author: | PATRICIA RIVET MURRAY, Judge.

text:
    Keith A. WILLIAMS and Debra Williams Individually and On Behalf of their Minor Son Keith Williams, II v. MEMORIAL MEDICAL CENTER (Formerly known as Mercy-Baptist Hospital), Dr. John N. Udall, Dr. Charles B. Hill, Dr. Victor E. Lunyong, Children’s Hospital, Dr. Uwe Blecker, Dr. Elizabeth E. Mannick, Marlene M. Buis and Dr. Eberhard Schmidt-Sommerfeld.
    No. 2003-CA-1806.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2004.

      Harry E. Cantrell, Jr., The Cantrell Law Firm, New Orleans, LA, for Plaintiffs/Appellants.
    C. William Bradley, Jr., J. Don Kelly, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendants/Appellees, M. Marlene Buis, M.D., Victor Lunyong, M.D., Tenent Health Systems, Memorial Medical Center, Inc. and Professional Liability Insurance Company.
    Allison H. Penzato, Mang Batiza Gaudin Godofsky & Penzato, Covington, LA, for Defendant/Appellee, Charles B. Hill, M.D.
    Nicole C. Palmisano, Law Offices of Mi-chey S. deLaup, Metairie, LA, for Defendant/Appellee, Children’s Hospital.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   | PATRICIA RIVET MURRAY, Judge.

This is a wrongful death and survival action grounded in medical malpractice. The plaintiffs, Keith A. Williams and Debra Williams, individually and on behalf of Keith A. Williams, II (the ‘Williams”), appeal the trial court’s judgment granting the three motions for summary judgment filed by the defendants and dismissing the claims against all the parties. Based on our de novo review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The alleged malpractice in this case spanned almost the entire life span of the patient, a new-born baby boy named Keith Williams, II; the baby was born on July 17, 1996, and died sometime in 1997. The cause of death apparently was liver failure due to “short gut syndrome.” The baby spent the majority of his life in three hospitals where he was treated by numerous physicians.

First, on July 21, 1996, when he was four days old, his parents presented him to the emergency room at Memorial Medical Center (formerly Mercy-Baptist | P,Hospital) with what appeared to be yellow jaundice. He was examined and admitted for treatment.

On July 22, 1996, the baby’s conditioned worsened, and the treating neonatologists, Drs. Victor E. Lunyong and Marlene M. Buis, requested a surgical consultation from Dr. Charles B. Hill, a pediatric surgeon. The baby remained in Memorial Medical Center from that date through October 1996; during that period, he apparently was under the care of Drs. Lu-nyong, Buis, and Hill. The next significant event reflected in the record occurred on October 10, 1996, when Dr. Hill performed an emergency exploratory laparotomy on the baby.

On October 17, 1996, the baby was transferred from Memorial Medical Center to Children’s Hospital for a liver biopsy. At Children’s Hospital, Dr. John Udall performed the liver biopsy and determined that the baby needed a liver transplant. For that reason, Dr. Udall recommended that the baby be transferred to the University of Nebraska Medical Center (the “UNMC”).

On October 25, 1996, the baby was transferred from Children’s Hospital to the UNMC. At UNMC, the baby was treated by Drs. Stuart Kautman (a pediatric gastroenterologist), Stephen Raynor (a pediatric surgeon), and Lewis Pinch (a pediatric surgeon). On October 30, 1996, Dr. Raynor performed surgery on the baby to determine if a transplant was needed. According to the operative report, the preoperative diagnosis was “small bowel obstruction with enterocuta-neous fistula, liver failure.” The postoperative diagnosis was the same with the addition of “with large intra-abdominal abscess cavity.”

|30n December 19, 1996, the baby was transferred from UNMC back to Children’s Hospital. At some point, according to Children’s Hospital on April 1,1997, the baby was discharged as an inpatient and began treatment as an outpatient at Children’s Hospital. According to the Williams’ allegations, the baby’s condition deteriorated further due to the substandard treatment he received at Children’s Hospital. As noted, the baby died sometime in 1997.

On July 17, 1997, the Williams filed a proposed complaint of medical malpractice with the Louisiana Patients’ Compensation Fund (“LPCF”). In their complaint, the Williams named as defendants Drs. Hill, Lunyong, Buis, Udall, Blecker, Mannick, and SchmidNSommerfeld. The Williams also named as defendants Memorial Medical Center and Children’s Hospital; these two hospital-defendants were alleged to be vicariously liable for the negligent actions of the physicians whose actions they controlled. All the defendants were alleged to be qualified health care providers under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.47, et seq. The LPCF, however, notified the Williams that only Drs. Hill, Lunyong, and Buis, and Memorial Medical Center and Children’s Hospital (hereinafter collectively referred to as “Defendants”) were qualified providers.

| ¿The parties proceeded with the formation of the medical review panel. The Williams nominated as their panel appointee Dr. Sandra Robinson, a pediatrician. The other two panel appointees were Dr. Faith Hansbrough, a pediatric surgeon, and Dr. Janet Larson, a neonatologist. On September 20, 2000, the medical review panel issued its opinion finding unanimously in favor of the five qualified provider-defendants. As to Children’s Hospital and Memorial Medical Center, the panel reasoned that “[tjhere is nothing in the record presented to the panel to review to indicate that the hospitals and/or their employees deviated from the standard of care.” As to Drs. Lunyong, Buis, and Hill, the panel gave the following reasons:

1. The care submitted was superlative both medical and surgical.
2. There was complete cooperation between the medical and surgical teams.
3. The timing for the surgery was appropriate.
4. Post-operative course was anticipated and predictable in this pre-term baby.

On November 20, 2000, the Williams commenced the instant suit in Civil District Court against the same defendants and making the same allegations. On July 30, 2001, the Williams filed a supplemental and amended petition adding as defendants the liability insurers of the respective defendants; namely: St. Paul Insurance Company as insurer for Children’s Hospital; Professional Liability Insurance Company as insurer for Drs. Lunyong and Buis; and Louisiana Medical Insurance Company as insurer for Dr. Hill. In that amended petition, the Williams |salso clarify that Memorial Medical Center is now owned by Tenet Health System Memorial Medical Center, Inc.

