author: | .WHIPPLE, J.

text:
    Danny SANCHEZ v. GEORGIA GULF CORPORATION, Kroll Laboratory Specialists, Inc. and Consolidated Drug Compliance & Management, Inc.
    No. 2002 CA 1617.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 13, 2003.
    Rehearing Denied Sept. 17, 2003.

      Andre LaPIace, Baton Rouge, for Plaintiff/Appellee, Danny Sanchez.
    F. Charles Marionneaux, Plaquemine, for Defendant/Appellant, Georgia Gulf Corporation.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .WHIPPLE, J.

Defendant, Georgia Gulf Corporation, appeals the judgment of the trial court, granting the motion for partial summary judgment and “Motion for Res Judicata” of plaintiff, Danny Sanchez, finding that Georgia Gulf had failed to properly follow statutory procedures for his employment-related drug testing and, thus, that the “positive” test result was invalid as a matter of law. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 15, 2000, Sanchez, an “at-will” employee of Georgia Gulf, submitted to a random drug screen urinalysis. He was subsequently terminated from employment on June 22, 2000, for allegedly testing positive for the presence of a cocaine metabolite, Benzoylecgonine. Thereafter, on September 26, 2000, Sanchez instituted this action against Georgia Gulf, contending that it had breached its statutory duties to him in dismissing him on the basis of a positive drug test without first allowing him the opportunity to provide information about prescription medication he was taking that could result in an erroneous positive result. Sanchez sought damages for physical and mental pain and suffering, loss of income, loss of reputation and medical expenses.

Georgia Gulf responded by filing a motion for summary judgment, essentially contending that because it could fire Sanchez “for any reason or |afor no reason” pursuant to the at-will employment doctrine, Sanchez had no claim for damages for wrongful termination. In opposing the motion, Sanchez contended that LSA-R.S. 49:1001 et seq., the statutory scheme governing employment-related random drug testing (“the drug-testing statute”), provided a statutory basis for his claim for damages. He argued that where termination was based upon drug-testing results, certain statutory requirements must be met, such as review of the results by a medical review officer and questioning of the employee as to any medications he may be taking which may give rise to a false positive result. According to Sanchez, these statutory requirements were not followed herein, and, therefore, he had a statutory claim against Georgia Gulf for damages associated with Georgia Gulfs employment-related actions, including his wrongful termination.

Thus, Sanchez also filed a cross-motion for summary judgment, contending that he was entitled to judgment in his favor, declaring that “the ‘positive’ cocaine test result attributed to him was invalid as a matter of law.” Sanchez also filed a “Motion for Res Judicata,” wherein he moved to have the court apply the doctrine of res judicata to certain stipulations made by Georgia Gulf in an administrative hearing before the Louisiana Appeals Tribunal for the Office of Regulatory Services. Based on those stipulations, Sanchez requested that the court find as a fact that “[t]he procedures for drug testing Danny Sanchez’s random employment urine specimen were not properly followed by the employer Georgia-Gulf Corporation.” (Underscore omitted).

At the hearing on the motions, Georgia Gulf conceded that it had not 14followed the procedures mandated by LSA-R.S. 49:1007, in that the results of Sanchez’s urinalysis were not reviewed by a medical review officer prior to disciplinary action being taken. Nonetheless, it contended that LSA-R.S. 49:1001 et seq. does not prohibit an employer from taking disciplinary action against an employee, such as termination of employment, based on a positive drug test even though the drug testing results are obtained without compliance to the drug-testing procedures set forth therein. Thus, it contended that it was still free to fire Sanchez pursuant to the at-will employment doctrine.

Following the hearing on the motion, the trial court concluded that LSA-R.S. 49:1001 et seq. grants an employee a ‘cause of action for damages, including damages for wrongful termination, where the employee is fired because of urinalysis results obtained without compliance to the statutory drug-testing provisions. Accordingly, the trial court denied Georgia Gulfs motion for summary judgment; granted Sanchez’s motion for summary judgment, declaring that the “positive” cocaine test result attributed to Sanchez was invalid as a matter of law; and granted Sanchez’s “motion for res judicata,” regarding a finding of fact that the procedures for testing Sanchez’s random employment mine specimen were not properly followed by Georgia Gulf.

From this judgment, Georgia Gulf appeals, challenging the granting of Sanchez’s motion for summary judgment and the granting of his motion for res judicata.

| .LOUISIANA’S DRUG-TESTING STATUTE

Prior to addressing Georgia Gulfs assignments of error herein, a brief overview of Louisiana’s drug-testing statute is necessary for an understanding of the issues presented. In 1990, the Louisiana legislature adopted drug-testing procedures set forth in LSA-R.S. 49:1001 et seq., that are designed to protect individual constitutional rights. See Phelps v. Louisiana State Racing Commission, 611 So.2d 739, 741 (La.App. 4th Cir.1992). Pursuant to this legislation, drug testing of Louisiana residents and of all samples collected in this state shall be performed in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs, as issued by the National Institute on Drug Abuse Guidelines and published in the Federal Register (“NIDA guidelines”). LSA-R.S. 49:1005(B); LSA-R.S. 49:1001(14). The NIDA Guidelines specify collection and testing procedures in order to assure accurate and unadulterated tests, set out specific requirements for reviewing and interpreting positive results and require that a medical review officer review the drug tests prior to reporting the results to the employer. Price v. City of Bossier City, 96-2408, pp. 2-3 (La.5/20/97), 693 So.2d 1169, 1171.

Specifically, the statutory framework contemplates that the sample be collected by a trained individual known as the “collection site person.” LSA-R.S. 49:1006; LSA-R.S. 49:1001(5); 59 Fed.Reg. 29908 §§ 1.2 & 2.2. The transfer of the sample to an appropriate laboratory is then regulated to ensure a proper chain of custody. LSA-R.S. 49:1006(E).

[fiPursuant to the statute, an initial or screening test is then performed on the sample. This test is an immunoassay-screen used to eliminate “negative” urine specimens from further consideration. LSA-R.S. 49:1008; LSA-R.S. 49:1005(A); LSA-R.S. 49:1001(9). The initial or screening test may be performed either by a NIDA-certified laboratory or laboratory certified for forensic urine drug testing by the College of American Pathologists (“CAP-FUDT-certified laboratory”) or by a “screening laboratory,” which is a facility that is state-certified, but not NIDA- or CAP-FUDT-certified. LSA-R.S. 49:1008(A); LSA-R.S. 49:1005(A); LSA-R.S. 49:1001(2), (13) & (20).

The statute specifies that if the initial test is positive, a second test, called a confirmatory test shall be performed by a NIDA- or CAP-FUDT-certified laboratory. LSA-R.S. 49:1008(D); LSA-R.S. 49:1001(6). The confirmatory test uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy. LSA-R.S. 49:1001(6).

The drug-testing statute further provides that all confirmed positive drug test results shall be reported directly from the laboratory to a qualified “medical review officer” for review. LSA-R.S. 49:1007(A) & (B). A “medical review officer” (“MRO”) is statutorily defined as a “licensed physician responsible for receiving laboratory results generated by [an employer’s] drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his medical 17history and any other relevant biomedical information.” LSA-R.S. 49:1001(10).

In reviewing the confirmed positive result, the employer’s designated MRO shall contact the individual who submitted the specimen as outlined in the NIDA guidelines, before making a final decision to verify a positive result or report that result to the employer. LSA-R.S. 49:1007(B) & (C). With regard to the purpose of the requirement of review by an MRO, the NIDA guidelines provide as follows:

An essential part of the drug testing program is the final review of results. A positive test result does not automatically identify an employee/applicant as an illegal drug user. An individual with a detailed knowledge of possible alternate medical explanations is essential to the review of results. This review shall be performed by the MRO prior to the transmission of results to agency officials [or, in this ease, the employer].
The role of the MRO is to review and interpret positive test results obtained through the agency’s testing program. In carrying out this responsibility, the MRO shall examine alternate medical explanations for any positive test result. This action could include conducting an medical interview with the donor, review of the donor’s medical history, or review of any other relevant biomedical factors. The MRO shall review all medical records made available by the donor when a confirmed positive test could have resulted from legally prescribed medication.

59 Fed.Reg. 29908 § 2.6(a) & (b) (1994) (emphasis added).

Additionally, with regard to the requirement that the MRO contact the individual who submitted the specimen, the NIDA guidelines provide that prior to making a final decision to verify a positive test result, the MRO shall give the donor an opportunity to discuss the test result with him. 59 Fed.Reg. 29908 § 2.6(c) (1994). Under the statutory framework of the drug-testing statute and the NIDA guidelines, only after reviewing and verifying a positive test result shall the MRO report the result to the employer. LSA-R.S. 49:1007(B); 59 Fed.Reg. 29908 § 2.6(c).

| «SUMMARY JUDGMENT

(Assignments of Error Nos. 1 & 2)

In its first and second assignments of error, Georgia Gulf contends that the trial court erred in granting Sanchez’s motion for summary judgment, and finding that the positive drug test result was invalid as a matter of law, contending (1) there was conflicting evidence regarding whether the results had been reviewed by an MRO, and (2) LSA-R.S. 49:1007 does not require the invalidation of positive drug test results if the results were not reviewed by an MRO.

