward Madison, Jr. He was fifty-five years old at the time and was attending the Zulu Social Aid' and Pleasure Club Ball at the Earnest N. Morial Convention Center. Named as defendants were the City of New Orleans/ Emergency Medical Services (the “City”), the Ernest N. Morial Convention Center (the “Convention Center”), the New Orleans Public Facility Management, Inc. (managers of the Convention Center), and the Zulu Social Aide and Pleasure Club. All of the foregoing defendants may hereinafter be referred to collectively as the “Convention Center Defendants.” Jo Dea-son (“Nurse Deason”), the nurse on duty at the Convention Center that night, and her employer, The Administrators of the Tulane Educational fund d/b/a.Tulane University Health Sciences Center f/d/b/a Tulane University Hospital and Clinic (“Tulane”) were also named as defendants [ 2in addition to the Convention Center defendants. Tulane does not dispute its liability for the actions of Nurse Deason should.she be found liable.

There was a bifurcated trial with the judge determining the claim against the City, and the jury deciding the claim against the remaining defendants. The jury rendered a verdict in favor of the plaintiffs and against the defendant, Tulane. Pursuant thereto, a judgment of the trial court was signed awarding the plaintiffs $792,000.00 “together with interest from date of demand, reasonable expert fees and for all costs of these proceedings, subject to the limitations and benefits of La. R.S. 1299.41, et seq.” It was further ordered that there be judgment in favor of the' New Orleans Public Facility Management, Inc. and the Zulú Social Aid and Pleasure Club, dismissing plaintiffs’ claims against those defendants, with prejudice “at plaintiffs’ costs.” Along the way, defendant motions for a directed verdict and for a JNOV were denied. Tulane’s order of suspensive appeal was signed on May 11, 2000.

The judge dismissed the claim against the City for the alleged negligence of the EMS crew. All fault was assigned to Tulane. The plaintiffs appeal of the dismissal of their claim against the City has been separately dismissed.

On June 13, 2000, the Convention Center Defendants filed a motion to assess costs against Tulane, seeking $58,000.00 in attorney’s fees pursuant to an indemnification provision in the contract between Tulane and New Orleans Public Facilities Management, Inc. The trial court granted the motion of the Convention Center Defendant on March 5, 2001. Tulane’s appeal from this judgment has been | ¡consolidated with the appeal on the merits. The Convention Center Defendants answered Tulane’s appeal asking for damages for frivolous appeal and costs.

I. JUDGMENT OF MARCH 5, 2001

We shall take up the judgment on the motion to assess costs against Tulane first for the sake of simplicity.

LSA-C.C.P. art.2088(10) provides that the trial court retains jurisdiction to tax costs. We find that this is true even where the appellant takes a suspensive appeal. However, the jurisdiction retained is limited to taxing costs consistent with the judgement. In the instant case, the original judgement ordered that “the plaintiffs ... bear the costs of’ the New Orleans Public Facility Management, Inc. and the Zulu Social Aid and Pleasure Club. Therefore, it was error for the trial court to subsequently tax costs to Tulane. We adopt the reasoning of the First Circuit in Miley v. U.S. Fidelity and Guaranty Co., 94-1204 (La.App. 1 Cir. 4/7/95), 659 So.2d 792, 799:

We first note that the trial court’s judgment awarded all costs to the defendant. That award of costs is “reviewable under the appeal” by this court, C.C.P. art. 2088, and the trial court therefore lost jurisdiction over it (save to “Set and tax”, meaning to fix their amount and to decide whether or not collectible from the party cast for costs). To the extent that the trial court’s second judgment, on the rule to tax (C.C.P. art.1920), cast defendant for, or denied defendant, taxable costs (such as jury costs and the reasonable costs of experts who testified at trial, but not of those who did not, nor of depositions not there introduced, R.S. 13:4533), it amounts to a partial reversal of the first judgment’s award of all costs to deféndant, and it is therefore null for lack of jurisdiction. [Emphasis added.]

LSA-C.C.P. art.1951 permits the amending of a final judgment of the trial court only to alter the phraseology (but not the substance) or to correct errors of | calculation. Neither situation applies to the instant case. The taxing of costs to Tulane after already having cast the plaintiffs for costs amounts to a substantive amendment to the judgment, which may only be done pursuant to a timely application for a new trial or a timely appeal. State v. Star Enterprise, 95-2124 (La.App. 4 Cir. 8/7/96), 691 So.2d 1221.

For the foregoing reasons, the judgment of the trial court of March 5, 2001, is reversed. By finding as we have held for the appellant in this appeal, the Convention Center Defendants’ answer to the appeal urging that it is frivolous is, perforce, rejected.

II. THE JUDGMENT ON THE MERITS

This is basically a manifest error case, hinging on the resolution of conflicting testimony fact witness and expert witnesses.

The essence of plaintiffs’ claim against Nurse Deason and her employer, Tulane, is that Nurse Deason, having been specially trained in Advanced Cardiac Life Support (ACLS) was negligent when she went to the decedent’s aid in failing to bring with her or immediately call for the portable heart monitor/defibrillator which she had with her in the medical room a mere 70 feet away from the decedent’s table at the festivities; and that this negligence was a substantial cause of the decedent’s death and/or the cause of his loss of “chance of survival.”

As far as the time line of events, the parties are basically in agreement with everything from the moment Nurse Dea-son received the emergency call of “man down” at 2:05 a.m. The plaintiffs and defendants also agree that Nurse Deason | .¡arrived at the decedent’s side in response to the emergency summons at 2:07 and that she called for an ambulance at 2:08 a.m. The main bone of contention between the parties as to the issue of timing is how much time elapsed between the time the decedent collapsed until the time Nurse Deason was summoned. The plaintiffs do not contend that Nurse Deason failed to respond promptly to the call of “man down.” The plaintiffs contend that she was summoned almost immediately, within a minute or two of the collapse, right after 2:00 a.m. and that she responded promptly. The defendants contend that the collapse occurred much earlier and that by the time Nurse Deason was summoned it was too late for her to be of any assistance.

The defendants base their contention that the decedent collapsed earlier in the evening on the testimony of Mrs. Madison, the decedent’s wife, that her husband collapsed shortly after 1:05 a.m., and the EMS report which reflects that at 2:17 a.m. the decedent had fixed and dilated pupils, indicating that he had been brain dead for at least half an hour. From these factors, defendants argue that by the time Nurse Deason arrived at 2:07 a.m., no chance of survival remained to the decedent. Naturally, if the decedent had no chance of survival when Nurse Deason arrived, then any negligence on her part could not have been a cause in fact of any damages claimed on behalf of the decedent or by the plaintiffs.

■As .to Mrs. Madison’s testimony, it seems likely that she was just an hour off in her recollection or that she misspoke. It is not reasonable to assume that for approximately an hour no one called for an ambulance or some kind of emergency assistance. There is nothing in the testimony of any other witness, either fact or | fiexpert, from which it could be inferred that the decedent’s collapse occurred any where near as early as 1:05 a.m.

Likewise, the fact finder did not have to accept at face value the vague and uncertain testimony of Dr. Hightower that he may have attempted to administer first aid assistance to the decedent for perhaps as long as 15 to 30 minutes before Nurse Deason arrived. Even if this were a de novo review, this Court would find that the most reasonable inferences to be drawn from the record as a whole coincide with the timeline propounded by the plaintiffs and adopted explicitly by the trial judge and implicitly by the jury.

As to the defendants contention that the decedent was already brain dead when Nurse Deason arrived, the defendants argue in brief that:

The only evidence [that] Mr. Madison even had a pulse between the time Nurse Deason arrived and the EMS arrived is the testimony of Dr. Hightower, who said he had a pulse for approximately thirty seconds, the entire time he worked to resuscitate the man.