The allegations of negligence asserted in the original and amended petition included that:

• Memorial Medical Center and Children’s Hospital are vicariously liable for the actions of its employees.
• Drs. Lunyong and Buis failed to diagnose the baby’s condition during their treatment of the baby at Memorial Medical Center in July to October 1996.
• Dr. Hill failed to perform exploratory surgery when the baby was first brought to the hospital and negligently removed the baby’s bowel in the emergency exploratory surgery he performed on October 10,1996.
• Dr. Udall wrongfully diagnosed the baby as needing a liver transplant after performing a liver biopsy at Children’s Hospital on October 17,1996.
• Children’s Hospital’s employees failed to perform according to the standard of care for inpatient and outpatient care of the baby both before and after the baby’s transfer to UNMC.

In response, Defendants answered, generally denying the allegations of the petitions. Defendants also filed motions to compel the Williams to answer interrogatories seeking, among other things, disclosure of the experts the Williams planned to call at trial to establish the allegations of malpractice pled in their petitions. The Williams responded that they did not have any such expert at the time.

On December 6, 2001, a status conference was held at which attorneys for all the parties were present and at which the trial court set the jury trial in this matter for September 18, 2002, and ordered the Williams to disclose all expert witnesses by March 6, 2002. On March 5, 2002, however, the Williams filed a Motion for Extension of Time to Disclose Expert and for Expedited Hearing. In that motion, they represented to the court that they needed a 120-day extension to 1 fidisclose the name of the experts they intended to use at trial. Their articulated reason for seeking this delay was that “the principal expert plaintiffs have retained is still reading the medical records which weigh approximately 58 pounds and he will not allow plaintiffs to reveal his name until he is able to issue an intelligent report.” Defendants strenuously opposed the requested delay as excessive.

On Aprñ 5, 2002, a hearing was held on the Williams’ motion to continue, which the trial court granted. On May 30, 2002, a second status conference was held at which attorneys for all the parties were present and at which the trial court issued a second scheduling order. That order reset the jury trial for February 10, 2003 and required the Williams to disclose all their witnesses, including experts, by September 9, 2002. That order also required the defendants to disclose their witnesses by October 9, 2002 and set a discovery cut-off date of December 20, 2002. In October, Defendants timely filed their witness lists. Given the Williams’ failure to file their list of expert witnesses timely pursuant to this second scheduling order, Defendants filed motions for summary judgment. More precisely, three motions were filed: (i) Dr. Hill filed one on October 22, 2002; (ii) Memorial Medical. Center and Drs. Lu-nyong and Buis filed one on October 30, 2002; and (iii) Children’s Hospital filed one on November 21, 2002.

In support of their respective motions for summary judgment, Defendants emphasized the failure of the Williams to name any expert. Defendants attached a copy of the medical review panel’s favorable opinion as well as a panel member’s affidavit. Particularly, Dr. Hill attached a copy of Dr. Hansbrough’s affidavit, attesting that Dr. Hill complied with the standard of care. Drs. Lunyong and Buis and Memorial Medical Center attached a copy of Dr. Robinson’s affidavit attesting that Defendants complied with the applicable standard of care. Likewise, Children |7Hospital attached a similar affidavit by Dr. Robinson, who, as noted above, was the Williams’ panel nominee.

Meanwhile, in November 2002, apparently prompted by these summary judgment motions, the Williams filed (two months late) their first witness list, naming the three doctors who treated the baby at UNMC as their experts; to wit: Dr. Kaufman (pediatric gastroenterologist), Raynor (pediatric surgeon), and Pinch (pediatric surgeon). Shortly thereafter, the Williams filed an amended witness list adding as an expert, Dr. Robert Koppel, a neonatologist.

Because the three summary judgment motions raised virtually identical issues, the trial court treated them together. The trial court initially set the hearing date on the three motions for December 6, 2002. In response, the Williams filed a motion to continue that hearing date. In support, they alleged that to properly oppose the pending motions they needed a neonatologist’s expert testimony. They further alleged that they had been in contact with Dr. Koppel, that he was willing to provide evidence in opposition to Defendants’ motions, and that he had “not yet been able to prepare an opinion report.” The Williams attached to their motion an email from Dr. Koppel, which stated that he had only been provided with an “abstract of the case,” enumerated the voluminous medical records he would require to provide such a report, and set forth the fees he would charge for such a medical record review. As Defendants aptly characterize this e-mail, it was simply a fee retainer letter. Responding to the Williams’ motion to continue, Defendants filed a motion to exclude the newly disclosed expert witness from testifying at trial given the Williams’ failure to comply with the court’s scheduling order.

On December 6, 2002, the trial court held a hearing on Defendants’ three summary judgment motions, motion to exclude the Williams’ expert witness, and |sthe Williams’ motion to continue. At the close of the hearing, the trial court declined to extend the cut-off dates or to upset the trial date then set for February 10, 2003 or to exclude the Williams’ expert witness. However, the court ordered that the Williams produce the expert reports in their possession, which they apparently referred to in argument, to the defendants by the close of that business day. The trial court further limited the Williams to the two expert witnesses that they identified to the court in oral argument, namely Dr. Raynor (pediatric surgeon) and Dr. Koppel (neonatologist). The trial court still further ordered that the Williams’ expert witnesses be made available for deposition before January 10, 2003. Finally, the trial court reset the hearing on Defendants’ three summary judgment motions for January 24, 2003.

On December 20, 2002, the Williams filed a motion to substitute expert witness, seeking to substitute, Dr. Stuart Bohrer, a pediatric surgeon from New York, in place of Dr. Raynor, the UNMC pediatric surgeon. In support of this motion, the Williams represented that “Dr. Raynor has recently indicated he will be unavailable for a deposition through much of January 2003 at least, whereas Dr. Bohrer is available.” On that same date, the Williams filed a motion to extend the deposition discovery cut-off date or to continue trial and to re-set discovery cut-off dates. As noted above, the trial had been set for February 10, 2003, and the discovery cutoff date for December 20, 2002, which was the same date this motion was filed. In support, the Williams represented that they were “having difficulty securing Defendants’ cooperation in scheduling depositions of their expert witnesses” and that they were “in the process of scheduling the depositions of their experts in Nebraska in January 2003.”

| gOpposing the Williams’ motion to substitute expert witness, Defendants obtained and submitted affidavits from the two UNMC doctors, Drs. Raynor and Kaufman. Each of the UNMC doctors attested: (i) that he had treated the Williams’ baby in October and November 1996 at UNMC; (ii) that he had neither been retained as plaintiffs’ expert, nor had any intent of serving as plaintiffs’ expert in this matter; and (iii) that he had not stated that he believed that Defendants breached the applicable standard of care in treating the Williams’ baby in 1996.