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Pursuant to LSA-C.C.P. art. 966(C)(2), if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Keller v. Case, 99-0424, p. 8 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La.9/29/00), 770 So.2d 354. Moreover, as consistently noted in LSA-C.C.P. art. 967, the opposing party cannot rest on the mere allegations or denials of his pleadings, but must present evidence which will establish that material facts are still at issue. Hunter v. Tensas Nursing Home, 32,217, p. 3 (La.App. 2nd Cir.10/27/99), 743 So.2d 839, 841, writ denied, 99-3334 (La.2/4/00), 754 So.2d 228.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Keller, 99-0424 at p. 4, 757 So.2d at 922.

Georgia Gulf first contends that there are factual disputes as to whether Sanchez’s positive test result was subjected to review by a medical review officer. However, we note that at the hearing on the motions for summary judgment and the motion for res judicata, counsel for Georgia Gulf stipulated that no such review had occurred. When arguing the motion for summary judgment on behalf of Georgia Gulf, counsel stated, “The only stipulation was that we did not have an MRO, a doctor come in and review the test.” Additionally, at a later point in the hearing, when plaintiffs counsel was presenting argument in support of Sanchez’s motions, counsel for Georgia Gulf again stated as follows: “Your Honor, we stipulated for purposes of that hearing [regarding unemployment benefits]. We stipulated that there was no MRO involved. And we won’t — ... I stipulated, Your Honor, for the purposes of this summary judgment. And in truth and in fact I don’t think I will contest that at trial.”

Parties are bound by their stipulations regarding factual matters. Bujol v. Entergy Services, Inc., 2000-1621, p. 8 (La.App. 1st Cir.8/14/03), 833 So.2d 947, 957. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court when it is not in derogation |inof law. Crawford v. Blue Cross Blue Shield of Louisiana, 99-2503, p. 7 (La.App. 1st Cir.11/3/00), 770 So.2d 507, 512, writ denied, 2000-3267 (La.2/16/01), 786 So.2d 98. Considering the foregoing stipulations by counsel for Georgia Pacific at the hearing on these motions, we find no merit to the argument that genuine issues of fact remain as to whether Sanchez’s positive test result was subjected to MRO review as contemplated by the drug-testing statute.

Additionally, we find no merit to Georgia Gulfs contention that the drug-testing statute does not provide that positive drug test results will be considered invalid if the results are not reviewed by an MRO. While conceding that LSA-R.S. 49:1007 provides that a positive test result “shall” be reviewed by an MRO, Georgia Gulf argues that this statute is not mandatory, but, rather, is merely directory.

Louisiana Revised Statute 49:1007(B) provides, in pertinent part, that “[t]he medical review officer shall review all confirmed positive drug testing results of employees and report such results to the employer in compliance with the NIDA guidelines.” (Emphasis added). With regard to interpretation of this language, LSA-R.S. 1:3 provides as follows:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.

The word “shall” in a statute or ordinance generally denotes a mandatory duty. Orleans Levee District v. Glenn, 577 So.2d 336, 337-338 (La.App. 1st Cir.1991). However, the jurisprudence has held that a statute, though phrased in the imperative, may not necessarily be mandatory. Sanders v. Department of Health & Human Resources, 388 So.2d 768, 770-771 (La.1980); Department of Corrections v. Pickens, 468 So.2d 1310, 1314 (La.App. 1st Cir.1985).

Statutes may be classified as either mandatory or directory. The Louisiana Supreme Court has held that, if mandatory, they prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done, whereas, if directory, their terms are limited to what is required to be done. Generally, statutory provisions that do not relate to the essence of the thing to be done, and as to which compliance is a matter of convenience rather than substance, are directory, while provisions which relate to the essence of the thing to be done, that is, matters of substance, are mandatory. Sanders, 388 So.2d at 770; Jack A. Parker & Associ ates, Inc. v. State, Through the Department of Civil Service, 454 So.2d 162, 166 (La.App. 1st Cir.), writ denied, 459 So.2d 538 (La.1984).

The interpretation of a statute as directory or mandatory depends upon legislative intent. Although a statute may not prescribe the result that will follow from non-compliance, if the requirement of the statute is so essential to the statutory plan that the legislative intent would be frustrated by non-compliance, then it is mandatory. See Jack A. Parker & Associates, Inc., 454 So.2d at 166. A significant consideration in determining whether a statutory requirement should be given mandatory or directory effect is a comparison of the results to which each such construction would lead. Jack A. Parker & Associates, Inc., 454 So.2d at 166.

The drug-testing statute represents a comprehensive procedure that employers must follow in conducting drug testing of its employees that is ^designed to assure accurate and unadulterated tests and results. See Price, 96-2408 at pp. 3-4, 693 So.2d at 1171. As detailed above, the strict specimen collection procedures, chain of custody requirements, testing methods and review process are designed to achieve this goal of accuracy. As noted by the United States District Court for the Northern District of New York, a generally-held belief in the accuracy of drug tests may lead employers to place undue confidence in their results. Santiago v. Greyhound Lines, Inc., 956 F.Supp. 144, 151 (N.D.N.Y.1997). As the court further emphasized, the harm to employees falsely accused is significant, even devastating, noting as follows:

An employee can be shut out of the job market as a result of a tainted or negligent test result or report. The stigma as a drug user can cast doubt on the future prospects of employment, even if the test is later discovered to be a false positive. In a company that is downsizing, a mark or suspicion of any kind may result in an employee’s termination and long-term unemployment.

Santiago, 956 F.Supp. at 151 (quoting David W. Lockard, Protecting Medical Laboratories from Tort Liability for Drug Testing, 17 J. Legal Med. 427, 428 (1996)).

Although LSA-R.S. 49:1007 does not prescribe the specific result that will follow from non-compliance, we conclude that failure to comply with the provisions of this statute would defeat the purpose of the drug-testing statute. As the legislature correctly recognized, the requirement that a positive result be reviewed by an MRO and verified as positive after consultation with the employee regarding relevant prescription medication or health conditions is essential for the protection of employers, who want to ensure a drug-free work environment, and employees, who voluntarily submit to these drug screens. Absent a requirement that such results be reviewed by a qualified MRO, an employee who falsely tests positive is ^ ¡¡deprived of the ability to explain those results. As the legislature apparently recognized, the detrimental effect to the employee’s career could be devastating. Indeed, in the instant case, Sanchez avers that he was a twenty-six year employee of Georgia Gulf who has never used illegal drugs, but was fired without being given the opportunity to discuss medication he was taking and any effect it may have had on the test results. This factual situation, if established at trial, is precisely the type of devastating result that may occur where an employee is deprived of the opportunity to explain the results.

Accordingly, we conclude that because failure to comply with the provisions of LSA-R.S. 49:1007 would defeat the purpose of the drug-testing statute as a whole; thus, these requirements are mandatory. See Jack A Parker & Associates, Inc., 454 So.2d at 166-167. Georgia Gulfs argument to the contrary is without merit.

Because we conclude that the requirement of MRO review pursuant to LSA-R.S. 49:1007 is mandated by the statute, and there is no factual dispute that MRO review as contemplated therein did not occur in this case, we find no error in the trial court’s granting of Sanchez’s motion for summary judgment, finding that “the ‘positive’ cocaine test result attributed to [Sanchez] was invalid as a matter of law.”

RES JUDICATA

(Assignment of Error No. 3)

Georgia Gulf also challenges the trial court’s ruling that the doctrine of res judi-cata applied to its stipulation in an administrative hearing that the drug-testing procedures were not properly followed by Georgia Gulf and its resultant finding that “[t]he procedures for drug testing Danny Sanchez’s 114random employment urine specimen were not properly followed by the employer Georgia Gulf Corporation.”

Louisiana Revised Statute 13:4231 states that a valid and final judgment is conclusive between the same parties. Under the principle of issue preclusion set forth in LSA-R.S. 13:4231(3), “[a] judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.” Once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Segal v. Smith, Jones & Fawler, L.L.P., 2002-1448, p. 5 (La.App. 4th Cir.1/29/03), 838 So.2d 62, 65. Thus, the three requirements for issue preclusion are: (1) a valid and final judgment; (2) identity of the parties; and (3) an issue that has been actually litigated and determined if its determination was essential to the prior judgment. Horrell v. Horrell, 99-1093, p. 4 (La.App. 1st Cir.10/6/00), 808 So.2d 363, 373 (on rehearing), writ denied, 2001-2546 (La.12/7/01), 803 So.2d 971.

In support of his “Motion for Res Judi-cata,” Sanchez introduced the August 18, 2000 decision of an administrative law judge of the Appeals Tribunal for the Office of Regulatory Services, which decision was rendered in connection with Sanchez’s claim for unemployment benefits. In the decision, the administrative law judge stated that “[p]rior to the beginning [o]f the hearing, both attorney’s [sic] stipulated on tape that the procedures of the drug testing was [sic] not properly followed by the employer. The claimant was not given an opportunity to list any prescription drugs that were in his system that could possibly give a false reading.” The administrative law judge further determined that “the medical reviewing h ¡^officer never contacted the claimant to discuss any prescription drugs that could have been used by the claimant prior to taking the drug screening test.”