However, Nurse Deason testified that:

The pulse and respiration were present when I arrived on the scene. I did not stop and count a full minute of respi-rations nor a full minute of pulse, I did not do that.

Dr. Michael Magoon was qualified as an expert for the plaintiff in emergency medicine protocol and pre-hospital standard of care. He is an Advanced Cardiac Life Support (ACLS) instructor and has other impressive qualifications in the ACLS and pre-hospital care fields. He testified that, “more probable than not [the decedent] did not have a cardiac arrest at 1:35 and suddenly get a pulse back at 2:07 with basic CPR.” Following Dr. Magoon’s timing, as supported by Nurse Deason’s testimony, it is unlikely that the decedent had been brain dead for thirty minutes prior to 2:17 a.m. Dr. Magoon also testified that [7Nurse Deason should have brought the defibrillator with her when she responded to the call of “man down.” Dr. Magoon also noted that Nurse Deason’s report did not indicate that water prevented her from defibrillating, an issue addressed below.

Thus, viewing the record as a whole, we would have to say that a reasonable fact finder could conclude that the decedent had a reasonable chance of survival with a reasonable quality of life when Nurse Dea-son arrived at 2:07. The fact that on this issue the record would have also permitted a reasonable fact finder to draw contrary inferences more favorable to the defense, does not permit this Court to find that the jury was manifestly erroneous in implicitly drawing reasonable inferences favorable to the plaintiffs in this regard.

Yolanda Lacoix, another nurse who happened to be present on the scene, could not recall the exact timing, but one can infer from her testimony both that she also detected a pulse in the decedent immediately before Nurse Deason arrived on the scene and, contrary to the position argued by the defendants, that Nurse Deason arrived on the scene only a couple of minutes after the decedent went down:

A. Well, I remember hearing the noise, I was with several family members and I saw a man had fallen back out of a chair and he was lying on the floor on his back.
Q. Since you were attending the ball, you were there as a guest?
A. Yes.
Q. Did you know this person?
A. No.
Q. What did you do next?
A. Well, I kneeled down beside him and took his pulse and I remembered him having a pulse. I don’t remember how fast or slow but at the same I kneeled down there was another gentlemen that kneeled down on the other side and was taking his pulse on the other side. He told me he was an EMT.
| sAfter that they had a lot of commotion and somebody in the crowd there was a female that came and somebody said she was a physician [ (a fact finder could reasonably infer that this was Nurse Deason because she was attired in medical garb and there is no record of any other female doctor on the scene — and that is the inference that this court would draw de novo) ], somebody in the crowd, but I don’t know if she was, then I stood up and the other gentleman stayed there and I kind of stepped back and I remember, I don’t know how long it was but they started CPR on him.

The sequence of events described by Robert Royal, a food service supervisor, relative to the time CPR was commenced also permits the reasonable inference that Nurse Deason was summoned to the scene promptly after the decedent went down, not half an hour or more as suggested by the defendants.

Tulane makes the excellent argument that if the presence of water on the floor prevented the use of a defibrillator by the EMS crew, as was found to be the case, by the trial judge in its reasons for judgment, it would have equally prevented the use of the defibrillator by the Nurse Deason. Therefore, if the EMS crew was not negligent, then Nurse Deason for the same reason is also not negligent. Conversely, if Nurse Deason was negligent, then the EMS crew was also negligent. If the only issue were the wetness of the floor this argument would be compelling. However, even if the floor wasn’t wet, the record would support the finding of the jury attributing negligence and causation to Nurse Deason while simultaneously supporting the trial judge’s finding that the EMS crew was not negligent and/or that the negligence of the EMS crew did not contribute to the decedent’s death. This is because by the time the EMS crew arrived on the scene, the decedent’s chance of survival dropped virtually to zero, even assuming that defibrillation had been administered immediately. At that point any negligence by the EMS crew pwould not have contributed to causation, regardless of whether we adopt the timing suggested by the defendants or that suggested by the plaintiffs. In other words, even were we to apply a de novo standard of review, because of the erroneous finding of wetness by the trial judge, we would assign no liability to the EMS crew.

This apparent inconsistency raises a novel question: In a bifurcated trial, when the results reached by the judge and jury are consistent, but those results are based on what may be an inconsistency in underlying findings, what is the effect and what standard of review should be employed? In this regard, this Court has conducted an exhaustive review of all bifurcated trial cases in ' Louisiana going back approximately twenty years. Those that might have' any even remote relevance at all to the instant- case are the following: Breaux v. Touchet, 2001-1500 (La.App. 3 Cir. 6/26/02), 821 So.2d 774; Mossy Motors, Inc. v. Sewerage and Water Bd. of City of New Orleans, 98-0495 (La.App. 4 Cir. 5/12/99), 753 So.2d 269; Edwards v. Daugherty, 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112; Griffin v. International Ins. Co., 98-431 (La.App. 3 Cir. 10/7/98), 727 So.2d 485; Wyatt v. Red Stick Services, Inc., 97-1345 (La.App. 3 Cir. 4/1/98), 711 So.2d 745; Eppinette v. City of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658; Hasha v. Calcasieu Parish Police Jury, 94-705 (La.App. 3 Cir, 2/15/95), 651 So.2d 865; Dowden v. Mid State Sand & Gravel Co., Inc., 95-231 (La.App.11/2/95), 664 So.2d 643; Cornish v. State, Dept. of Transp. and Development, 93-0194 (La.App. 1 Cir. 12/1/94), 647 So.2d 1170; Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94), 646 So.2d 1019; Buffinet v. Plaquemines Parish Com’n Council, 93-0840 (La.App. 4 Cir. 7/27/94), 645 So.2d 631; Richard v. Teague, 92-17 (La.App. 3 Cir. 5/4/94), 636 So.2d 1160; Longman v. Allstate Ins. Co., 93-0352 (La.App. 4 Cir, 3/29/94), 635 So.2d 343; Gilbert v. Laborde, 93-761 (La.App. 3 Cir. 2/2/94), 632 So.2d 1162; Ourso v. Grimm, 92-1274 (La.App. 3 Cir. 1/5/94), 630 So.2d 963; Carr v. City of New Orleans, 626 So.2d 374 (La.App. 4 Cir.1993); Haydel v. Commercial Union Ins. Co., 617 So.2d 137 (La.App. 5 Cir.1993);. Smith v. City of New Orleans, 616 So.2d 1262 (La.App. 4 Cir.1993); Stapleton v. Great Lakes Chemical Corp., 616 So.2d 1311 (La.App. 2 Cir.1993); White v. Frenkel, 615 So.2d 535 (La.App. 3 Cir.1993); Morales v. Tetra Technologies, Inc., 608 So.2d 282 (La.App. 3 Cir.1992); American Cas. Co. v. Illinois Cent. Gulf R. Co., 601 So.2d 712 (La.App. 5 Cir.1992); McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4 Cir.1992).

In this last case, McCullough, this Court also did an exhaustive survey of the jurisprudence as it existed at that time because of the conflict between the circuits as to what standard of review to apply where there is inconsistency between the findings of the jury and the findings of the judge in bifurcated trials, a conflict which in the many years since McCullough the Supreme court has declined to resolve in any definitive manner. Apparently the problem arises because of the different ways in which the circuits read Thornton v. Moran, 343 So.2d 1065 (La.1977), where the Supreme Court reversed and remanded to the court of appeal with instructions “to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based on l^the record.” Id. at 1065. In addition to the above cited cases, this Court has also reviewed all of the earlier cases discussed in McCullough. Going all the way back to the case of Bishop v. Shelter Insurance Company, 461 So.2d 1170 (La.App. 3 Cir.1984) and coming right up to the present, a number of these bifurcated trial cases refer to “a bifurcated trial where the jury and the judge reach conflicting findings of fact.” However, after reviewing all of the cases on this issue, we find that the “conflicting findings of fact” referred to are what might be better described as conflicting results, e.g., where the judge and jury allocate liability differently or make different damage awards. In the instant case, assuming that the judge and jury made different findings concerning the wetness of the floor, the result that they reached, that Tulane was 100% at fault and that the EMS crew was not at fault, was completely consistent. A reasonable fact finder could have gone either way on the issue of how wet the floor was.