On January 7, 2003, the Williams produced to Defendants a report from their newly retained neonatology expert, Dr. Koppel. In that report, Dr. Koppel expressed his opinion that the neonatology defendants, Drs. Lunyong and Buis, had not breached the applicable standard of care. Particularly, Dr. Koppel noted the neonatologists were presented with two options when presented with abdominal distention in a newborn baby; they could have either: (1) independently ordered an upper GI contrast study to rule out malro-tation, or (2) consulted a pediatric surgeon. Continuing, he opined that they complied with the applicable standard of care by selecting the latter alternative and consulting with Dr. Hill, a board-certified pediatric surgeon. Indeed, he commented that Drs. Lunyong and Buis “provided dedicated care to support this infant through his many complications.” Dr. Koppel further noted that Dr. Hill had staff privileges at both Memorial Medical Center and Children’s Hospital and that he could have arranged an earlier transfer if he felt the staff and facilities at Memorial Medical Center were inadequate for the baby’s needs. Finally, Dr. Koppel concluded his report by noting he had arranged for Dr. Bohrer, a pediatric surgeon, to review this matter. 11ftAs noted above, the Williams filed a motion to add Dr. Bohrer as an expert witness in this matter.

On January 17, 2003, the Williams filed an opposition to the pending summary judgment motions. In it, they noted they had received Dr. Bohrer’s preliminary report, albeit admittedly not in proper affidavit form, in which he expressed his opinion that the initial diagnosis of necrotizing en-terocolitis by Drs. Lunyong and Buis appeared to be incorrect and that “[i]f, in fact, the child had a midgut volvulus (as a result of the malrotation), the protracted medical course and eventual death were avoidable by early surgical intervention.” Dr. Bohrer’s report further expresses his opinion that this determination “cannot be made without further discovery.” That further discovery, the Williams explained, required taking the depositions of the neo-natolgist, Drs. Lunyong and Buis, and the operating surgeon at UNMC, Dr. Raynor. The Williams further stated in their opposition that Dr. Bohrer’s statement was confirmed by correspondence from Effie Moten, M.D., which they attached, in which she states that the studies done at UNMC “suggested that the child had a rotated bowel, a condition that might have been the origin of Keith’s problems.” Although that correspondence quotes Dr. Raynor’s operative report, it adds the emphasized sentence not found in the original report; particularly:

What would appear to be the large cavity on the upper GI study was a wide-open abscess cavity with disrupted loops of bowel emptying into it. There was a stricture of the sigmoid colon with a fístula going to the abscess cavity. This is the point ichere the bowel was obstructed. There were disrupted loops of what appeared to be distal ileum open into the abscess cavity within the peritoneal cavity. The ascending colon seemed viable. The proximal transverse colon was stenotic, or closed and I could identify no distal transverse or deseend-ing colon. The sigmoid colon was present with the fistula as previously noted. We did find 40 cm of normal-looking bowel distal to the ligament of |nTreitz. The liver was green, large, and very firm to palpation. (Emphasis added).

Due to the trial judge’s illness, the hearing on the Defendants’ summary judgment motions that was set for January 23, 2003 was reset for January 31, 2003. On that date, the trial court conducted a hearing on the summary judgment motions. At that hearing, Defendants introduced an affidavit by Dr. Raynor, dated January 30, 2003, in which he attested that during the surgery he performed at UNMC in October 1996 he “did not identify any malrotation of the intestine,” that his “operative findings are not consistent with a malrotation with midgut volvulus,” and that he “hold[s] these opinions to a reasonable degree of medical certainty.” Attached as an exhibit to his affidavit was his operative report, quoted above.

At the end of the January 31, 2003 hearing, the trial court indicated that it was “included to grant the summary judgments.” However, the trial court instead decided to take the matter under advisement given that the depositions had not yet been taken and given that this case involved the death of a baby. On February 6, 2003, the trial court rendered a judgment ordering that the Defendants’ three pending summary judgment motions be continued and reset for March 14, 2003. The trial court further ordered that the Williams had thirty days to take the depositions of Drs. Raynor, Hill, Buis, and Lu-nyong.

On March 11, 2003, the Williams once again filed a motion to continue the hearing date on Defendants’ motion for summary judgment set for March 14, 2003. In support, they represented that they had taken the deposition of Dr. Hill in | ^February 2003, but claimed they were unable to prepare their defense of the motions without the transcript of that deposition, which would not be available for at least two weeks. Additionally, they claimed that the depositions of Drs. Lu-nyong and Buis had been scheduled for March 6, 2003, but the defendant-doctors’ attorney informed them he would be unavailable for that date and requested a continuance to March 13, the day before the summary judgment hearing. Again, the Williams claimed that they could not prepare their defense without the transcript from such depositions. On March 10, 2003, the trial court, without holding a hearing, ordered that the hearing date on Defendants’ motions for summary judgment be continued to May 16, 2003. For some reason, the actual hearing date was reset for May 30, 2003.

On May 27, 2003, three days before the scheduled hearing, the Williams filed a memorandum in opposition to the motions for summary judgment in which they urged that the trial court continue the hearing because they were unable to depose Drs. Lunyong and Buis. Countering, defense counsel (i.e., counsel for Drs. Lu-nyong and Buis) referred to correspondence reflecting that on February 25, 2003, he offered to produce his clients for their depositions on March 12, 2003, which was fifteen days notice. On April 23, 2003, defense counsel offered to produce Dr. Buis for either May 1st or 2nd, 2003, and Dr. Lunyong for May 2, 2003. On May 6, 2003, defense counsel offered to produce Dr. Buis for May 8, 2003. According to defense counsel, the Williams’ attorney failed to respond, and defense counsel appeared on May 2nd with Dr. Lunyong and on May 8th with Dr. Buis and took process verbals.