On appeal, Georgia Gulf contends that the third requirement for issue preclusion was not met, i.e., it contends that the issue litigated in the hearing for unemployment benefits differs from the issue arising in the present litigation. According to Georgia Gulf, it should not be bound by its prior stipulations because the issue presented at the administrative hearing was whether the procedures set forth in LSA-R.S. 23:1601 were followed, whereas the issue in the instant case involves compliance with the provisions of LSA-R.S. 49:1007. It argues that LSA-R.S. 23:1601(10)(c)(iii)(bb) requires that the employee be given an opportunity to provide medical information relevant to the drug test, but that no such requirement is found in LSA-R.S. 49:1007.

Louisiana Revised Statute 23:1601 details when an individual will be disqualified from receiving unemployment compensation benefits. Subsection 10(a) of LSA-R.S. 23:1601 provides that the employee shall be disqualified from receiving benefits if it is determined that he was discharged for the use of illegal drugs. In meeting its burden of proving the employee’s use of illegal drugs, the employer may rely upon results of employer-administered tests only if they are the result of testing done pursuant to a written and promulgated substance abuse rule or policy established by the employer. LSA-R.S. 23:1601(10)(a).

In conducting the drug testing, the employer is required to provide “[a]n opportunity for the employee to provide notification of any information which he considers relevant to the test, including identification |1fiof currently or recently used prescription or nonprescription drugs, or other relevant medical information.” LSA-R.S. 23:1601(10)(c)(iii)(bb).

In the unemployment hearing, the administrative law judge determined, pursuant to stipulation by Georgia Gulf, that Sanchez had not been given an opportunity to list any prescription drugs that were in his system that could possibly give a false reading. This finding was essential to its determination that Georgia Gulf had not followed the provisions of LSA-R.S. 23:1601 and thus had failed to prove that Sanchez was disqualified from unemployment benefits pursuant to that statute for use of illegal drugs.

Turning to the statute at issue herein, LSA-R.S. 49:1007(B) requires that the employer’s designated MRO shall review all confirmed positive drug test results and report those results to the employer “in compliance with the NIDA guidelines or pursuant to statutory or regulatory authority granted under R.S. 23:1081 et seq. and R.S. 23:1601 et seq.” As set forth above, the NIDA guidelines provide that in reviewing and interpreting positive results, the MRO “shall examine alternate medical explanations for any positive test result.” 59 Fed.Reg. 29908 § 2.6(b) (1994). Moreover, the NIDA guidelines further provide that the MRO shall give the donor an opportunity to discuss the result with him. 59 Fed.Reg. 29908 § 2.6(c) (1994).

The issue of whether Sanchez was given the opportunity to discuss the results of his drug test and identify any medication or other medical information that may have been relevant to the accuracy of those results was essential to the administrative law judge’s determination as to Sanchez’s | ^entitlement to unemployment benefits and is likewise an essential issue in the present litigation. However, we need not resolve the issue on this basis.

Pretermitting whether, as Georgia Gulf suggests, the ALJ’s findings are entitled to res judicata effect in the instant matter, we find Georgia Gulf is bound by its stipulation in these proceedings that no MRO review occurred and by the attendant legal effects resulting from its stipulation herein.

For these reasons, we find no error in the trial court’s judgment, granting Sanchez’s motion, or in its conclusion that because MRO review did not occur herein, as required by law, Sanchez was improperly deprived of the opportunity to discuss the results and list any medication or medical condition that may have affected those results. Accordingly, we find no error in the court’s conclusion that “[t]he procedures for drug testing Danny Sanchez’s random employment urine specimen were not properly followed by the employer Georgia Gulf Corporation.”

In sum, we reject Georgia Gulfs argument that its factual stipulation should only apply to its motion for summary judgment. We reject the notion that a party is entitled to limit the legal effect to be given to a stipulation, as urged by Georgia Gulf.

This assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the portions of the May 16, 2002 judgment of the trial court granting Sanchez’s motions for partial summary judgment and res judicata are affirmed. Costs of this appeal are assessed against Georgia Gulf Corporation.

AFFIRMED.

      . Although not entirely clear from the record, Sanchez alleges that at the time of the testing, he had been employed by defendant for approximately 26 years, and Georgia Gulf does not dispute this.

      . Sanchez also named as defendants Kroll Laboratory Specialists, Inc., the company that performed the actual testing and reported the results to Georgia Gulf, and Consolidated Drug Compliance & Management, Inc., the company that administered the test and collected the sample. However, Sanchez later dismissed his claims against these defendants. In addition to asserting a claim against Georgia Gulf for wrongful termination, Sanchez also asserted a claim for defamation. However, there are no issues relating to that claim before us in this appeal.

      . In its motion for summary judgment, Georgia Gulf also sought dismissal of Sanchez’s defamation claim, contending that Sanchez could not prove all of the elements of that claim. The trial court granted Georgia Gulfs motion as to the defamation claim and dismissed that claim with prejudice.

      . In its judgment, the trial court designated both these rulings as final pursuant to LSA-C.C.P. art. 1915(B)(1). With regard to the trial court's ruling denying Georgia Gulfs motion for summary judgment, the correctness of that ruling is also currently pending before this court pursuant to a remand from the Louisiana Supreme Court on Georgia Gulfs writ of supervisory review. While this court had initially denied Georgia Gulfs writ application, the Supreme Court thereafter granted Georgia Gulfs writ application and remanded the matter to this court for a determination of the relationship between the drug-testing statute and the at-will employment doctrine. Sanchez v. Georgia Gulf Corporation, 2002-2198 (La. 11/27/02), 836 So.2d 9.

      . See 53 Fed.Reg. 11970 (1988). The NIDA Guidelines were later amended in 1994 and 1998. See 59 Fed.Reg. 29908 (1994) and 62 Fed.Reg. 51118 (1998).

      . Notably, this requirement does not apply to pre-employment drug screening. LSA-R.S. 49:1008(D).

      . Even in the absence of the above stipulations, we note that it is undisputed in the evidence presented that Sanchez was never contacted by an MRO nor was he given the opportunity to disclose any medications he may have been taking that could have resulted in a false positive test result.

      . Also, LSA-R.S. 23:1601 (10)(c)(iii)(bb), as previously discussed, and LSA-R.S. 23:1081(9)(c)(ii) require that the employee be given an opportunity to provide notification of any information which he considers relevant io the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information.


source: Caselaw Access Project

author: It GASKINS, J.

license: Public Domain

text:
    Terry P. BURNS, Plaintiff-Appellant, v. APACHE CORPORATION and United States Fire Insurance Co., Defendants-Appellees.
    No. 37,396-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 18, 2003.
    Booth, Lockard, Politz, LeSage, Hayter & Odom, L.L.C. by Mark W. Odom, Shreveport, for Appellant.

      Mayer, Smith & Roberts by Kelly J. Workman, Steven E. Soileau, Shreveport, for Appellees.
    Before GASKINS, PEATROSS and MOORE, JJ.
   It GASKINS, J.

Terry Burns appeals from a judgment of the Office of Workers’ Compensation (OWC) deciding that certain expert witness fees were not included in the offset of the employer’s credit against compensation arising from the settlement of a tort action in federal court. We reverse and remand.

FACTS

On June 21, 2000, Barry Burns was working for Apache Corporation (Apache) on an oil well pump in Shongaloo, Louisiana, when he was struck and killed by a moving part of the pump. His widow, Terry Burns, made a claim for compensation against Apache and its compensation insurer, United States Fire Insurance Company (USFIC). Ms. Burns also filed a tort action in Louisiana state court against Dodson Tye Machine Works, Inc. (Dodson), a contractor who had worked on the well.

Apache and USFIC commenced paying Ms. Burns $384 per week in workers’ compensation death benefits. In the meantime, USFIC intervened and removed the tort lawsuit to federal court on diversity grounds. This lawsuit proceeded to trial and the jury awarded Ms. Burns $906,489.00 in damages. However, the jury allocated only five percent of the fault to Dodson and Ms. Burns’ recovery was therefore $45,324.45, plus legal interest. Out of this recovery, the federal judgment awarded USFIC five percent of the $33,792 in compensation benefits it had paid. USFIC was also awarded $250 from the defendants for funeral expenses previously paid. Ms. Burns incurred $14,360.44 in attorney fees in prosecuting the lawsuit.

LThe federal judgment further allowed Ms. Burns and USFIC to recover their costs “as provided by law.” Ms. Burns thereafter filed an application to tax costs in federal court. Since expert fees are generally not allowed as costs in federal court, Ms. Burns did not request reimbursement for the $35,043.07 she spent in expert witness fees. Ms. Burns requested reimbursement for $7,700.48, the remainder of her costs. She settled this claim against Dodson for $2,000.00 out of concern that the five percent liability assessed to Dodson would apply to any cost award as well.