In Bishop, supra, the jury found that one defendant was 10% at fault and that another was 30% at fault. The judge found that the Department of Transportation was free from fault. On appeal, the plaintiff argued with compelling logic that the jury implicitly must have found the Department of Transportation to be 60% at fault as it was the only other party to whom the 60% balance of the fault could have been attributed, which would necessarily conflict with the judge’s finding that the Department of Transportation was free from fault:

However, regardless of the jury’s intention, it did not, as a matter of law have the right or the duty to determine whether the Department of Transportation was at fault and, if so, the percentage thereof. LSA-R.S. 13:5105 clearly provides that, “No suit against the state or a state agency or a political subdivision shall be tried to a jury.” Thus, as a matter of law, the jury verdict has no weight on the issue of the State’s fault. It follows that since there is no conflict between the finding of fact by the jury |1?,and that by the judge on the issue of the State’s fault. It follows that since there is no conflict between the triers of fact, there is no need for the Court of Appeal to harmonize in accordance with the jurisprudence discussed above. It also follows that in our appellate review of the facts found by the jury and the facts found by the trial judge the applicable rule will be the well established test of whether the trier of fact was clearly wrong.

Id., 461 So.2d at 1174.

Similarly, in the bifurcated trial in Lasswell v. Matlack, Inc., 527 So.2d 1199 (La.App. 3 Cir.1988), the jury found one defendant free from fault, another 70% at fault, and the DOTD 30% at fault. However, the trial court found the DOTD free from fault. On review, the appellate court held:

We find no error in the action of the trial court and accordingly there is no need for this court to harmonize the conflicting findings. As a matter of law, the jury had no right or duty to adjudicate the fault of DOTD or assign any percentage of fault to it. Therefore, the jury’s verdict had no weight as to the issue of DOTD’s fault and there was no conflict between the findings of the jury and the trial judge. LSA-R.S. 13:5105; Dean v. Terrebonne Parish Police Jury, 510 So.2d 82 (La.App. 1st Cir.1987); Bishop v. Shelter Insurance Company, 461 So.2d 1170 (La.App. 3 Cir.1985), writ denied, 465 So.2d 737 (La.1985).

Lasswell, at p. 1201.

What Lasswell says is that for the jury to find one defendant 70% at fault does not conflict with the finding by the judge that the DOTD is free from fault, even where the jury found the DOTD to be 30% at fault because the jury had no authority to determine the fault of the DOTD. Only, for example, if the jury had found another defendant to be 60% at fault and the judge had found the DODT to also be 60% at fault would an irreconcilable inconsistency have arisen, the theory | ^apparently being that the judge and jury need not assign all fault, but that they can in no event assign more than 100% of the fault.

In the instant case, the results are even more consistent than they were in Bishop and Lasswell because in the instant case there is not even an implicit inconsistency between the judge and the jury concerning the allocation of fault. All fault was assigned and it added up to 100%. Applying the manifest error standard of review to the findings of both the judge and the jury in the instant case causes no inconsistency in result and does not raise the problem posed by the Supreme Court in Powell v. Regional Transit Authority, 96-0715, p. 6 (La.6/18/97), 695 So.2d 1326, 1330, where it was pointed out that the application of the manifest error standard of review to the results of both the judge and the jury where the two conflicted “would not reconcile conflicting decisions if each decision was supported by record evidence and therefore was not manifestly erroneous.” In spite of the Supreme Court’s reference to this problem in Powell, it elected not to resolve it. Therefore, in the instant case, where there is no inconsistency in the results reached by both judge and the jury, both are entitled to the deference afforded by the manifest error standard of review. The facts in the instant case do not reach the threshold where this Court’s holding in McCullough could be invoked to justify a de novo review of the findings of both the judge and the jury.

|uAlthough this result gives preference to the three tiered system of justice over what logic might seem to dictate, it seems like the proper solution until such time as the Supreme Court decides to give the lower courts more definitive guidelines.

Yolanda Lacroix, the bystander nurse, testified that she didn’t recall seeing or feeling any water on the floor and she doesn’t recall her ball-gown being stained or soiled by water damage.

Rommel Madison, D.D.S., the decedent’s cousin was on his knees assisting Dr. Hightower with the CPR. He didn’t notice any water on the floor and his pants did not get wet at all.

Robert Royal, a food service supervisor, testified that he saw no serious areas of water on the ballroom floor that evening, only some areas where someone may have dropped some ice.

Brent Washington, the husband of the decedent’s niece, testified on direct examination that he saw nothing on the floor and on cross-examination he testified specifically that there was no water on the floor. The defendants dismiss his testimony as biased, but the jury was entitled to weigh that in making credibility determinations — and we must infer that the jury found Mr. Washington’s testimony to be credible.

Therefore, the fact that the record contains contrary evidence that would permit a reasonable fact finder to conclude that the floor was wet, does not mean that the jury was manifestly erroneous in concluding, as it must have, that Nurse Deason was not prevented by reason of wetness from defibrillating the decedent. There is nothing so internally inconsistent or unworthy of belief in the testimony of Ms. Lacroix or Dr. Madison or Mr. Royal or Mr. Washington that would prevent a | ^reasonable fact finder from inferring that wetness would not have prevented Nurse Deason from defibrillating the defendant had she thought to do so. We cannot say that the jury was unreasonable or clearly wrong choosing to credit the testimony of these witnesses and in inferring from that testimony that wetness was not an issue, in preference to contrary testimony from other witnesses. For example, while Michael Demots, the Senior Supervisor of Public Safety at the Convention Center may have testified that he saw water, we infer that the confidence of the jury in that testimony was undermined by the fact that Mr. Demots made no mention of water on his written incident report form in the space provided for such observations.

Additionally, the defendants contend that Nurse Deason’s decision about whether it was too wet to defibrillate safely would be a judgment call, and therefore could not be considered to be a deviation from a standard of care. However, Nurse Deason testified that the presence of water was not a factor that entered into her decision making process.

Therefore, this case really boils down to two questions: (1) Was Nurse Deason negligent in failing to bring with her or promptly send for the heart monitor/defibrillator, and (2) did this negligence contribute to the decedent’s death and/or the loss of his chance of survival?

Plaintiffs introduced several excerpts from the ACLS textbook. Because Nurse Deason had had ACLS training, it was reasonable to hold her to the standards set forth in this text. One excerpt from the ACLS text describes the “IMPORTANCE OF DEFIBRILLATION ”:

A simple rationale supports defibrillation as early as possible:
- The most frequent initial rhythm in sudden cardiac arrest is V.F.
|1fi- The only effective treatment for VF is electrical defibrillation.
- The probability of successful defibril-lation diminishes rapidly over time.

Here is another relevant excerpt:

EARLY DEFIBRILLATION
Health professionals who have a duty to respond to a person in cardiac arrest should have a defibrillator available either immediately or within 1-2 minutes.
Finally, here is another excerpt:
In emergencies, critical medical procedures must be performed by the first trained personnel who respond.