After being continued three times, the trial court ultimately decided the three motions for summary judgment on May 30, 2003. At that hearing, the Williams | ^orally re-urged their request for a continuance based on their inability to depose Drs. Lunyong and Buis. Denying that request and granting Defendants’ three summary judgment motions, the trial court articulated the following oral reasons:

“I’ve reviewed all of these records. And, quite frankly, it’s a — I don’t think anything you could do in taking these depositions would change the outcome of this case. After a clear review of all the motions for summary judgments and the oppositions that were filed, while my heart goes out to the Williams family, I just don’t think that there’s anything that would allow you to be successful at trial in connection with this case. I think you’ve done everything that you could possibly do to try to prosecute this case and to attempt to get experts to assist you in at least raising the issue of malpractice.
But based on everything that’s been provided so far, I just don’t see that, how you could possibly be successful at trial in any way, shape, or form.”

The instant appeal by the Williams followed.

ANALYSIS

On appeal, the standard of review of a trial court’s decision granting summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Potter v. First Federal Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318, 325 (La.1993). “An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appell[ee] is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. We are also guided by the Legislature’s admonition that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action” and that “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C. Civ. Pro. art. 966 A(2). Nonetheless, in deciding a motion for summary judgment “courts cannot consider 114the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at p. 27, 639 So.2d at 751.

If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment shall be rendered. La. C. Civ. Pro. Art. 966 B. The moving party has the burden of establishing that there are no genuine issues of material fact. La. C. Civ. Pro. Art. 966 C(2). However, Article 966 C(2) now provides that if the disposi-tive issue is one on which the nonmoving party will bear the burden of proof at trial, then the moving party is not required to negate every essential element of the non-moving party’s claim. The moving party may satisfy its burden merely by “pointing out” the absence of support for one or more essential elements of the nonmoving party’s claim. “This ‘pointing out’ should be more than a bare assertion, as the mover still bears the burden of proof, which includes the burden of persuasion.” Lee v. Wall, 31,468, p. 1 (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1047 (Norris, C. J., concurringXciting David W. Robertson, Summary Judgment and Burden of Proof: Effects of the 1996 Amendment, 45 La. B.J. 331, 333 (1997)).

In meeting the burden of proof, unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; “merely stapling them to a motion for summary judgment” does not “magically” transform such documents into competent |1ssummary judgment evidence. Schully v. Hughes, 2000-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222. However, expert opinion testimony in the form of either an affidavit or deposition may be considered in support of a motion for summary judgment. Johnson v. State of Louisiana/University Hosp., 2001-1972, p. 3 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 369 (citing Independent Fire, supra).

In a medical malpractice case, the medical review panel’s opinion is admissible as expert evidence on a motion for summary judgment. Richoux v. Tulane Medical Ctr., 617 So.2d 13, 16 (La.App. 4 Cir.1993). Stated otherwise,”[t]he findings of the medical review panel, whose members are physicians actively working in their fields of expertise, are based on the experts’ personal knowledge gained through experience and may be considered in evaluating a summary judgment.” Hin- son v. Glen Oak Retirement Home, 34,281, pp. 4r-5 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134, 1137 (citing La. R.S. 40:1299.47(H)).

The elements a plaintiff in a medical malpractice action is required to establish are statutorily defined as follows:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
|1fi(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794 A.

Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries resulting therefrom. Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233. To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Although the jurisprudence has recognized exceptions in instances of obvious negligence, these exceptions are limited to “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Pfiffner, 94-0924 at p. 9, 643 So.2d at 1234; see also Coleman v. Deno, 2001-1517, p. 20 (La.1/25/02), 813 So.2d 303, 317. The jurisprudence has thus recognized that “an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Williams v. Metro Home Health Care Agency, Inc., 2002-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228. Moreover, the jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendants have filed summary |17judgment motions and supported such motions with expert opinion evidence that their treatment met the applicable standard of care. Lee v. Wall, 31,468, p. 4 (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1046-47 (collecting cases).

Turning to the Williams’ assignments of error, they first argue that the trial court erred in granting summary-judgment before they could conduct the depositions of two of Drs. Lunyong and Buis. According to the Williams, their attempts to depose these two defendant-doctors were stymied by the defense attorney, who resisted scheduling his clients’ depositions. They contend that it was an abuse of discretion for the trial court to grant summary judgment before they could take these depositions.

Addressing a similar issue, this court in Richoux, supra, held that, as a practical matter, the only prerequisite for a trial court to decide a motion for summary judgment, over the nonmoving party’s request for a continuance, is that “the parties be given a fair opportunity to present their claim.” Richoux, 617 So.2d at 17 (citing Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908 (La. 1986)). In that case, we held that, despite the lack of a discovery cut-off date, it was not an abuse of discretion for the trial court to refuse to grant a continuance to allow plaintiff to take a deposition and to rule on the motion for summary judgment when it did.

Similarly, in Rhea v. Winn Dixie Market Place Store, 2002-2181 (La.App. 4 Cir. 6/4/03), 849 So.2d 759, cited by Defendants, we reached a similar result. Holding that the plaintiff had ample time to conduct discovery before the court ruled on the defendant’s summary judgment motion, we reasoned:

halt is the province of the trial court to control the progress of discovery. Where, as here, the plaintiff had adequate time since the filing of the complaint [in July 2001] to secure discovery and was given the opportunity for discovery, there was no abuse of the trial court’s wide discretion in discovery matters [in ruling on the motion in August 2002].

Rhea, 2002-2181 at p. 4, 849 So.2d at 762.

Similar principles are codified in Uniform District Court Rule 9.17, which provides:

The court may grant a continuance of a trial or hearing for good grounds. Among the factors the court will consider are the diligence and good faith of the moving party, the reasonableness of the grounds, fairness to both parties, and other litigants before the court, and the need for the orderly and prompt administration of justice.

Rules for Civil (Non-Family or Domestic Relations) Proceedings in District Courts, Rule 9.17; see also La. C. Civ. Pro. Arts. 1601, 1602. As the factors enumerated in this rule reflect, the grant or denial of a continuance is a fact-intense determination over which the trial court has great discretion. In making that determination, the governing principle, as stated in the jurisprudence, is to ensure that before ruling on the motion “the parties be given a fair opportunity to present their claim.” Ri-choux, 617 So.2d at 17.