After the federal case was concluded, a dispute arose between Ms. Burns and Apaehe/USFIC concerning the credit owed the employer under La. R.S. 23:1103(A)(1). The employer ultimately suspended Ms. Burns’ benefits on the grounds that her recovery in the tort action exceeded the amount of recoverable costs she incurred, and Ms. Burns filed a dispute in the OWC. Ms. Burns argued that the expert witness fees she incurred in the tort suit caused her total costs (a total of $42,743.55 not including attorney fees of $14,360.44) to exceed the amount of her recovery and, thus, the employer’s credit should be reduced to zero. The employer argued that expert witness fees were not recoverable as costs in federal court and, therefore, Ms. Burns was entitled to an offset only for recoverable costs.

The OWC agreed with the employer. The OWC concluded that the employer was entitled to a credit against compensation for the amount of the plaintiffs recovery in the tort lawsuit but that this credit would be reduced by Ms. Burns’ attorney fees ($14,360.44) and costs ($5,700.48) subject to a |3six percent annual reduction leaving a credit of $26,138.77 to the employer and insurer. Because the employer was entitled to this credit, the OWC decided that Terry Burns was not entitled to reinstatement of benefits until the credit was exhausted. Ms. Burns now appeals.

DISCUSSION

Resolution of this case turns on the interpretation of La. R.S. 23:1103. That statute provides, in pertinent part:

A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer’s credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit. [Emphasis added.]

Simply put, the issue is whether the term “court costs” encompasses expert witness fees when those fees are not taxable as costs in the forum of the tort action.

La. C.C. art. 9 provides:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

|4La. C.C. art. 10 states:

When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. In part, La. C.C. art. 11 provides:
The words of a law must be given their generally prevailing meaning.

La. C.C. art. 12 provides:

Wfiien the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.

La. R.S. 1:4 provides:

When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

Workers’ compensation proceedings are to be interpreted liberally in favor of the workmen. Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64.

In federal court, courts may not assess the losing party with expert witness •fees beyond a minimal per diem unless the expert witness was appointed by the court. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 (1987); see also Tyler v. Union Oil Co. of California, 304 F.3d 379 (5th Cir.2002), discussing the amended version of F.R.C.P. 54(d)(1). Under the general rules for procedure in workers’ compensation hearings in Louisiana, costs may be assessed by the OWC as in other civil proceedings. La. R.S. 23:1317(B). Louisiana law expressly provides that expert witness fees may be taxed as costs to the party cast in judgment in an amount to be determined by the trial | ¡judge. La. C.C.P. art.1920 and La. R.S. 13:3666; see also Allen v. Roadway Express, Inc., 31,628 (La.App.2d Cir.2/24/99), 728 So.2d 1015.

In support of their argument that no credit should be given for the expert witness fees not assessed as costs, the appel-lees rely upon the case of Degruise v. Houma Courier Newspaper Corporation, 2000-0229 (La.App. 1st Cir.3/28/02), 815 So.2d 1074, writs denied, 2002-1202 (La.6/21/02), 819 So.2d 342, 2002-1179 (La.6/21/02), 819 So.2d 345. There, applying La. R.S. 23:1103(A), the court of appeal disallowed an offset for “litigation costs” against the employer’s credit. However, in so ruling, the court, which was concerned by the possibility of a double recovery by the claimant, observed that the claimant had paid no court costs. (Also, we note that the particulars of the court costs awarded by the trial court in De-gruise are unclear.) The appellate court interpreted section (A)(1) in light of section (C). This provision was added in response to Moody v. Arabie, 498 So.2d 1081 (La.1986) to more precisely allocate between the claimant and the employer the cost of recovery from a tortfeasor and is directed at compensation benefits already paid to the claimant. La. R.S. 23:1103(0 currently provides in pertinent part:

C. (1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefit-ted or augmented the recovery from the third party. The employee as interve-nor shall not be responsible for the employer’s attorney fees attributable to postjudgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given |fito the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor’s costs shall be based on in-tervenor’s recovery of prejudgment payments or prejudgment damages. [Emphasis added.]

Although this paragraph expressly includes expert witness fees as recoverable costs, the legislature did not expressly include these fees in section (A)(1).

We .conclude that the offset for future compensation benefits contemplated by section (A)(1) must necessarily be reduced by the plaintiffs expert witness fees as “court costs.” First, we do not find the federal jurisprudence determining what costs are recoverable in federal courts persuasive on this issue of Louisiana workers’ compensation law. The statute in question is not a counterpart of F.R.C.P. Rule 54(d)(1); rather, the statute is one calculating the appropriate payment of compensation benefits. This is purely a state law question and Louisiana’s interest in its scheme of workers’ compensation law is paramount. Second, recovery of expert witness fees, subject to the discretion of the trial judge, is the general practice in Louisiana courts. We believe that the legislature must have contemplated this practice in enacting La. R.S. 23:1103. Third, we believe that the policy underlying this statute in general is simply to prohibit a claimant from making a double recovery and that denying the claimant the right to offset expert witness fees does nothing to promote that policy. Further, we do not believe that La. R.S. 23:1103 should result in disparate application based on whether the case is tried in state or federal court. Ms. |7Burns actually incurred the fees in the pursuit of her tort claim that the employer is now seeking to use as an offset. Finally, we also believe it inconsistent with the general policy of liberality toward the compensation claimant to exclude expert witness fees from the reduction in the employer’s credit. To disallow the offset for expert witness fees would be to punish the claimant by allowing the employer to disproportionately benefit from the employee’s successful (if only nominally so in this case) pursuit of tort remedies.

CONCLUSION

We therefore reverse the judgment of the OWC and remand this matter'for a determination under Allen v. Roadway Express, Inc., supra, of the appropriate amount of expert witness fees to be offset against the employer’s credit. Costs of this appeal are assessed to Apache Corporation and United States Fire Insurance Company.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, MOORE, and TRAYLOR, JJ.

Rehearing denied.

      . The jury allocated 70% of the fault to Apache and 25% to Mr. Burns.

      . Ms. Burns’ total costs were $7,700.48 but she recovered $2,000.00 of this from Dodson.

      . This sentence pertaining to expert fees was added in 1997 and was not applicable to the facts in the Degruise case. Acts 1997, No. 1354, § 1, effective July 15, 1997.


author: JjBROWN, C.J.

text:
    Francis HINSON, et al., Plaintiffs-Appellees, v. THE GLEN OAK RETIREMENT SYSTEM, d/b/a The Glen Oak Retirement Home, Defendants-Appellants.
    No. 37,550-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 18, 2003.

      Wiener, Weiss & Madison, by John M. Madison, Jr., Shreveport, for Appellant.
    Georgia Kosmitis, Shreveport, for Ap-pellee.
    Before BROWN, CARAWAY, and TRAYLOR (Pro Tempore), JJ.
   JjBROWN, C.J.

On December 11, 1996, Francis Hinson and Beverly Martin, individually and on behalf of their elderly mother, Lucille Reagan, filed suit against defendant, the Glen Oak Retirement System, d/b/a the Glen Oak Retirement Home (“the Glen”), a nursing home, alleging personal injury, breach of contract and violations of La. R.S. 40:2010.8, the Nursing Home Residents’ Bill of Rights (“NHRBR”). Plaintiffs alleged, inter alia, that the nursing staff failed to accurately document and monitor Mrs. Reagan’s bowel habits and constipation and that this failure resulted in a delayed diagnosis of her colon cancer.

Trial on the merits was held from February 28 to March 5, 2002. On August 29, 2002, the trial court rejected plaintiffs’ breach of contract and personal injury claims but, based upon violations of the NHRBR, awarded wrongful death and survival damages as follows: (1) $20,000 to Mrs. Hinson and $20,000 to Mrs. Martin for decreased/loss of chance of survival related to the delay in diagnosis of Mrs. Reagan’s colon cancer; (2) $25,000 to plaintiffs for Mrs. Reagan’s pre-death suffering; and (3) $25,000 in attorney fees, together with costs pursuant to La. R.S. 40:2010.9. Defendant appealed, raising procedural, evidentiary and substantive issues. Finding | Pthat plaintiffs failed to introduce evidence to carry their burden of proof, however, we reverse.

Brief Factual Background

Mrs. Reagan was admitted to the Glen on June 1, 1992. At that time, she was 79 years old and her admitting diagnosis was Alzheimer’s disease, depression, cerebral atherosclerosis, senile dementia with delirium and chronic mental syndrome.

On July 3, 1996, Mrs. Reagan was admitted to Schumpert Medical Center with complaints of abdominal pain. A colonos-copy was performed which revealed Stage II cancer, including a “large, hard cancer that was nearly obstructing the cecal area.” She was anemic from blood loss and required a blood transfusion. On July 6, 1996, Mrs. Reagan underwent colon resection surgery. After going between the Glen and Schumpert for approximately a month and a half, Mrs. Reagan moved in with her daughter, Francis Hinson, where she lived until her death on October 6, 1997.