Nurse Deason was the first responder in this case. Nurse Deason’s training had taught her that the emergency call of “man down” could include a cardiac event. She acknowledged that her ACLS training had taught her that the best way of determining heart rhythm is with a heart monitor. In the room where she was stationed she had at her disposal a portable unit with a shoulder strap that was a combination heart monitor/defibrillator. It was kept on top of the rolling “code cart” or “crash cart” which contained cardiac medication, IV fluids, airways and electric equipment. She also knew that a possible cause of the unconscious condition she found the decedent to be in along with his abnormal (agonal) breathing could be unstable ventricular tachycardia, a condition for which defibril-lation is generally indicated.

When she arrived on the scene she did not identify herself as a nurse to Dr. High-tower who was kneeling by the dying decedent. However, she was wearing a lab coat and was carrying medical equipment. She did not tell Dr. Hightower she had a defibrillator or cardiac medication across the hall. She explained this by saying that it was noisy, making communication difficult and that her “major goal |17was to make sure the man was getting the oxygen that he needed to survive.” She testified that, “I immediately assessed the status of the patient and saw that he had respiration. I opened his airway, started that process and asked for an ambulance.”

In questioning Nurse Deason, the plaintiff brought out that she had brought a wheel chair with her which proved worthless under the circumstances, but didn’t bring the “crash cart” which contained equipment that could have been useful should the emergency prove to be as dire as it proved to be. It does not take a medical expert to understand that it is difficult to envision a situation wherein a wheel chair would be of immediate value in a true emergency, but that it would be easy to envision an emergency wherein the crash cart could be of value. Even a layman would consider a cardiac event as one of the likely causes when someone collapses under circumstances such as existed in the instant case. In other words, common sense would tell one that “man down” could mean a cardiac event. Common sense would also tell one that if “man down” turned out to be a true emergency, which any responder would know is a reasonable possibility, that the rolling crash cart (which in this case also happened to include the heart monitor/defibrillator) could be of immediate value whereas the wheel chair would not. For example, if it turned out that the decedent had had a stroke or swallowed something that blocked his windpipe, other likely possibilities in a party setting, the wheelchair could serve no crisis value. The defendants do not contend that it would have taken Nurse Deason any longer to wheel in the crash cart than it took her to wheel in the wheel chair, i.e., the defendants do not contend that it would have put Nurse Dea-son at any material time disadvantage to bring the rolling crash cart instead of the wheel chair.

hsRhonda Green, R.N. testified for the plaintiffs. She is an ACLS certified nurse whose experience included eight years as an Emergency Room supervisor.

When Nurse Green was asked:

Now, based on everything you have reviewed considering your testimony, considering the inspection of the scene, considering the depositions that you’ve reviewed and so forth, to a reasonable degree of certainty did Jo Deason more probable [sic] than not violate and breach the standard of care for [registered nurses] who are ACLS trained in providing care to Mr. Madison at the Convention Center?

She responded: “Yes, I think she did.” She also acknowledged familiarity with ACLS statistics showing that there is a greater than 70% survival rate where someone with a proper shockable heart rhythm is defibrillated promptly.

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276-1277. Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. Id.; Descant v. Administrators of Tulane Educational Fund, 95-2127, p. 8-9 (La.App. 4 Cir. 1/21/98), 706 So.2d 618, 628. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Martin, supra. Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or |1flclearly wrong. Id.; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review. Id.; Martin, supra. The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. The evaluation of and resolution of conflicts in expert testimony are factual issues to be resolved by the trier of fact, and the determinations of the fact finder should not be disturbed on appeal in the absence of manifest error. Id.

Dr. Salvadore Velazquez, an expert cardiologist, testified on behalf of the plaintiffs. He rendered an opinion based on the assumption that the decedent collapsed at approximately 2:04 a.m.; that Nurse Deason was notified at 2:05 a.m.; that at 2:07 a.m., Nurse Deason noted that the decedent had a pulse and was breathing; that between 2:07 a.m. and 2:10 a.m. she recommended to bystanders and friends that they continue CPR on the decedent; that the decedent went into full cardiac arrest at 2:10 a.m.; that the paramedics arrived at 2:16 a.m. or 2:17 a.m. at which time they placed a heart monitor on the decedent and determined that there was asystor, i.e., no electrical activity; at 2:17 a.m. the paramedic noted ventricular fibrillation; and at 2:12 a.m. the decedent was administered an electrical shock with a defibrillator. Dr. Velazquez testified that at 2:07 a.m., the decedent,

had a pulse and a respiration so therefore that demonstrated that Mr. Madison had some type of rhythm in the heart that was provided the profusion and allowed him to have electrical and mechanical pumping of the heart.

Dr. Velazquez went on to explain that profusion “means blood flow going to various parts of the body”:

| znl have to base my presumption that the most common cause for someone to have a cardiac arrest and they collapse has been demonstrated that is ventricular tyachcardia and ventricular fibrillation.

Dr. Velazquez testified that at the time Nurse Deason detected the decedent’s pulse he could not have been in either ventricular fibrillation or Acystal (no electrical activity). Because the decedent was also breathing at the time, Dr. Velazquez asserted that there was “profusion” and that he must have been alive. Dr. Velazquez then testified that about 80% of the time in cardiac events such as the one to which the decedent succumbed, the process starts with ventricular tachycardia and progresses to ventricular fibrillation. Dr. Velazquez blamed a lack of oxygen for causing the irregular heartbeat that led to the decedent’s cardiac arrest. This lack of oxygen Dr. Velazquez attributed to the hardening of the arteries.

Dr. Velazquez’s review of the autopsy showed no heart rupture, which would have caused immediate death. Therefore, Dr. Velazquez concluded that had the decedent been defibrillated at the time it was noted that his heart had stopped, 2:10 a.m., there should have been a 70 to 80 percent chance of bringing the heart back to perfusion rhythm, i.e., a “rhythm that is compatible with life.” Dr. Velazquez opined that the decedent’s enlarged heart would not have prevented the decedent’s survival had early defibrillation been administered. Dr. Velazquez considered the effects of other aspects of decedent’s cardiac health and history and still concluded that the decedent probably had a 70 percent chance of survival with early defibrillation, and at least a fifty percent chance.

On cross-examination Dr. Velazquez also noted that the movement in this country and elsewhere “to have defibrillators in most public places is because [the] |21best chance that anyone can have to survive a sudden cardiac arrest is if that person is defibrillated promptly.”

The defendants contend that Dr. Velazquez’s assumptions are faulty because he was not aware of the fact that the paramedic report noted that the decedent’s pupils were fixed and dilated which, according to the defendants’ expert, Dr. Joseph Litner, would mean that the decedent had probably been brain dead for over half an hour. The defendants seem to imply that Dr. Velazquez may not have read the paramedic report. We note that near the beginning of his testimony when he was asked to list “some of the documents that you reviewed” he made no specific reference to the paramedic report. However, the question did not call upon him to list all documents that he reviewed, and it becomes apparent that Dr. Velazquez reviewed the paramedic report when he subsequently testified that:

At 2:17 according to the notes of the paramedic the patient was in ventricular fibrillation. That means in a regular rhythm of the heart. At 2:22 they mention a defibrillator that the patient received an electrical shock. [Emphasis added.]

Although, Dr. Velazquez’s testimony did not specifically refer to that portion of the paramedic report where the fixed and dilated pupils were noted, there is nothing in the record to suggest that Dr. Velazquez overlooked any portion of the report, including the reference to the fixed and dilated pupils. Nowhere in the record do we find any reference to the decedent’s fixed and dilated pupils when the defendants had the opportunity to cross-examine Dr. Velazquez regarding that issue. In effect, the defendants are suggesting on appeal that Dr. Velazquez failed to answer a question they never asked him, from which they wish this Court to infer that if he had been asked, his answer would have been favorable to the | ¡»,^defense. We find that the failure of Dr. Velazquez to address an issue of importance to the defense that the defense failed to raise when it had the opportunity to do so, does not create a presumption that Dr. Velazquez was unaware of the reference to fixed and dilated pupils in the paramedic report.