Applying these principles here, we find the Williams were given a fair opportunity to present their claim before the trial court ruled on Defendants’ three summary judgment motions. The record reflects that the underlying medical malpractice occurred in 1996 and 1997. The medical malpractice panel issued its opinion in September 2000, and the Williams filed this suit in November of that same year. Hence, when the trial court ruled on the summary judgment motions almost seven years had elapsed since the occurrence of the alleged medical malpractice, and the suit had been pending for almost three years. At the L ¡Williams’ request, and over Defendants’ strenuous objections, the trial court continued the jury trial date two times. Likewise, the trial court continued the hearing date on Defendants’ motions for summary judgment motion three times. All five of these continuances were granted to allow the Williams additional time, in general, to pursue discovery and, in particular, to depose experts. Given the procedural history of this case, we cannot say that the trial court abused its discretion in denying the Williams’ request to continue the hearing date on summary judgment motions.

The Williams’ second assignment of error is that the trial court erred in basing its judgment on its subjective beliefs that these depositions would not change the outcome of the case and that the Williams would not prevail at trial. Defendants counter that the trial court simply found the Williams failed to come forward with any expert evidence to establish their case. We agree.

As noted above, because Defendants will not bear the burden of proof at trial, they were not required to negate all the essential elements of the Williams’ malpractice action to prevail on their motion for summary judgment; rather, they were only required to “point out” an absence of factual support for one or more elements essential to the Williams’ malpractice action. Defendants met their burden of “pointing out” the absence of factual support for the Williams’ claims by producing the unanimous finding of the medical review panel as well as affidavits from the individual panel members that Defendants’ treatment of the Williams’ baby did not fall below the applicable standard of care. Defendants also produced the affidavit of the UNMC surgeon, Dr. Raynor; Dr. Raynor attested that the baby did not have the condition the Williams’ experts, Dr. Bohrer and Dr. Koppel, | ¡^suggested that the baby might have had (ie., midgut volvulus as a result of malrotation).

Given that Defendants met their “pointing out” burden, the burden shifted to the Williams to produce sufficient factual support to establish that they would be able to satisfy their evidentiary burden at trial. It is undisputed that this is not a case involving obvious negligence; rather, it is conceded that the Williams were required to produce expert medical testimony to establish the applicable standard of care and the breach thereof. Indeed, the reason the trial court granted Defendants’ summary judgment motions, as Defendants’ emphasize, was because the Williams failed to satisfy their burden of presenting such competent expert evidence.

Although the Williams acknowledge that they did not introduce any competent expert evidence in opposition to Defendants’ summary judgment, they argue that the trial court improperly made subjective determinations on summary judgment. That argument is premised on the well-settled principle that it is improper for courts to consider the merits, make credibility determinations, evaluate testimony or weigh evidence on summary judgment. The Williams reliance on that principle in this case, however, is misplaced. This is not a case in which the trial court was presented with divergent expert opinions and made an improper determination that the opinions of one expert were more credible than that of another. This was a case in which the only expert opinions the trial court had before it were those of the three members of the medical review panel and the 121 surgeon from the UNMC, Dr. Ray-nor. None of these opinions supported the Williams’ position that Defendants’ treatment of their baby violated the applicable standard of care. In light of the expert evidence produced by Defendants and the Williams’ failure to come forward with countervailing expert evidence to establish a genuine issue of material fact, we find the trial court properly granted Defendants’ motions for summary judgment and dismissed this case.

DECREE

For the foregoing reasons, the judgment of the trial court granting Defendants’ motions for summary judgment and dismissing this action as to all the parties is affirmed.

AFFIRMED.

      . In July 1997, when the Williams filed their proposed complaint with the Louisiana Patient Compensation Fund, their baby was still alive; the petition alleges that the baby was at Tulane Hospital as of that date. However, some time after the baby was discharged from Children's Hospital, which apparently was in April 1997, the baby died at St. Claude General Hospital following some emergency visits.

      . A copy of the LPCF’s letter was included as an exhibit to the application for emergency supervisory writs filed earlier in this matter, which we denied. 2003C0376 (La.App. 4 Cir. 2/21/03). These four individual nonqualified provider-doctors neither answered the petition nor participated in the protracted pretrial procedures in this case. We note there is a Motion for Default in the record dated November 2001 as to Dr. Mannick; however, no further action was taken on that matter. Apparently, the Williams are not pursuing these four other doctors other than through their employer, Children’s Hospital, as evidenced by the allegation in their amended petition that Children’s Hospital "at all times herein the employer of Drs. John Udall, Uwe Blecker, Eberhard Schmidt-Sommerfeld, and Elizabeth Mannick and is therefore liable under the Doctrine of Respondeat Superior for their failure to perform according to the standard of care.” This view is still further supported by the fact that the trial court’s judgment not only grants the summary judgments filed by Dr. Hill, Memorial Medical Center, Dr. Buis, Dr. Lunyong, and Children's Hospital, but also provides that "this matter is dismissed with prejudice as to all parties.”

      . The LPCF's letter reflects that Memorial Medical Center was self-insured.

      . Although Memorial Medical Center and Drs. Buis and Lunyong filed an application for emergency supervisory writ from that decision, this court denied the writ, finding “no abuse of the trial court’s discretion.” 2003C0376 (La.App. 4 Cir. 2/21/03).

      . La. C. Civ. Pro. Art. 966 C(2) provides:
      The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

      . La. R.S. 40:1299.47(H) provides that the “report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant."

      . The Williams allege liability on the part of Memorial Medical Center and Children’s Hospital based on the respondeat superior doctrine. It is well-settled that a hospital is liable for its employee’s negligence, including its doctors, under that doctrine. Gibson v. Bossier City General Hosp., 594 So.2d 1332, 1343 (La.App. 2d Cir. 1991). The liability imputed to the hospital under that doctrine must be viewed in light of the doctors’ actions. Hence, it follows then, that the applicable standard of care as to both the two hospital defendants and the three individual defendants is the same; to wit, the standard set forth in La. 9:2794.

      . As noted above, the Williams opposed the summary judgment by arguing that they were unable to develop their opposition because they were stymied in their attempts to take the defendant-doctors’ depositions. We con-eluded above, however, that the trial court’s refusal to grant the Williams’ request for a continuance of the hearing so that they could take those depositions was not an abuse of discretion.


source: Caselaw Access Project

license: Public Domain

text:
    Steven ROSEN, individually and on behalf of his Minor Children, Jordan Rosen and Courtney Rosen, and Robin Renee Fuller, Wife of Steven Rosen v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Fireman’s Fund Insurance Company, Ryan Sturprich and Adele Lejune.
    No. 2003-CA-1744.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2004.