Discussion

The NHRBR requires that all nursing homes adopt and make public a statement of the rights and responsibilities of its residents and treat such residents in accordance with an enumerated list of 22 rights. La. R.S. 40:2010.8. In this case, although concluding that plaintiffs failed to ^establish their contract and personal injury claims, the trial court found that defendant violated paragraph (A)(6), which is the right to be adequately informed of her medical condition and proposed treatment, and participate in the planning of such treatment, including the right to refuse treatment, unless otherwise indicated by the resident’s physician, and paragraph (A)(7), which is the right to receive adequate and appropriate health care and protective and support services, including services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules promulgated by the Department of Health and Hospitals. Based upon these violations, the trial court awarded wrongful death and survival damages to plaintiffs, after making the following factual findings:

(1) The Glen failed to properly chart Mrs. Reagan, particularly her bowel habits and constipation, beginning in June 1995.
(2) This failure resulted in a further failure to effectively monitor Mrs. Reagan’s records and properly coordinate her care plan.
(3) There was a lack of effective communication with Mrs. Reagan’s doctor, Dr. Alan Borne.
(4) The failure to properly chart Mrs. Reagan resulted in a substantial delay in diagnosis of her colon cancer.
(5) Mrs. Reagan lost a less than equal chance of survival by virtue of the delayed diagnosis of her condition.

As noted by the supreme court in Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.01/14/03), 835 So.2d 460, the legislature’s enactment of the NHRBR was not intended to remove malpractice claims against qualified health care providers from the coverage of the Louisiana Medical Malpractice Act (MMA), but was instead intended to provide 14nursing home residents with important rights to preserve their dignity and personal integrity and to provide a means by which they could enforce these rights.

Although there are many claims that a person can assert under the NHRBR that would not fall within the definition of medical malpractice and would not be subject to a medical review panel, the supreme court emphasized that any claim of medical malpractice against a qualified health care provider is encompassed within the ambit of the MMA and must be reviewed prior to suit. Richard, supra at 467.

In the instant case, plaintiffs’ petition clearly set forth claims of medical malpractice and in fact, the violations found by the trial court cannot be categorized as anything other than acts of malpractice.

In Coleman v. Deno, 01-1517 (La.01/25/02), 813 So.2d 303, 315-316, the supreme court set forth a six-part test to determine whether a negligent act by a health care provider is covered under the MMA: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

|RThe record does not reflect whether the Glen is a qualified health care provider, and we observe that plaintiffs did not first present their claims against the Glen to a medical review panel nor did defendant object via an exception of prematurity to the civil action. Therefore, as set forth by the court in Barraza v. Scheppegrell, 525 So.2d 1187 (La.App. 5th Cir.1988), the right to review of plaintiffs’ claims against the Glen by a medical review panel has been waived. See also Remet v. Martin, 97-0895 (La.App. 4th Cir.12/10/97), 705 So.2d 1132, appeal after remand, 98-2751 (La.App. 4th Cir.03/31/99), 737 So.2d 124. Regardless of the forum, however, the analysis set forth in Coleman, supra, applies.

As noted above, the trial court found that the Glen failed to properly chart, monitor and address Mrs. Reagan’s condition, and coordinate her care plan. The court further concluded that these omissions led to ineffective communication with Dr. Borne and resulted in the delayed diagnosis of Mrs. Reagan’s colon cancer.

In a malpractice claim against a hospital, or, as in this case, a nursing home, plaintiffs are required to prove by a preponderance of the evidence, as in any negligence action, that: (1) defendant owed plaintiffs a duty to protect against the risk involved (or the applicable standard of care); (2) defendant breached its duty (or the applicable standard of care); and (3) the injury was caused by the breach. La. R.S. 9:2794(A); Bellard v. Willis Knighton Medical Center, 34,360 (La.App.2d Cir.05/09/01), 786 So.2d 218, writ denied, 01-1686 (La.09/21/01), 797 So.2d 676; Gordon v. Willis Knighton Medical Center, 27,044 (La.App.2d Cir.06/21/95), 661 So.2d 991, writs denied, 95-2776, 95-2783 (La.01/26/96), 666 So.2d 679.

It is the duty of a nursing home to provide a reasonable standard of care, taking into account the resident’s mental and physical condition. McCartney v. Colum bia Heights Nursing Home, Inc., 25,710 (La.App.2d Cir.03/30/94), 634 So.2d 927; Kildron v. Shady Oaks Nursing Home, 549 So.2d 395 (La.App. 2d Cir.1989); McGillivray v. Rapides Iberia Management Enterprises, 493 So.2d 819 (La.App. 2d Cir.1986). This standard of care must take into consideration the fact that nursing home residents have a need to live within the least restrictive environment possible in order to retain their individuality and some personal freedom and preserve their dignity and personal integrity. La. R.S. 40:2010.6; Richard, supra.

A hospital (or nursing home) is responsible for the negligence of its nurses (and other medical personnel) under the respondeat superior doctrine. The Estate of Wilburn v. Leggio, 36,534 (La.App.2d Cir.03/19/03), 842 So.2d 1175, writ denied, 03-1096 (La.06/06/03), 845 So.2d 1095; Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991); In re Triss, 01-1921 (La.App. 4th Cir.06/05/02), 820 So.2d 1204. The liability imputed to the medical facility is to be viewed in light of the employee’ actions. In re Triss, supra; Odom v. State, Department of Health & Hospitals, 98-1590 (La.App. 3d Cir.03/24/99), 733 So.2d 91.

|7Nurses and other health care providers are subject to the same standard as physicians. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989); Gibson, supra; In re Triss, supra. It is a nurse’s duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. King v. State, through Department of Health and Hospitals, 31,651 (La.App.2d Cir.02/24/99), 728 So.2d 1027, writ denied, 99-0895 (La.05/07/99), 741 So.2d 656; Gibson, supra; In re Triss, supra

Therefore, under La. R.S. 9:2794, plaintiffs must establish the standard of care applicable to the nursing staff at the Glen, a violation of that standard of care and a causal connection between the nurses’ alleged negligence and plaintiffs’ injuries resulting therefrom. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228; In re Triss, supra. Hindsight or subsequent events cannot be considered when determining whether the actions of the nursing staff were reasonable and met the standard of care. Instead, the professional judgment and conduct of the nurses are evaluated in terms of reasonableness under the then existing circumstances, not in terms of result or in light of subsequent events. In re Abdo, 02-2513, 02-2514 (La.App. 4th Cir.07/09/03), 852 So.2d 513, 2003 WL 21752791, citing Beckham v. St. Paul Fire and Marine Insurance Co., 614 So.2d 760 (La.App. 2d Cir.1993).

IsApplicable Standard of Care

General Standards for Nursing Homes and Nurses

Linda McWaters, who served as the Director of Nursing at the Glen until 1997-98, at which time she became the Long-Term Care Administrator for the Glen System, testified that she is familiar with the federal and state requirements for long-term care facilities. Furthermore, as a registered nurse, she is knowledgeable about the Louisiana State Board of Nursing legal standards for nursing practice, which are authoritative as standards for nursing in Louisiana regardless of the setting. These standards include data collection and compilation; establishment of nursing goals; formulation of a nursing care plan; evaluation of the care plan; reassessment and modification of the care plan as needed. The standard of care further requires that nurses communicate this information to health care providers, particularly physicians.

Federal regulations require that a registered nurse perform a complete assessment of the patient or resident, as well as formulate a care plan which is to be evaluated and updated quarterly. A team from the various departments, including nursing, pharmacy, dietary, activities, etc., is involved, but the coordinator of the plan must be an R.N.

According to Ms. McWaters, a resident’s care plan is inclusive of her entire record, such as the physician’s orders, nurses’ notes, monthly summaries, etc. There is no requirement which requires monthly charting or summaries; these were done by the Glen’s nursing staff in addition to the charting in the nurses’ notes. Ms. McWaters reiterated that there are no | specific recordkeeping requirements other than that the records must be complete, accurate and systematically organized.

Ms. McWaters testified that, in order to get a true picture of a resident’s condition at any given moment, one can’t simply look at the care plan and monthly nursing summaries. Instead, reference to the resident’s entire chart is proper. In addition to the above documents, the chart includes the nurses’ notes and forms and summaries from other disciplines, such as pharmacy, dietary and social services.

Regarding medical diagnosis and treatment, the nursing home staff relies upon the resident’s treating physician. In this case, Mrs. Reagan’s treating internist was Dr. Alan Borne. As her doctor, Dr. Borne was responsible for staying up-to-speed on Mrs. Reagan’s condition and issuing orders to the nursing staff for implementation.

In the nursing home setting, all lab work and testing require a physician’s orders. Typically, physicians order annual lab work. Ms. McWaters pointed out that the decision to order annual lab or tests rests entirely within the discretion of the resident’s treating physician. The federal regulations require the nursing home to provide lab services on a timely basis and to promptly provide the physician who orders lab work with the results.

Regarding the nursing flow sheets used by the Glen, Ms. McWaters stated that the certified nursing assistants (“C.N.A.”) are responsible for documenting activities of daily living, such as bowel movements. |in Documentation of a bowel movement on the chart, however, requires actual observation by the C.N.A.

Duane King, an R.N. who works weekends at the Glen, reiterated that the standard of care applicable to nurses does not encompass diagnosis; that is strictly within the province of the treating physician. As a nurse in a long-term care setting such as the Glen, his duties include assessing the residents and making these assessments available to the doctors via the residents’ charts. It is then the doctor’s duty to make decisions regarding diagnosis and appropriate treatment, including the ordering of tests and lab work.