The Supreme Court explained the standard to be used in determining whether a JNOV is appropriate in Davis v. Wal-Mart Stores, Inc., 00-0445, p. 4-5 (La.11/28/00), 774 So.2d 84, 89:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Smith v. Davill Petroleum Company, Inc. d/b/a/ Piggly Wiggly, 97-1596 (La.App. 1 Cir. 12/9/98), 744 So.2d 23. See also Powell v. RTA, 96-0715 (La.6/18/97), 695 So.2d 1326; Anderson v. New Orleans Public Service, 583 So.2d 829 (La.1991); State of Louisiana, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir. 4/3/96), 673 So.2d 1249; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700; Engolia v. Allain, 625 So.2d 723, 728 (La.App. 1 Cir. 1993); Adams v. Security Ins. Co. Of Hartford, 543 So.2d 480, 486 (La.1989).

This is a tougher standard than preponderance of the evidence or even manifest error because the credibility of witnesses is not to be evaluated and all | ^reasonable inferences of factual issues are to be resolved in favor of the non-moving party, which would mean the plaintiffs in the instant case. Consequently, as we have found no manifest error in the judgment of the trial court and in the verdict rendered by the jury, per force we find no error in the refusal of the trial court to grant Tulane’s motion for a JNOV.

Similarly a directed verdict is appropriate only when the evidence overwhelmingly points to one conclusion. Hebert v. BellSouth Telecommunications, Inc., 01-00223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614. A directed verdict should be granted when, after considering all evidence in light and with all reasonable inferences most favorable to movant’s opponent, it is clear that facts and inferences point so overwhelmingly in favor of granting the directed verdict, that reasonable jurors could not arrive at a contrary result. Reed v. Columbia/HCA Information Systems, Inc., 00-1884 (La.App. 5 Cir. 4/11/01), 786 So.2d 142, writ denied 2001-1384 (La.6/22/01), 794 So.2d 796. If there is substantial evidence opposed to the motion for directed verdict, i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury. Brockman v. Salt Lake Farm Partnership, 33,938 (La.App. 2 Cir. 10/4/00); 768 So.2d 836, writ denied 00-3012 (La.12/15/00), 777 So.2d 1234.

Tulane contends, based on the testimony of the decedent’s widow, that it was error for the trial court to deny its motion for a directed verdict because the decedent collapsed a full hour before Nurse Deason was summoned to the scene. 124 This Court has already explained earlier in this opinion that Mrs. Madison must have just been an hour off on the time and that it is unreasonable to believe that the decedent collapsed at 1:05, but no one thought to summon help for an hour. For the same reasons why we rejected Tulane’s argument in connection with its JNOV motions, we must also reject Tulane’s directed verdict arguments.

As a final issue, the defendants complain that, even if they were to concede the issue of Lability for purposes of argument only, the amount awarded to the plaintiffs was clearly excessive “because of the poor quality of life that more probably would have resulted for Mr. Madison even assuming he could have been revived.” The defendants contend that Mr. Madison was already brain dead when Nurse Dea-son was summoned and, therefore, at most only a nominal amount should have been awarded. Defendants’ argument in this regard is based entirely on the testimony of their expert, Dr. Joseph Litner, who testified that in his experience a person is brain dead 20 to 30 minutes before the pupils become fixed and dilated. According to this line of reasoning and based on the EMS report showing fixed and dilated pupils at 2:17 a.m., the decedent would have been brain dead prior to the time Nurse Deason was summoned to the scene. However, Dr. Litner offered nothing more than his own opinion in this regard — no reference to any medical studies, texts or treatises — and the fact finder is free to reject his opinion in favor of the testimony of Dr. Magoon and Dr. Velazquez who both testified concerning the decedent’s chance of survival. Their opinions, as discussed previously, included a review of the EMS report — the report that referred to the fixed and dilated pupils. Moreover, Nurse Deason made no mention of fixed and dilated pupils in her report creating the possibility that the fact finder merely decided that the EMS report was in error in this regard. Furthermore, the | ;>Btime line suggested by the defendants’ argument on this issue would have meant that the decedent was brain dead prior to 2:00 p.m., prior to the time it is most reasonable to assume that he collapsed. Ñor is the defendants’ reference to Clark v. City of Shreveport, 31,407 (La.App. 2 Cir. 1/20/99), 726 So.2d 1042, persuasive. The brain dead decedent in Clark died of a gunshot wound to the head under facts too different from those of this case to permit of any helpful comparison. Unlike the decedent in the Clark case, the decedent in the instant case sustained no trauma to the head likely to directly cause brain damage and death.

As the defendants did not object to the amounts awarded other than on the theory that the decedent was brain dead and was, therefore, not deprived of any valuable quality of life, an argument we have rejected, we need not consider whether the awards were an abuse of the great and vast discretion of the fact finder. Regardless, and without going into any uncalled for detail, after reviewing the record as a whole, we find no such abuse of discretion.

For the foregoing reasons the judgment on the merits signed on December 14, 1999, is affirmed. The judgment of March 5, 2001 concerning the taxing of costs is reversed.

JUDGMENT OF DECEMBER 14, 1999, AFFIRMED; JUDGMENT OF MARCH 5, 2001, REVERSED.

      . There are countless obvious and not so obvious transcription errors in the record. Both appellants and appellees indicated that they had no objection to the corrections offered by their counterparts. This Court, therefore, agreed to grant the motions made by both sides suggesting corrections to the transcript.

      . This sum was broken, down as follows: To Lillie Madison $200,000.00 for loss of love and affection and $436,000.00 for loss of support; To Thaddeus Madison and Edward Madison $75,000.00 each for loss of love and affection; and $6,000.00 for funeral expenses.

      . There does not seem to be any dispute between the parties as to the meaning of "chance of survival” Instead, Tulane's appeal is based on the contention that no chance of survival existed by the time their employee, Nurse Deason, arrived on the scene. Therefore, according to Tulane, even if Nurse Dea-son was negligent, her negligence was not a cause in fact of the decedent’s death or loss of chance of survival.

      . Where there is no inconsistency, it is undisputed that the factual findings of both the judge and the jury are reviewed under the manifest error/clearly wrong standard.

      . In Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, the Supreme court rejected the de novo standard of review employed by the appellate court in Cornish in apportioning fault, hut for reasons unrelated to the inconsistent results arising out of the bifurcated trial.

      . This case was reversed in part by the Supreme Court, 627 So.2d 1358 (La.1993), but the opinion of the Supreme Court made no mention of the problem of conflicting results in bifurcated trials.

      . The reasoning in Lasswell in this regard was followed in Ourso, supra. Ourso notes the conflict with this Court’s leading case on this issue, McCullough, which Ourso says would mandate a de novo review instead of finding no conflict where the conflict arises out of the judge or jury making findings transcending the scope of their authority.

      . We recognize that in dicta in Bishop the court referred to the duty of the reviewing court to "harmonize” inconsistent judge and jury results in bifurcated trials which is different from the "independent review.” requirement adopted for this circuit in McCullough. However, this minor technical difference between the circuits which is discussed at length and with great erudition in McCullough, is not relevant here where there is no conflict in the allocation of fault as there was in McCullough.

      . "None of the plaintiffs' experts seemed aware of the fact that the ambulance run report noted the fixed and dilated pupils at 2:17 A.M." Likewise, Dr. Magoon, another of plaintiffs testified that he "reviewed the EMS run records at that time ...” and gave other testimony indicative of familiarity with the EMS report. Again, the defense failed to ask him any questions about the decedent's fixed and dilated pupils when they had the chance to do so on cross-examination.


author: _y?ETERS, J.

text:
    Leslie Ray HILLMAN, Jr. v. Nancy R. DAVIS.
    No. 02-0685.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 29, 2003.