      Robert F. Shearman, Kevin D. Shear-man, Shearman & Shearman, L.L.C., Me-tairie, LA, for Plaintiffs/Appellants.
    C. Gordon Johnson, Jr., James R. Nies-et, Jr., Porteous, Hainkel & Johnson, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   | PATRICIA RIVET MURRAY, Judge.

In this personal injury case, the plaintiffs, Robin Rosen and her husband, Steven Rosen, individually and on behalf of his two minor children (the “Rosens”), appeal from a judgment sustaining the exception of prescription filed by the defendants, State Farm Mutual Automobile Insurance Company and its insured, Adele Lejune. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 1991, the Rosens, who are Texas residents, were involved in a motor vehicle accident in Orleans Parish. The accident occurred when the van in which the Rosens were riding was struck from behind by a vehicle operated by Ryan Sturprich and owned by his mother, Ms. Lejune. Following the accident, the Ro-sens retained Ronald Bass, a Texas attorney, to represent them. Mr. Bass, who handled primarily personal injury matters, shared office space with Mr. Rosen, who also was a Texas attorney.

Within a week of the accident, Mr. Bass began communicating with Yolanda Booth, an adjuster in State Farm’s Houston, Texas office, regarding the accident. Likewise, Mr. Bass’s secretarial-assistant, Nina Marino, and Mrs. Rosen herself ^communicated with Ms. Booth regarding the accident. During the one-year period following the accident, Ms. Booth, on State Farm’s behalf, made payments for property damage to the Rosens totaling $6,961.44. These payments were for damage to the Rosens’ van; various personal items that flew out the back of the van or were damaged, including Mr. Rosen’s golf equipment; and car rental payments.

Also during this one-year period, Mrs. Rosen, who was pregnant at the time of the accident, underwent medical treatment for the personal injuries she allegedly sustained. Mr. Bass forwarded copies of Mrs. Rosen’s medical expenses to State Farm through Ms. Booth when he received them from the doctors. State Farm, however, made no payments of medical expenses. According to the Rosens, Ms. Booth requested that Mr. Bass forward all of Mrs. Rosen’s medical expenses so that they could settle the matter. Mrs. Rosen’s medical treatment, however, extended beyond the one-year period.

On October 10, 1992, the Rosens filed this suit in Orleans Parish. Named as defendants were the driver, Mr. Sturprich (who was a minor at the time of the accident); the driver’s parents, Anthony Sturprich and Adele Lejune (who had separate addresses); State Farm, the driver’s mother’s (Adele Lejune’s) liability insurer; and Fireman’s Fund Insurance Company, the Rosens’ uninsured motorist carrier.

On November 24, 1992, State Farm, on behalf of itself and its insured, filed an exception of prescription, noting that the accident occurred on July 7,1991, yet 1¡¡suit was not filed until October 10, 1992, more than a year later. State Farm thus contended that the suit was prescribed under the one-year period for delictual actions set forth in La. C.C. art. 3492. The Ro-sens countered that prescription was interrupted under La. C.C. art. 3464 as a result of State Farm’s acknowledgment of liability. The Rosens sought a continuance of the hearing on the exception to allow discovery. Opposing the continuance and the need for discovery, State Farm argued that pursuant to the obligations imposed on it by La. R.S. 22:658(2), it made several uncontested payments to conclude the Ro-sens’ property damage claims. The Ro-sens’ request for a continuance was granted and a protracted period of discovery followed.

As part of that discovery, the Rosens sought production of State Farm’s entire claims file on this matter. On June 30, 1994, the trial court rendered judgment on the discovery issues, holding that it had conducted an in camera review of State Farm’s entire claim file and that it had found “no information in the file, sufficiently relating to this [prescription] issue to justify production of the file.” In that judgment, the trial court ordered State Farm to provide the Rosens with two listing: (i) a listing of all the payments it had made to them; and (ii) a listing of the contacts it had with them, or their representatives, both verbal and written.

In compliance with the trial court’s order, State Farm complied a “List of Contacts,” which detailed the following communications and payments:

• July 9, 1991 — Claimants (the Rosens) called State Farm (self-referral). State Farm sent check for $2,103.41 ($1,943.41 property damage) (estimate vehicle repairs) and $160 (auto rental) to Mrs. Rosen.
• July 10, 1991 — Ms. Booth, State Farm’s claim adjuster, called Mr. Bass and left message to call her back.
14» July 11,1991 — Mr. Bass faxed letter of representation to Ms. Booth.
• July 18, 1991 — Ms. Booth sent Mr. Bass letter acknowledging letter of representation and requesting medical authorization form and other standard matters.
• August 1, 1991 — Ms. Booth called Mr. Bass’s secretarial-assistant, Ms. Marino, requesting BI index information.
• August 20, 1992, Ms. Booth sent check to car dealership for $2,260.16 in property damage.
• August 21, 1991, Ms. Booth sent Mr. Bass a letter inquiring as to the status of his client’s treatment.
• August 27, 1991 — The car dealership called Ms. Booth regarding payment of supplemental property damage estimates.
• August 28, 1991 — Ms. Booth sent check to car dealership for $2,911.35 in property damage.
• September 4, 1991 — Mr. Bass sent Ms. Booth a letter regarding medical specials and a list of personal items (ie., damaged and/or lost items that flew from the back of the van totaling $1,146.88).
• September 10, 1991 — Ms. Booth sent check to car rental company for $1,898.99.
• October 18, 1991 — Ms. Booth called Ms. Marino regarding Mrs. Rosen’s treatment and was told that Mrs. Ro-sen was still treating and that other family matters are fine. Also she was told that no other personal articles that had fallen out in the accident had been found. Ms. Marino called Ms. Booth and informs her that Mr. Rosen wants to claim lost golf equipment and that she would send a demand in writing. Ms. Booth sent a check to Mr. and Mrs. Rosen for $1,146.88 in property damage, which was the total of lost personal items claimed to have fallen from the van. Mr. Bass sent Ms. Booth a letter demanding payment for Mr. Rosen’s lost golf equipment.
• October 21, 1991 — Ms. Booth sent a check to Ms. Rosen for $500 property damage, which was the total claimed for the golf equipment.
• October 29, 1991 — Ms. Booth called Ms. Marino and left a message to call back.
• December 12, 1991 — Mr. Bass sent Ms. Booth a letter with additional medical specials on Mrs. Rosen.
|fi* December 30, 1991 — Ms. Booth called either Ms. Marino or Mr. Bass and was advised that Mrs. Rosen was still treating and that there were more medicals to come.
• February 5, 1992 — Ms. Booth sent a letter to Mr. Bass asking him to advise her of his client’s progress.
• February 19, 1992 — Mr. Bass sent a letter to Ms. Booth providing additional medicals and a rental claim for Mrs. Rosen.
• March 18, 1992 — Ms. Booth sent a letter to Mr. Bass seeking additional medicals on Mrs. Rosen.
• March 20, 1992 — Ms. Booth sent a check to Mr. and Mrs. Rosen for $52 in property damages (for rental and parking expenses). Ms. Booth sent a letter to Mr. Bass forwarding the $52 check.
• May 18, 1992 — Ms. Booth sent a letter to Mr. Bass regarding the status of the case.
• May 27, 1992 — Mr. Bass sent a letter to Ms. Booth regarding additional medicals.
• July 7, 1992 — One year anniversary of accident.
• July 24, 1992 — Mr. Bass sent a letter to Ms. Booth regarding additional medicals.
• September 24, 1994 — Mr. Bass sent a letter to Ms. Booth regarding additional medicals.
• October 8, 1992 — Mr. Bass sent a letter to Ms. Booth regarding Mrs. Rosen’s finishing treatment and indicating the final narratives were on the way. Ms. Booth called Ms. Marino to discuss the case status, and Ms. Mari-no wanted to know policy limits, but Ms. Booth did not disclose them to her.
• October 15, 1992 — Ms. Booth sent Mr. Bass a letter regarding the one-year statute of limitations in Louisiana.
• October 19. 1992- — -The Rosens filed petition in Civil District Court.