Shelley Hebert, an R.N. who testified as plaintiffs’ expert witness, noted that nurses in a rehabilitation or long-term care facility are responsible for setting goals and implementing care plans which are for the lifetime of their patients or residents. Ms. Hebert’s credentials include national certification in rehabilitation nursing as well as certification by the Louisiana Department of Health and Hospitals in training nursing assistants who work in nursing homes.

Ms. Hebert testified that nursing standards apply to all nurses, including those who work in nursing homes. A nursing care plan is the method by which an R.N. directs a particular patient’s care. The R.N. is the coordinator of this plan, which is a written documentation of nursing diagnoses, interventions and goals. State regulations require use of a nursing care plan in all settings, including nursing homes. Specifically, a care plan must be completed for residents or patients within two weeks of lutheir admission to a long-term care facility such as the Glen. According to Ms. Hebert, a plan should be updated whenever there is a change in a resident’s condition.

As did Ms. McWaters, Ms. Hebert enunciated the applicable standard for nurses, which includes: data collection and the establishment of goals; setting of priorities and determination of nursing actions to achieve the goals set; provision for nursing interventions; implementation of the plan and documentation by written records; and reevaluation. Ms. Hebert noted that this process is continuous.

On cross-examination, Ms. Hebert agreed with the other nurse-witnesses that it is the treating physician’s duty to diagnose medical conditions.

Defendant presented the testimony of Kathleen Shoup, an R.N. whose credentials include serving as a trainer for certified nursing assistants in the nursing home setting and working for the Department of Health and Hospitals as a licensing and certification surveyor of nursing home facilities.

Ms. Shoup stated that state regulations for nursing homes require that their clinical records contain sufficient information to identify the resident and provide a record of the resident’s assessments, the plan of care and explanation of services provided, and progress notes, as well as the results of any pre-admission screening conducted by the state.

| ^Regarding lab work, the state regulations applicable to nursing homes require that the facility provide or obtain laboratory services only when ordered by the resident’s attending physician.

Specific Standard for Treatment/Documentation of Constipation

Ms. McWaters testified that constipation is a common condition in nursing home residents, even more so for residents with Alzheimer’s/dementia. In fact, constipation is the most common problem nursing residents experience. Constipation in and of itself is not necessarily indicative of colon cancer. Some of the warning signs for colon cancer include significant weight loss, significant change in eating habits/food intake, noticeable behavioral changes, significant change in bowel habits and rectal bleeding. Ms. McWaters stated that in many cases these symptoms do not become manifest until the very late stages of colon cancer.

Another condition that is occasionally experienced by elderly residents, particularly those suffering from Alzheimer’s/dementia, is a distended abdomen. According to Ms. McWaters, this is caused by a decrease in metabolism and bowel motility, as well as a lower level of physical activity.

Ms. McWaters testified that for a resident with Alzheimer’s, such as Mrs. Reagan, who has problems with regularity of her bowel movements, the care plan provides for nursing assistants to remind (or assist) the resident every two hours to use the restroom. Again, the nursing assistants are only to document bowel movements they personally observe. For a resident who is semi-independent, as was Mrs. Reagan, the goal is that she Intake care of as many of her activities of daily living as possible. This includes using the restroom by herself.

Ms. McWaters stated that it is not unusual for there to be few or no bowel movements documented in a resident’s chart and that this is definitely not a “red flag,” when other factors, such as Alzheimer’s/dementia disease process, no significant change in eating habits, frequent independent use of bathroom facilities and no significant change in behavior, are considered.

Treatments for constipation include use of laxatives, such as Milk of Magnesia, stool softeners, such as Colace, application of enemas, as well as an increase in fiber intake and physical activity. According to Ms. McWaters, constipation is a symptom, not a disease. Nonetheless, it requires a doctor’s orders, which can be given on an “as needed” basis, to treat with medication. As a rule of thumb, if a patient or resident fails to have a bowel movement for three days, the cause needs to be determined and addressed.

Ms. Hebert agreed that constipation is a symptom, not an illness, which needs to be addressed or provided for in a resident’s care plan. As opposed to illnesses or diseases, nurses can and should diagnose and treat specific symptoms. There are a number of things which nurses can do to alleviate constipation, none of which require a doctor’s orders, such as increasing fluid intake, increasing fiber consumption and maintaining a closer monitoring of bowel habits.

Ms. Hebert noted that constipation is not in and of itself indicative of colon cancer. Other early warning signals for cancer detection that can be |ureadily observed by nurses include changes in bowel or bladder habits, significant weight loss and changes in behavior.

Breach of the Standard of Care

Ms. McWaters testified that no one at the Glen was aware that Mrs. Reagan had colon cancer until her diagnosis by Schum-pert on July 3, 1996. The cancer was stage II, having spread to the fatty tissue surrounding the colon. The primary tumor was located where the large and small intestine connect. Mrs. Reagan’s chart indicates that she was active and walking around the Glen until the last few days before her admission to the hospital. Ms. McWaters noted that Mrs. Reagan’s activity primarily involved wandering, due to her mental confusion.

Although Mrs. Reagan had Alzheimer’s type dementia, she was able to remember some things and could go to the bathroom by herself. Keeping in mind the goal of individual independence and dignity, Mrs. Reagan’s care plan was that every two hours, a nursing assistant would remind her to go to the bathroom. This was done, asserts Ms. McWaters, but a lot of the time Mrs. Reagan used the restroom facilities on her own.

The Glen records indicate that Mrs. Reagan was first given medication for constipation in June 1995. At that time, one of the nurses called Dr. Borne, Mrs. Reagan’s doctor, who ordered on an “as needed” basis Milk of Magnesia, a laxative. Prior to June 1995, there were no complaints of constipation, although constipation was listed in Mrs. Reagan’s chart as a side effect associated with medication she was taking for Alzheimer’s disease. Beginning in September 1995, the nurses’ notes | ^indicate that Mrs. Reagan would wander when she was constipated. Dr. Borne was again contacted regarding Mrs. Reagan’s constipation in September 1995. At that time, he added a stool softener, Colace, to be administered as needed. Furthermore, Dr. Borne requested that the nurses call him whenever Mrs. Reagan had three doses of Milk of Magnesia without effect.

Mrs. Reagan’s chart indicates that prior to her hospitalization in July 1996, her last annual lab was performed in February 1995. At that time, she was not experiencing constipation problems. When asked why no annual lab was done in February 1996, Ms. McWaters reiterated that they were unable to do lab except pursuant to a doctor’s orders.

According to Ms. McWaters, Mrs. Reagan’s chart reflects that she began experiencing occasional episodes of constipation in June 1995. Ms. McWaters conceded that very few of Mrs. Reagan’s bowel movements were documented. This doesn’t mean, however, that she was not having them. Instead, what the absence of documentation denotes is that the movements were not observed or witnessed by the nursing assistants. Again, the nursing assistants only chart what they personally see. The chart indicates that Mrs. Reagan was using the bathroom by herself (or having accidents on the floor or in the trash can), wasn’t losing weight and was eating the same amount of food. Mrs. Reagan had a toilet by her bedside during the night and used the hall facilities during the day time, most often on her own. Had Mrs. Reagan not had bowel movements, as the flow charts could be | ^interpreted to reflect, she would have gotten worse in a matter of days. This did not happen.

Dr. Borne visited Mrs. Reagan on October 4,1995, one day after the nurses’ notes indicate that she was constipated and suffering from a distended abdomen. Thereafter, on October 12, 1995, Mrs. Reagan had a distended abdomen and her clothing was tight. The nurses’ notes indicate that she had active bowel sounds in all quadrants (indicating no blockage) and that Milk of Magnesia was given. At that point, Mrs. Reagan’s chart did not show a pattern or trend to her constipation, which Ms. McWaters categorized as “sporadic.” Ms. McWaters again emphasized that constipation is only one of the things they look for to determine whether anything of a more serious pathology was occurring. Other factors, such as eating habits, weight and behavior, are just as critical. Mrs. Reagan’s chart did not indicate any significant changes in these areas.

Going through Mrs. Reagan’s chart for November and December 1985, Ms. McWaters noted that, given Mrs. Reagan’s daily medications, dementia and age-related changes, it was not unusual for her to experience constipation. Dr. Borne was seeing her on a regular basis and was fully cognizant of Mrs. Reagan’s condition, including her bouts of constipation.

Although Ms. McWaters felt that Mrs. Reagan’s constipation should have improved by December 1995, the fact that it did not was most probably related to the medications she was taking, as well as her disease process and advancing age. Contrary to plaintiffs’ witness’s contention, the care plan did address Mrs. Reagan’s constipation by providing for toileting every two |17hours, administration of Milk of Magnesia and Colace, as well as increasing fluid intake. Entries in Mrs. Reagan’s record for December 1995 indicate that she was eating regularly, sleeping through the night and able to go to the bathroom alone if reminded.

Notwithstanding entries in Mrs. Reagan’s chart in 1996 regarding episodes of constipation, Ms. McWaters felt that there was never a trend or pattern to her inability to produce a bowel movement such that the nursing staff should have been alerted to the fact that Mrs. Reagan had colon cancer. Again, there were no significant changes in Mrs. Reagan’s weight or food intake. In fact, Mrs. Reagan’s appetite remained consistent until July 1996, the month that she was hospitalized and her colon cancer was discovered.