      Terry W. Lambright, Attorney at Law, Leesville, LA, for Defendant/Appellant, Nancy R. Davis.
    Bradley O’Neal Hicks, Dowden & Hicks, L.L.P., Leesville, LA, for Defendant/Ap-pellee, Leslie Ray Hillman, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   _y?ETERS, J.

Nancy Renelle Davis appeals the trial court’s judgment removing her as sole custodian of her minor child, Kelsi DeAnne Davis, awarding joint custody of the minor child to her and the child’s father, Leslie Ray Hillman, Jr., and naming Mr. Hillman as the domiciliary custodial parent. For the following reasons, we reverse the judgment of the trial court.

DISCUSSION OF THE RECORD

Kelsi DeAnne Davis was born on November 8, 1991. Her parents, residents of Vernon Parish, Louisiana, were never married. The current litigation has as its roots Mr. Hillman’s August 11, 1992 petition to establish his paternal relationship with Kelsi. This pleading ultimately resulted in a December 11, 1992 consent judgment wherein Mr. Hillman was recognized as Kelsi’s natural father, Ms. Davis was granted sole custody subject to Mr. Hillman’s specific visitation rights, and Mr. Hillman was ordered to pay Ms. Davis $200.00 per month as child support.

Sometime after Kelsi’s birth, her parents went their separate ways and married other people. In 1997, Ms. Davis graduated from college and, in August of that same year, began teaching in the Vernon Parish school system. In January 1999, she left the public school system to spend more time with Kelsi. However, she continued to work as a substitute teacher in the Vernon Parish system. On December 3, 2000, Ms. Davis accepted employment as an education specialist with the Federal Bureau of Prisons (Bureau) in Buna, Texas. This career move prompted the litigation that is now before us.

According to Ms. Davis, her Vernon Parish home and Buna, Texas home are approximately two and one-half hours driving distance apart. She testified that her first year of employment with the Bureau constituted a probationary period during 12which she could be terminated at any time. While serving her probationary period, Ms. Davis chose to leave Kelsi in Vernon Parish in the weekday care of her parents and sister. Each weekend, Ms. Davis returned to Vernon Parish to be with her daughter.

On September 24, 2001, over nine months after Ms. Davis began her employment with the Bureau, Mr. Hillman filed a rule to show cause, seeking to have the trial court change the sole custody award to one of joint custody and award him the designation as custodial parent. In his pleading, Mr. Hillman complained that Kelsi was living with her aunt, and not Ms. Davis, and that, on occasion, he had been denied his right to exercise his visitation rights with Kelsi. Ms. Davis answered the rule asserting that Kelsi’s current living arrangements were temporary. Additionally, she reconvened to Mr. Hillman’s demand, seeking, among other things, an increase in monthly child support, an order requiring Mr. Hillman to provide Kelsi with dental insurance, and permission to relocate Kelsi to Texas. The trial court originally scheduled the matter for hearing on October 30, 2001. Mr. Hillman had the matter rescheduled twice, first to December 18, 2001, and then to February 8, 2002.

In December 2002, Ms. Davis completed her one-year probationary period, was granted permanent employment status by the Bureau, and moved Kelsi to Buna, Texas. Although Mr. Hillman filed a general denial answer to Ms. Davis’ reconven-tional demand, he did not file any additional pleadings complaining of the relocation.

At trial, Mr. Hillman testified vaguely concerning his denial of visitation privileges. While asserting that Ms. Davis had denied him visitation privileges on occasion, Mr. Hillman did not specify how often or under what circumstances the ^denials occurred. Ms. Davis disputed Mr Hillman’s assertion in this regard and testified that Mr. Hillman exercised his visitation privileges regularly. Additionally, Mr. Hillman acknowledged that his two-week offshore employment shifts interfered with his visitation and that, on occasion, his wife or mother would care for Kelsi during his visitation periods.

Mr. Hillman’s primary initial complaint related to the fact that Kelsi was not physically residing with her mother. He testified that once Ms. Davis moved Kelsi to Texas, his concerns changed to the question of his daughter’s supervision while Ms. Davis worked. However, he acknowledged that he took no steps to investigate the Texas supervision situation. Ms. Davis testified that she decided to leave Kelsi with her parents and sister during her probationary period to avoid subjecting Kelsi to new and strange surroundings without the security of job permanency. She felt that Kelsi’s best interest would be served by having her sister and parents care for her during the week so that she would remain in a familiar school and family environment pending a final decision on relocation. The short drive to Buna allowed Ms. Davis to return to Vernon Parish every weekend to be with her daughter. Additionally, according to Ms. Davis, Kelsi had begun to make new friends in her environment and had adjusted very well to the relocation. Ms. Davis testified that any supervision concerns of Mr. Hill-man are not well-founded because Kelsi is supervised by a neighbor when she is working. Before agreeing to allow the neighbor to look after Kelsi, Ms. Davis questioned other neighbors, including a Texas state police officer, about the neighbor’s reliability and received excellent reports.

In his testimony, Mr. Hillman also expressed concern about Kelsi’s school performance and her health. Kelsi has been diagnosed with attention deficit disorder |4and, according to her mother, has problems with emotional issues. Both Kelsi’s second grade teacher, Joy Nell Wiggins, and her third grade teacher, Melody Parker Woodham, testified that Kelsi had poor work habits and was inattentive in class. Both teachers discussed the problems with Ms. Davis, and, although Kelsi’s situation did not improve, both found Ms. Davis to be interested in Kelsi’s educational well-being. Kelsi attended Simpson Elementary School during this time. However, in the fall of 2002, when Kelsi began the fourth grade, Ms. Davis transferred her to Leesville Elementary School. This transfer had a positive effect, as her grades immediately improved. Additionally, Ms. Davis testified that she had recognized Kelsi’s problems early on and had enrolled her in psychological counseling both in Louisiana and Texas.

The trial court took the matter under advisement and issued its judgment on the rule on February 14, 2002. In granting a change in custody, the court concluded the following:

The current custody order was entered on December 4, 1992. It was a stipulated judgment and the Bergenon [sic] Rule does not apply to this hearing. In the 1992 decree the mother, Nancy R. Davis, was granted sole custody with the father having specified weekend, holiday and summer visitation.
The testimony established that the mother was the primary caretaker of Kelsi, age 10 years. The mother testified that the father consistently exercised his weekend visitation, some holiday visitation, and some summer visitation. He has been a big part of the child’s life according to the mother.
The evidence also established that the mother has provided for and cared for the child adequately. There are relatives and extended family members here in Vernon Parish on both the maternal and paternal sides which have been a significant part of the child’s life.
Evidence showed that the mother lived full-time in Vernon Parish with Kelsi prior to December 4, 2000. Then, on that date, the mother began working in Beaumont, Texas and left Kelsi with an aunt during the week. The mother would return on weekends and stayed either with her sister or her parents. This arrangement went on until November-1, 2001 when the mother and Kelsi lived full-time with her parents. Then, |Bm January, 2002, the mother moved permanently, with Kelsi, to Buna, Texas.
The court notes that the move to Texas was made without conferring in advance with the father or giving the statutory notice required. Also, the child’s school was changed as a part of this and she now lives in and attends school in a place that is foreign to her.
Considering the factors of Civil Code Article 134, the court finds that the best interest of the child, Kelsi, would be served by remaining in Vernon Parish. This parish has been her home all of her young life. Her family, school and social ties are all here. Both parents can provide love, affection and educational guidance for the child. The mother has moved Kelsi, several times from one residence to another since December 2000. On the other hand, the father has been living in a stable environment that Kelsi is familiar with. Another major consideration is the mother’s lack of communication with the father about decisions affecting the welfare of the child.