Also as part of the discovery, the parties unsuccessfully attempted to locate Ms. Booth, the State Farm adjuster. At some point after handling the claim at issue Rand the commencement of discovery, Ms. Booth ceased employment with State Farm. Although State Farm in response to discovery interrogatories provided the Ro-sens with a last known address for Ms. Booth in California, neither the Rosens nor State Farm was able to locate her.

After an extensive discovery dispute and a period of inactivity, the exception of prescription was set for hearing on July 31, 1998. On August 18, 1998, the trial court denied State Farm’s prescription exception. In its reasons for judgment, the trial court analogized the facts of this case to those in Sotomayor v. Lewis, 95-2520 (La.App. 4 Cir. 4/24/96), 673 So.2d 1201. The trial court reasoned that in Sotomayor, supra, there was no evidence the insurer ever contested liability; rather, the entire tenor of the communications between the insurer’s adjuster and the plaintiffs attorney left the distinct impression that liability was never at issue. Likewise, the trial court held that “the communications between the defendants’ adjuster [Ms. Booth] and plaintiffs’ [the Rosens’] original counsel [Mr. Bass] left the distinct impression and in fact lulled the plaintiffs into believing that liability was not contested.”

On State Farm’s application, we granted writs, reversed the trial court and remanded. In so doing, we reasoned:

Plaintiffs have asserted in numerous memoranda that the State Farm adjuster orally acknowledged liability for all damages during phone conversations on October 18, 1991, March 20,1992, and on October 9, 1992. However, State Farm represents in its briefs that “these communications were [all] preliminary to settlement negotiations” and that “no evidence exists to indicate an acknowledgment [sic] which would interrupt prescription.” Because legal memoran-da do not constitute pleadings under La.Code Civ. Pro. art. 852, see Vallo v. Gayle Oil Co., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 865, 7 neither party has alleged or denied these crucial facts. Furthermore, there is no evidence in the record regarding the substance of the conversations at issue; the only material which might be relevant is a “List of Contracts” filed by State Farm in connection with a discovery motion. Thus, because the plaintiffs neither pleaded nor proved any facts which would establish a suspension or interruption of prescription, the petition has prescribed on its face and defendants’ exception must be maintained. Under La.Code Civ. Proc. art. 934, a judgment maintaining an exception of prescription shall include leave to amend if the grounds for the exception can be removed by amendment. Reeder v. North, 97-0239, p. 15 (La.10/21/97), 701 So.2d 1291, 1299; Chapital v. Guaranty Savings & Homestead Ass’n, 96-0244, pp. 4-6 (La.App. 4th Cir.10/2/96), 681 So.2d 1307, 1310, writ denied, 96-2639 (La.12/13/96), 692 So.2d 1068. In this case, as in Chapita!, plaintiffs have asserted facts which, if pleaded, and proved, would establish that their claims have not prescribed. Accordingly, the judgment overruling the exception of prescription is reversed, but the matter is remanded for the district court to allow a specified period of time in which plaintiffs may amend their petition.

On remand, the trial court allowed the Rosens thirty days to amend. In response, the Rosens timely amended their petition to add the following allegation:

[T]he actions of defendant, State Farm Mutual Automobile Insurance Company, including but in no way limited to, State Farm’s payment of over $8,000.00 in special damages incurred by plaintiffs as a result of this accident, as well as various communications, both written and oral, which occurred throughout the prescriptive period between State Farm, through its adjuster, and plaintiffs (both directly and through plaintiffs’ former counsel), during which said defendant through its adjuster specifically admitted that its insured was at fault in the subject accident, and stated that it would pay the claim, constitute an acknowledgment of liability and/or that said actions have otherwise lulled plaintiffs into believing that liability has not and will not be contested in this case; therefore, pursuant to the applicable law, including but not limited to, LSA-C.C. Art. 3464, and the applicable jurisprudence, prescription was interrupted in this case such that the lawsuit filed herein on October 19, 1992, although filed more than one year after the subject accident, is timely.