Toward the end of June 1996, Mrs. Reagan’s chart indicates that she began sleeping more, became less active and involved, and was agitated and confused. On June 30, 1996, Mrs. Reagan became weak and fell on her way to the dining room. As a result, Dr. Borne ordered lab work and CBC tests, which revealed anemia and caused him to order occult blood testing, which revealed the presence of blood in her stool and indicated a more serious pathology. At that point, she was hospitalized and diagnosed with state II colon cancer.

Ms. McWaters noted that Dr. Borne would visit Mrs. Reagan once a month or once every two months and that he had access to all of Mrs. Reagan’s chart, not just the care plan. Usually, an L.P.N. (licensed practical nurse) would make the rounds with Dr. Borne, inasmuch as they were more up-to-speed on the resident’s daily condition and were better able to 1 iscommunicate any changes or abnormalities. Like annual lab work, occult blood testing is never done unless it is ordered by a resident’s treating physician.

Ms. Hebert, on the other hand, testified that the nurses deviated from the standard of care in this case by failing to monitor Mrs. Reagan, coordinate her care plan and chart and present a full clinical picture to Dr. Borne, all of which led to a delay in the discovery of Mrs. Reagan’s colon cancer.

According to Ms. Hebert, she noticed a problem with constipation in Mrs. Reagan’s chart beginning in June 1995. The chart reflects that Dr. Borne was notified and medication was ordered. Although conceding that constipation was provided for in Mrs. Reagan’s care plan, Ms. Hebert felt that it should have been listed under “conditions” in September 1995, inasmuch as problems had been noted and medication was being given for constipation.

By September 1995, because none of the medical interventions were successful, it was time for reevaluation of Mrs. Reagan’s care plan vis-a-vis the constipation. This would have made the nursing staff aware that Mrs. Reagan was not getting better and that it was time to call the doctor again. Ms. Hebert acknowledged that the chart reflects that Dr. Borne was in fact made aware of Mrs. Reagan’s continued complaints in September 1995 by the nursing staff and that additional medication was prescribed.

Ms. Hebert opined that Mrs. Reagan’s chart presented a continual trend of problems that the nursing staff should have picked up on, such as repeated bouts of constipation and related behavioral changes, such as 11flagitation and confusion. Contrary to Ms. McWaters’ testimony, Ms. Hebert felt that the record showed a trend of worsening constipation up until Mrs. Reagan’s diagnosis of colon cancer.

On cross-examination, Ms. Hebert testified that in 1995-96, Mrs. Reagan’s chart indicated that she was exhibiting definite signs of dementia consistent with her Alzheimer’s disease, such as agitation and wandering. Ms. Hebert conceded that the wandering and agitation were both documented in Mrs. Reagan’s chart, as was the fact that these behaviors occurred whenever she was constipated. These are things that Dr. Borne could have seen during his review of Mrs. Reagan’s chart.

Ms. Hebert also stated that as a registered nurse, she has never unilaterally administered a blood occult screening test and that the Glen did nothing wrong by not performing such a test on Mrs. Reagan without an order from her treating physician.

Mrs. Reagan’s chart reflects that Dr. Borne ordered Milk of Magnesia for constipation and that he made notes to that effect almost every month. The record reflects that he checked his own notes in the chart every month and signed orders for Mrs. Reagan’s care as well. Ms. Hebert noted that she did not know what Dr. Borne reviewed when he examined a resident’s chart, nor does she know what his practice was in speaking with the nursing staff or examining the residents.

Ms. Hebert agreed with Ms. McWaters that constipation is a common malady among the elderly and that constipation is a symptom, not a disease. |¡>n The rule of thumb is that there should be a bowel movement every three days; a bowel movement less than twice a week signifies a problem, she explained.

Ms. Hebert then testified that Mrs. Reagan’s severe constipation was reflected in her chart at the Glen. According to Ms. Hebert, Dr. Borne could have determined further treatment for Mrs. Reagan’s constipation had he looked at her chart inasmuch as the repetitive problems she had were clearly documented in her chart. Ms. Hebert then stated that there was nothing which should have prevented Dr. Borne from knowing about Mrs. Reagan’s constipation.

Ms. Shoup testified that she reviewed Mrs. Reagan’s chart for the period 1995-96 and found no violation of the applicable standards of care by the nursing home or its nursing staff. Specifically, Ms. Shoup stated that the Glen did not violate any of Mrs. Reagan’s rights, particularly those of dignity, personal integrity and self-determination.

Furthermore, given her treating physician’s diagnoses of Alzheimer’s and dementia, as well as his standing orders for Milk of Magnesia as needed for constipation, she can only conclude that Dr. Borne was aware of Mrs. Reagan’s constipation problem. As noted by the other expert witnesses, it is the physician’s responsibility to review a resident’s medications and plan of care and to be aware of the contents of a resident’s chart. Ms. Shoup reiterated that diagnosis is the doctor’s responsibility.

| ¡nTestimony of Dr. Chris Rheams

In addition to the above nursing experts, in their attempt to establish liability on the part of the Glen, plaintiffs introduced the testimony of Dr. Chris Rheams, an internal medicine specialist who served on the medical review panel that exonerated Dr. Alan Borne.

Dr. Rheams stated that colon cancer is a very silent disease, for the most part. In most cases, tumors in the colon will not bleed until the latter stage of the disease, nor will they obstruct the intestines early enough so that they can be surgically removed. According to Dr. Rheams, by the time someone has symptoms indicative of colon cancer, all too often the disease is in the latter stages.

Dr. Rheams testified that there is no hard and fast rule regarding annual lab work such as CBC testing. Instead, every physician is different. For Dr. Rheams, the decision to order lab work is individualized per patient.

In reviewing Mrs. Reagan’s chart, Dr. Rheams noted that she was 82 years old, had intermittent constipation, sometimes had a distended abdomen and wandered and experienced mood changes when constipated. Had he been her physician, he would have concluded that all of these were symptoms related to her Alzheimer’s disease. According to Dr. Rheams, all persons with Alzheimer’s suffer from constipation. Treatment for constipation in-eludes increased physical activity, a high fiber diet, use of stool softeners, laxatives, suppositories and enemas.

li>i>When asked whether Mrs. Reagan’s care-givers at the Glen should have known there was more going on than constipation, Dr. Rheams stated that the fact that she had colon cancer could only have been known in retrospect after the colonoscopy. Dr. Rheams couldn’t opine whether Mrs. Reagan’s symptoms were enough to indicate colon cancer as a possible diagnosis to Dr. Borne, nor would he offer an opinion that earlier diagnosis and intervention would have changed the outcome. Dr. Rheams was also unable to state how long the tumor had been there prior to its discovery. According to Dr. Rheams, more likely than not, the tumor was there one year before it was found. However, he stated that the likelihood of the tumor causing symptoms was very doubtful. In his words:

Certainly, those symptoms [abdominal distension, constipation] bring up the question, and there’s no — I mean, that’s on the list of things that cause those symptoms ... [I]t’s easy to see in retrospect that this person had symptoms and that they probably were referable to the colon cancer. But if you were to take a hundred 82-year-olds with Alzheimer’s and look at their abdominal function, you would have to scope all of them.

On cross-examination, Dr. Rheams reiterated that it is the job of the treating physician, not the nursing home, to order tests, inasmuch as it is the doctor who is responsible for diagnosis of illnesses. Nurses are not qualified to diagnose diseases or illnesses. After reading Mrs. Reagan’s chart, had he been her treating physician, in light of her age, Alzheimer’s disease, medications and constipation, he too would have treated her symptomatically-

Dr. Rheams noted that Mrs. Reagan’s chart from the Glen contained many notes regarding constipation and its treatment with laxatives and stool | .^softeners. He felt, however, that there were some inaccuracies in the charting of Mrs. Reagan’s bowel movements, which was to be expected. Nonetheless, Dr. Rheams was adamant that the flowsheets and record as a whole did not indicate a trend or red flag to the nurses or to Dr. Borne.

Dr. Rheams also testified that the practice of annual lab would not have affected Mrs. Reagan’s outcome; she still would have required surgery had the detection process begun a few months earlier (in February 1996 as opposed to July 1996). Actually, Dr. Rheams felt that the outcome could have been the same had the lab work been done in August 1996, almost an entire year earlier. According to Dr. Rheams, because the tumor was slow growing, the timing of the intervention was not critical.

Analysis

Plaintiffs bore the burden of proving by a preponderance of the evidence that the Glen and its staff deviated from the applicable standard of care in their treatment of Mrs. Reagan and that this breach caused or contributed to her injuries. Quite simply, we find that the evidence introduced by plaintiffs is insufficient to bear this burden and that the trial court erred in finding otherwise.

Prevalent through the testimony of all of the expert witnesses in this case is the primary distinction between the roles of physician and nurse. The responsibility for diagnosis, including the decision to further investigate through lab work and other tests, is unmistakably that of the treating physician, not a nursing home or its nursing staff. On the other hand, it is the duty of the nurses involved in the daily care of nursing home presidents to communicate details of the residents’ conditions to their doctors, which is primarily done through entries and documentation in the residents’ charts.