The trial court then granted joint custody to Ms. Davis and Mr. Hillman, designated Mr. Hillman as domiciliary custodial parent, and granted Ms. Davis physical custody of Kelsi in accordance with the same schedule as that of Mr. Hillman in the consent custody agreement. Ms. Davis appeals, asserting two assignments of error: 1) the trial court committed legal error in failing to find a material change in circumstances since the consent decree, and 2) the trial court’s modification of the consent decree was clearly erroneous.

OPINION

In its reasons for judgment, the trial court made no mention of Mr. Hillman’s complaints concerning visitation, supervision, or Kelsi’s school performance. The basis of the decision to change the prior custody decree appears to be based entirely on the presence of extended family in Vernon Parish. For the following reasons, we conclude that the trial court erred in its judgment changing the custodial arrangement.

On appeal, a trial court’s ruling on a change of custody request may only be disturbed if .the reviewing court determines that the trial court abused its discretion in making its ruling. Franklin v. Franklin, 99-1738 (La.App. 3 Cir. 5/24/00), 763 So.2d 759. In addition, a reviewing court may set aside the trial court’s finding of fact only upon determining that the trial court was manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue is whether the trial court’s conclusion was reasonable in light of the entire record. Mart v. Hill, 505 So.2d 1120 (La.1987).

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the supreme court established a heavy burden for one attempting to modify a prior considered decree establishing a custodial relationship. The party seeking the change must prove that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantage to the child.” Id. at 1200. However, a parent seeking to modify a consent custody decree is required to establish that a material change of circumstances has occurred since the original decree and that the proposed custody arrangement is in the best interest of the minor child. Schuchmann v. Schuchmann, 00-0094 (La.App. 3 Cir. 6/1/00), 768 So.2d 614. The trial court in this matter correctly recognized that the December 4, 1992 consent judgment was not a considered decree subject to the stringent Bergeron requirements.

In her first assignment of error, Ms. Davis asserts that the trial court failed to find that Mr. Hillman had established the existence of a material change in circumstances before modifying the custody arrangement. She points out that the judgment on the rule does not contain a discussion or even a reference to such a finding. Thus, she urges this court to conduct a de novo review of the record rather than simply assume that the trial court made such a finding.

|7We agree that the trial court did not specifically mention the change of circumstance requirement of a Schuchmann analysis, although it does make reference to Ms. Davis’s relocation to Texas and her moving Kelsi out of state without conferring with Mr. Hillman or giving him notice of the relocation. This is apparently a reference to La.R.S. 9:355.1 et seq. which governs the relocation of a child’s residence by a custodial parent. Louisiana Revised Statutes 9:355.3(A) provides that the custodial parent “shall notify the other parent of a proposed relocation of the child’s principal residence as required by R.S. 9:355.4.” (Emphasis added.) Notification under La.R.S. 9:355.4 requires the following:

A. Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, to the last known address of the parent no later than either:
(1) The sixtieth day before the date of the intended move or proposed relocation.
(2) The tenth day after the-date that the parent knows the information required to be furnished by Subsection B of this Section, if the parent did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
B. The following information, if available, shall be included with the notice of intended relocation of the child:
(1) The intended new residence, including the specific address, if known.
(2) The mailing address, if not the same.
(3) The home telephone number, if known.
(4) The date of the intended move or proposed relocation.
(5) A brief statement of the specific reasons for the proposed relocation of a child, if applicable.
(6) A proposal for a revised schedule of visitation with the child.
|SC. A parent required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.

Upon receipt of the notice required by La.R.S. 9:355.4, the non-custodial parent has twenty days in which to seek “a temporary or permanent order to prevent the relocation.” La.R.S. 9:355.8(A). If the non-custodial parent fails to object within the specified twenty days, the custodial parent may then relocate the child’s principal residence. La.R.S. 9:355.7. If a custodial parent gives the appropriate relocation notice, the proposed relocation “shall not constitute a change of circumstances warranting a change of custody.” La.R.S. 9:355.11 (emphasis added). However, if the custodial parent fails to give the required relocation notice, that failure “may constitute a change of circumstances warranting a modification of custody.” Id. (emphasis added).

Mr. Hillman testified that he received written notice through the mail that Kelsi had been relocated to Texas approximately four days after the relocation had occurred. However, he did not elaborate on the content of the written notice, nor did he complain of any insufficiency of the information provided. In fact, he testified that he had no objection to Ms. Davis’ move to Texas — only a concern for his child’s well-being in Texas. Ms. Davis testified that she provided Mr. Hillman with a certified letter informing him of Kelsi’s relocation at approximately the same time as the relocation.

While it is clear- that Ms. Davis contemplated moving Kelsi to Texas as soon as she acquired permanent employment status with the Bureau, it is not clear from the evidence presented by Mr. Hillman that she had access to all information required by La.R.S. 9:355.4(B) within sixty days of the contemplated relocation. It is clear that 13she forwarded notice within ten days of the actual relocation. Equally important, Mr. Hillman did not file an objection to the relocation as required by La. R.S. 9:355.8(A). Therefore, the question of notice or lack of notice was not an issue before the trial court in this phase of the custody litigation. That being the case, any failure of notice cannot be used to constitute a change of circumstances warranting a modification of custody.

Therefore, we find merit in Ms. Davis’ first assignment of error that requires reversal of the trial court’s judgment modifying the previous custody arrangement. Additionally, the parties stipulated at the beginning of the trial that, if Mr. Hillman was not successful in his efforts to change custody, Ms. Davis would be entitled to an increase in child support to $246.00 per month. We do not need to remand this matter to the trial court to effect this stipulation and award Ms. Davis that amount on appeal.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court granting Leslie Ray Hillman, Jr. and Nancy Renelle Davis joint custody of their minor child, Kelsi DeAnne Davis, and naming Leslie Ray Hillman, Jr. the child’s domiciliary custodial parent. In doing so, we reinstate the December 11, 1992 consent judgment in so far as it awarded the sole custody of Kelsi DeAnne Davis to Nancy Renelle Davis and awarded Leslie Ray Hillman, Jr. specific visitation privileges. Pursuant to the stipulation entered into at trial, we amend the December 11, 1992 judgment to require that Leslie Ray Hillman, Jr. pay Nancy Renelle Davis $246.00 per month as support of Kelsi DeAnne Davis. We assess Leslie Ray Hillman, Jr. with all costs of court.

|inREYERSED AND RENDERED.


author: | .MAX N. TOBIAS, JR., Judge. | ARMSTRONG, J.,

text:
    In re MEDICAL REVIEW PANEL PROCEEDING OF Eloise POCHE v. Dr. Christopher A. BLOOM, Dr. Jan T. McClanahan and Chalmette Medical Center, Inc.
    Nos. 2002-C-1542, 2002-C-1721.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 31, 2003.
    David A. Bowling, R. Suzanne Ford, Wilson & Bowling, New Orleans, LA, for Chalmette Medical Center, Inc.
    Jacqueline Mae Goldberg, New Orleans, LA, for Eloise Poche.
    Edward J. Rice, Jr., Frederick T. Gres-chner, Jr., Adams & Reese, LLP, New Orleans, LA, for Jan T. McClanahan, M.D.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   | .MAX N. TOBIAS, JR., Judge.

In these consolidated applications for supervisory writs of relators, Jan T. McClanahan, M.D., and Chalmette Medical Center, Inc. (“Chalmette Medical Center”), we grant certiorari to review judgments of the trial court overruling exceptions of prescription.

On 21 February 1999, the plaintiff, Eloise Poche (“Ms.Poche”), sought treatment at the Chalmette Medical Center emergency room for an abdominal abscess. The emergency room physician ordered a consultation by Dr. McClanahan, a general and vascular surgeon. On 22 February 1999, Dr. McClanahan performed surgery to excise and drain the abscess.

On 5 March 1999, Ms. Poche sought emergency room treatment at Lakeland Hospital due to a recurrence of the infection in her abdomen. That same day, she underwent a surgical excision of the infected wound. On 6 March 1999, Richard D. Vallette, M.D., operated on Ms. Poche a second time, evacuating, cleansing, and packing the wound. Following her discharge from Lakeland Hospital, Ms. LPoche was treated at a rehabilitation facility on Canal Street in New Orleans until sometime in June of 1999.

Ms. Poche filed a medical malpractice complaint with the Louisiana Patients’ Compensation Fund on 24 May 2000, naming as defendants Dr. McClanahan, Chal-mette Medical Center, and Christopher Bloom, M.D., her internist. She alleged that the defendants committed medical malpractice when they “negligently performed an operation removing an abscess from [her] abdominal wall” and “failed to properly dress and maintain [her] wound after the operation.” Ms. Poche claimed that the alleged malpractice caused her to “undergo extensive corrective treatment.” Specifically, Ms. Poche asserted that the alleged malpractice occurred between 21 February 1999 and 25 February 1999.

In response to the medical malpractice complaint, Dr. McClanahan filed an exception of prescription and Chalmette Medical Center filed a Petition to Assert Prescription and an Exception of Prescription pursuant to La. R.S. 40:1299.47B(2)(a). Ms. Poche’s testimony at the hearings of the exceptions establishes that following her discharge from Chalmette Medical Center she experienced problems with her abdominal wound in late February or early March 1999. Despite this testimony, the trial judge overruled the exception of prescription. The court’s reasoning was essentially the same on both exceptions; in no. 2002-C-1721, the trial court held:

I am going to rule again in the same manner that the prescription does not begin until after the lady is discharged even though the defendants were not providing continuous care for this lady. She was being | scared for as a result of problems which she sustained on the original matter. I am not making a judgment call yet on whether there was malpractice or there wasn’t malpractice. If later, you feel like someone has hurt you, I don’t blame you for going to another facility to seek treatment. If that treatment is for the malady that you incurred or which hurt you from the other facility, until you are discharged, I am not going to place a burden on anyone to leave their hospital bed and seek legal counsel. I don’t think the law is that unfeeling that you have to lay in your hospital bed and worry about suing somebody until you are discharged.... [T]he prescription does not begin to run until after she is released from the rehabilitation center.

La. R.S. 9:5628, relative to prescriptive periods for medical malpractice actions, provides, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, dentist, psychologist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Recently, in the case of Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, the Louisiana Supreme Court held that:

La.Rev.Stat. Ann. 9:5628 provides two prescriptive limits to bring a medical malpractice action, either one year from the date of the alleged act, omission, or neglect or within one year from the date of discovery of the alleged act, omission, or neglect, but not more than three years from the alleged act of malpractice. A petition should not be found prescribed on its face if it is brought within one year of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient. |4In determining whether the date of discovery interrupted prescription, the ultimate issue is the reasonableness of the patient’s action or inaction, in light of his or her education, intelligence, the severity of the symptoms, and the nature of defendant’s conduct.

Id. at p. 18, 828 So.2d at 514.

As to when prescription commences, the Supreme Court in Campo stated:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3 Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Griffin v. Kinberger, 507 So.2d 821 (La.1987).

Id. at pp. 11-12, 828 So.2d at 510-11.

Ms. Poche’s testimony at the exceptions reflects that during the week immediately following her discharge from Chalmette Medical Center, her wound | .¡worsened and turned red. She experienced an increase in pain and a foul odor developed at the wound site. Ms. Poche further testified that during the week of 25 February 1999, her wound turned from red in color to black. She acknowledged that she thought the change in her wound condition was “unusual” and a “problem” that required emergency medical treatment. In fact, Ms. Poche underwent emergency surgery on the abdominal wound at Lakeland Hospital just one week following her 25 February 1999 discharge from Chalmette Medical Center.

Clearly, in view of her testimony, Ms. Poche, a certified nursing assistant, was aware of her claim of medical malpractice before 24 May 1999, one year before the date she filed her medical malpractice complaint. Ms. Poche had sufficient knowledge to excite attention and put her on guard for further inquiry when she realized the unusual problems with her abdominal wound and sought emergency medical treatment at Lakeland Hospital on 5 March 1999. Thus, Ms. Poche should have filed her medical malpractice complaint within one year from that date or 5 March 2000. Her complaint filed on 24 May 2000 had prescribed.

In denying the exceptions of prescription, the trial court concluded that prescription commenced when Ms. Poche was discharged from the rehabilitation center. However, Ms. Poche neither alleged facts with particularity in her complaint nor testified at the trial of the exception of prescription to show that she was unaware of malpractice prior to her being discharged from the rehabilitation center. Therefore, we find that the trial court erred holding that prescription commenced when Ms. Poche was discharged from the rehabilitation center and in overruling the exceptions of prescription.

Accordingly, the judgment of the trial court overruling Dr. McClanahan’s and Chalmette Medical Center’s exceptions of prescription are reversed. Judgment |fiis hereby rendered in favor Dr. McClanahan and Chalmette Medical Center, maintaining their exceptions of prescription and dismissing Ms. Poche’s claims against them.

REVERSED AND RENDERED.

ARMSTRONG, J., dissents with reasons.

| ARMSTRONG, J.,

dissenting with reasons.

I respectfully dissent. I would deny the writ applications and affirm the judgment of the trial court.

The plaintiff, Ms. Poche, was first seen at Chalmette Medical Center on February 21, 1999. The next day, February 22, 1999, she was operated on by defendant Dr. Jan McClanahan. Ms. Poche was discharged from Chalmette Medical Center on February 25,1999.

The surgical wound became ipfected and Ms. Poche went to Lakeland Hospital on March 5, 1999. She underwent surgery for the infection at Lakeland Hospital on March 5 and 6, 1999. Ms. Poche was hospitalized at Lakeland Hospital until March 23, 1999 at which time she was transferred to physician’s Long Term Hospital where she remained until June, 1999.

The trial court overruled the prescription exceptions on the ground that prescription did not begin to run until Ms. Poche was discharged from the hospital in June, 1999. The trial court, after conducting an evidentiary hearing, including the live testimony of Ms. Poche, found that, because Ms. Poche was hospitalized as a result of the alleged negligence of the defendants and because she was prevented by her hospitalization from filing suit, prescription did not begin to run until Ms. Poche was discharged from the hospital.

hThe trial court’s findings of fact may not be disturbed unless they are clearly wrong-manifestly erroneous. In any case, the trial court’s finding of fact, that Ms. Poche was hospitalized until June, 1999 due to the alleged negligence of the defendants and that Ms. Poche’s hospitalization prevented her from filing suit, are supported by the record.

In a case where injuries to the plaintiff caused by the alleged negligence of the defendant prevent the plaintiff from filing suit, prescription does not begin to run until the plaintiff has recovered sufficiently from the injuries so as to be able to file suit. Corsey v. State, Dept. of Corrections, 375 So.2d 1319 (La.1979). Thus, in the present case, prescription did not beign to run until June, 1999 so the filing of the medical malpractice claims were timely.

Lastly, I note that the trial court expressly did not rest its decision upon “continuous treatment” of Ms. Poche by the defendants, so I express no opinion as to whether continuous treatment prevents prescription from running.