We agree with the trial court that Mrs. Reagan’s bowel movements were rather haphazardly charted by the nursing home staff. We find, however, no causal connection between the nursing staffs failure to document all of Mrs. Reagan’s bowel activity and the delayed diagnosis of her colon cancer. The evidence instead establishes that Mrs. Reagan’s constipation was appropriately documented and addressed by the nursing staff and that Dr. Borne was fully attuned to the situation. Even Ms. Hebert, plaintiffs’ expert witness, stated that the fact that Mrs. Reagan suffered from chronic constipation was adequately documented in her chart, which was available for review by her doctor each time he visited with her. The evidence also shows that Dr. Borne, who was not called as a witness by plaintiffs, in fact knew that Mrs. Reagan had chronic constipation. The record reveals that Dr. Borne visited Mrs. Reagan on a regular basis, every month or two, issued standing orders to administer Milk of Magnesia (June 1995) and Colace (August 1995) as needed and noted her chronic constipation upon her admission to Schumpert in July 1996.

The failure to discern the fact that Mrs. Reagan was suffering from colon cancer cannot be laid upon the shoulders of the Glen or its nurses. If anyone should have been able to determine that more was going on than the aging process, progression of her Alzheimer’s disease or side effects from her medication, it would have been Dr. Borne, Mrs. Reagan’s treating I ^internist. That determination, however, is not for us to make, inasmuch as Dr. Borne got out of the case via a favorable summary judgment ruling.

Conclusion

For the reasons set forth above, the trial court’s judgment is REVERSED.

APPLICATION FOR REHEARING

Before BROWN, C.J. GASKINS, CARAWAY, DREW, and TRAYLOR, JJ.

Rehearing denied.

      . By a later amendment, plaintiffs added a medical malpractice claim against Dr. Alan Borne, Mrs. Reagan’s treating internist, after a medical malpractice review panel rendered an opinion favorable to Dr. Borne. Plaintiffs' claim against Dr. Borne was dismissed by the trial court on summary judgment; this ruling was affirmed by this court in Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134.

      . Because we are reversing the judgment of the trial court on substantive grounds, we do not reach the various procedural and eviden-tiary issues raised by defendant. We will, however, point out that upon Mrs. Reagan's death, La.C.C. art. 2315.1(A)(1) provides that the right to recover damages for her injuries survived for one year from her death in favor of her children (emphasis added). In the instant action, plaintiffs are only two of Mrs. Reagan's ten surviving children, one son having predeceased her. The other eight children are arguably indispensable parties, in whose absence the action should not have proceeded.

      . Notably absent from plaintiffs’ roster of witnesses who testified at trial was Dr. Borne himself.


author: h CARAWAY, J.

text:
    Rickey JOHNSTON, Plaintiff-Appellant, v. LLOYDS INSURANCE CO., Defendant-Appellee.
    No. 37,489-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 18, 2003.

      Sonny N. Stephens, Winnsboro, Dennis G. Stewart, Rayville, for Appellant.
    Corkern & Crews, L.L.C., by Ronald E. Corkern, Jr., for Linda Landrum, LA Association of Clerk of Courts, and Hunt Insurance Group.
    Shotwell, Brown & Sperry by Marshall Napper, Monroe, for Lloyd’s Insurance Co., Allan E. Clare.
    Before STEWART, CARAWAY and DREW, JJ.
   h CARAWAY, J.

Plaintiff brings this action as the assign-ee of a note which was to have been secured by a mortgage. The mortgage instrument, however, was allegedly recorded in the conveyance records and not the mortgage records by the deputy clerk, who is made the defendant in this action. The trial court dismissed the suit on the defendant’s exception of prescription. Preter-mitting that issue, we affirm the dismissal, finding that the plaintiff has no cause or right of action to the claim.

Facts

Appellant Rickey Johnston filed suit on June 15, 1993, against Lloyds Insurance Co., the alleged insurer of the Franklin Parish Clerk of Court (hereinafter the “Clerk”). Johnston’s petition claimed damages arising from the Clerk’s failure to record his parents’ 1980 community property settlement agreement in the mortgage records. The agreement, which is not before the court, allegedly contained a mortgage presumably covering a portion of the former community property and securing a note received by Johnston’s mother. In the petition, Johnston alleged he acquired the note and mortgage by virtue of an assignment from his mother. He further alleged that appellee, Linda Landrum, was the deputy clerk responsible for the error, although she was not initially named as a defendant.

Although the settlement agree-menVmortgage was duly recorded in the parish conveyance records on December 2, 1980, Johnston allegedly did not discover that the instrument was never recorded in the mortgage records until June, 1993. Johnston’s petition alleged that a third party creditor, who | {.outranked him because of the lack of recordation of the mortgage, foreclosed on the property, thereby extinguishing Johnston’s security interest. Johnston claimed damages in the amount of $75,000 as the result of the loss of ranking of this mortgage.

Johnston’s initial petition named only one defendant, Lloyds, the Clerk’s purported errors and omissions insurer during the interval when the community property settlement agreement was recorded. The office of the Clerk has never been sued. Lloyds answered the suit, pleading that the claims-made policy did not afford coverage because the alleged error was not discovered until June, 1993, long after the policy’s effective dates. Lloyds moved for summary judgment and was ultimately dismissed from the suit on November 15, 2001.

Prior to Lloyd’s dismissal, Johnston amended his petition for the first time on March 19,1999, to add the Louisiana Association of Clerk of Courts Risk Management Agency (the insurer of the Clerk at the time he discovered the omission), and its administrator, Hunt Insurance Group, as defendants. They urged a peremptory exception, arguing that the direct action statute did not afford Johnston a cause of action against them. After a hearing, the trial court dismissed them from the proceedings by judgment dated October 19, 1999. When it sustained the exception, the trial court permitted Johnston fourteen days within which to amend his petition.

On October 28, 1999, the trial court authorized Johnston to add Landrum as a party defendant. The second amended petition alleged for the first time that Land-rum was solidarily liable with the prior defendants for ^damages. Answering the suit, Landrum pleaded prescription based on the one year period applicable to torts under La. C.C. art. 3492. After Lloyds’ dismissal in 2001, Landrum was the only remaining defendant in the suit.

Landrum re-urged her exception of prescription and again moved for dismissal in late December, 2001. In written reasons, the trial court found that the prescriptive period for the Clerk’s failure to record the mortgage was the one year applicable to torts, citing Article 3492 and McCall v. United Bonding Ins. Co., 232 So.2d 913 (La.App. 4th Cir.1970). The trial court reasoned that prescription began running when Johnston discovered the nonfeasance in 1993, and since Landrum was not added to the suit until more than six years later, the suit was prescribed. Finally, because Lloyds had been shown not to be the insurer of the Clerk for this claim, the timely filed suit against Lloyds did not interrupt prescription against Landrum.

Johnston appeals asserting that the applicable prescriptive period is ten years. He claims that the Clerk’s nonfeasance occurred in breach of its contractual obligation for recordation of the instrument in the mortgage records.

Discussion

Whether a tort or contract claim arose in 1980 from the alleged nonfeasance by the Clerk, the party with the right to assert that claim was the original holder of the note, Johnston’s mother. Additionally, any contract would obligate the Clerk and not Landrum. The allegation that the note was assigned to Johnston does not give him standing to sue on the asserted contract between his mother and the Clerk.

[4Likewise, under a theory of tort, the alleged tort was committed against Johnston’s mother. Johnston was not a party to the mortgage and the principal obligation which was to have been secured in 1980. He was therefore a third party to the mortgage who would be charged with what the public records revealed or, in this case did not reveal, about the mortgage at the time of the assignment of the note. La. C.C. arts. 3308 and 3309. It therefore cannot be said that the alleged tortious nonfeasance of the Clerk extended to cause damage to Johnston in his failed attempt to acquire a secured note when the mortgage was unrecorded.

An appellate court can raise the peremptory exceptions of no cause or no right of action on its own motion. La. C.C.P. art. 927. We therefore now raise these exceptions. The “cause of action,” as used in the context of the peremptory exception, means the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Mouton v. Dep’t of Wildlife & Fisheries for the State of La., 95-101 (La.App. 1st Cir.6/23/95), 657 So.2d 622, writ denied, 95-2161 (La.11/17/95), 663 So.2d 710, writ denied, 95-2164 (La.11/17/95), 663 So.2d 711. The exception of no right of action raises the question of whether the plaintiff has an actual interest in enforcing judicially the right asserted. La. C.C.P. art. 927(A)(5); Walker v. State Farm Mut. Auto. Ins. Co., 33,781 (La.App.2d Cir.8/25/00), 765 So.2d 1224; Byrd v. Int’l Paper Co., 594 So.2d 961 (La.App. 3d Cir.1992).

Based upon our above review of Johnston’s allegations, we find that Johnston has no cause and no right of action to the claims he has brought against the deputy clerk, Landrum. We affirm the trial court’s dismissal on these peremptory grounds and pretermit review of the prescription ruling. Costs of appeal are assessed to appellant.

AFFIRMED ON OTHER GROUNDS.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.