State Farm responded by filing another exception of prescription, asserting that “[n]o proof exists to substantiate plaintiffs’ allegations that liability was acknowledged and prescription interrupted.” State Farm argued that after six years Rand extensive discovery the Rosens were unable to provide any evidence that it acknowledged liability for the bodily injury claim. Opposing the exception, the Rosens argued that State Farm, through its adjuster, Ms. Booth, acknowledged liability on numerous occasions, and lulled them into believing that liability was not an issue. In support of this position, the Ro-sens relied on both the List of Contacts and affidavits it submitted of Mr. Bass and Ms. Marino. In those affidavits, Mr. Bass and Ms. Marino attested that Ms. Booth acknowledged State Farm’s liability for the accident. State Farm retorted that affidavits are not admissible on an exception of prescription.

On May 26, 1999, the trial court rendered judgment granting State Farm’s exception of prescription. From that judgment, the Rosens appealed. On September 14, 2000, this court, in an unpublished opinion, vacated the trial court’s decision sustaining the prescription exception and remanded for further proceedings. Rosen v. State Farm Mut. Auto. Ins. Co., 99-2986 (La.App. 4 Cir. 9/14/00), 771 So.2d 328 (table). In so doing, we first noted that we had “no criticism of the trial court’s decision and we understood fully the trial court’s decision to proceed to disposition of the prescription issue and to maintain the exception.” We further noted that the trial court apparently agreed with State Farm that the affidavits were inadmissible on an exception and thus that there was no evidence to support an acknowledgement. We still further reasoned that the trial court should have allowed the Rosens to introduce live or deposition testimony of Mr. Bass and Ms. Marino. In that regard, we noted that we were “reluctant to see what might be a meritorious assertion of interruption of prescription by acknowledgement lost simply because of an evidentia-ry/procedural misstep of the plaintiffs.” Finally, we rejected State Farm’s argument that such testimony would |Bhave been hearsay, reasoning that “Ms. Booth was an employee of State Farm and, as the adjuster handling the plaintiffs’ claim, any statements she made acknowledging liability of State Farm would have been made within the scope of her employment. Consequently, testimony [by Mr. Bass or Ms. Marino] that she made such statements would not be excludable as hearsay. La.Code Evid. art. 801.D.(3).”

On March 22, 2002, a hearing was held in the trial court at which the Rosens presented three live witnesses; to wit: Mr. Bass, Ms. Marino and Mrs. Rosen. All three witnesses testified regarding their conversations with Ms. Booth. All three witnesses testified that they believed State Farm was not disputing liability. In response to the trial court’s questions at the hearing regarding whether there was any written evidence of State Farm’s acknowledgment of liability, Mr. Bass and Ms. Marino both responded that there was none. Another point the trial court focused on at the hearing was the distinction between the two year statute of limitations for tort claims under Texas law and the one year prescriptive period for such claims under Louisiana law. Both Mr. Bass and Ms. Marino admitted they were unaware of that distinction. Given that this suit was not filed within the applicable Louisiana one-year prescriptive period and given that no acknowledgment was found, the trial court granted State Farm’s exception of prescription. This appeal followed.

J^DISCUSSION

The Louisiana Civil Code provides a one-year prescriptive period for delictual actions. La. C.C. art. 3492. Although the party pleading prescription ordinarily has the burden of proof, the burden is shifted to the plaintiff when the petition on its face reveals that prescription has run. Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). Such is the case here. On its face, the Rosens’ petition states that the accident occurred on July 7, 1991, yet this action was not commenced until October 10, 1992, over fifteen months later. The Rosens thus have the burden to establish that their claim was not prescribed.

The Rosens contend that State Farm’s payment of almost $8,000 in property damage ($6,941.44 to be exact) as well as its adjuster’s oral admissions of liability in conversations with Mr. Bass, Ms. Marino, and Mrs. Rosen were sufficient to constitute an acknowledgment of liability and thus to interrupt prescription. State Farm counters that there is no proof of an acknowledgment. In so far as the Rosens rely on its property damage payments, State Farm cites La. R.S. 22:661, which it contends makes those property damage payments irrelevant.

Acknowledgment is governed by La. C.C. art. 3464, which provides that “[prescription is interrupted when one acknowledges the right of the person against whom he has commenced to prescribe.” La. C.C. art. 3464. Acknowledgement interrupting prescription of a right may be oral or written, Informal or informal, and express or tacit. La. C.C. art. 3464, Revision Comments (e). Construing this article and reaffirming its prior holding in Flowers v. United States Fidelity & Guaranty Co., 381 So.2d 378 (La.1979), that a delictual obligation can be tacitly acknowledged, the Louisiana Supreme Court in Lima, supra, offered the following generalizations:

A tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments.

Lima, 595 So.2d at 634. Further, the court listed the following criteria the courts have added to the above generalizations: “undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contract with the creditor throughout the prescriptive period.” Id. Still further, the court noted that “mere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgment.” Id. Summarizing, the court defined an acknowledgment as “a simple admission of liability resulting in the interruption of prescription that has commenced to run, but not accrued, and may be made on an informal basis.” Id.

The Rosens first assignment of error is that the trial court erred when it ignored the uncontroverted testimony at the hearing of Mrs. Rosen, Mr. Bass, and Ms. Marino unequivocally establishing State Farm’s acknowledgment of liability sufficient to interrupt prescription.

Mr. Bass, who had been practicing law for thirty years, testified that the first thing he always does in handling a personal injury claim is to make a liability determination. He explained that whenever there is an objection or problem with | T pliability, he files suit immediately. In this case, he testified that “[f]rom day one on this ease I talked to this adjuster, and from day one she told me she was acknowledging and accepting liability, and we were unfortunately lulled for a period of time into believing that that’s exactly what was going on.” Continuing, Mr. Bass testified that liability in this case “was never an issue. It was only an issue of when we were going to have all of our medical so we could submit final demands.” He stated that this point was evidenced by Ms. Booth’s continual request that they furnish State Farm with all Mrs. Rosen’s medical expenses. He stated that he continually responded to this request that his client was still treating. Mr. Bass also testified that “from day one” Ms. Booth’s attitude was that “she was going to settle with me for ... something under the terms of the policy.” This attitude, he testified, continued even after the one-year anniversary, July 7, 1992.

Similar to Mr. Bass, his secretarial-assistant, Ms. Marino, testified that Ms. Booth continually acknowledged liability. Ms. Marino testified that Ms. Booth stated to her that State Farm accepted liability on the medical part of the case. She also stated that when she asked Ms. Booth for State Farm’s limits of liability, Ms. Booth called back the same day and told her that the limits were $100,000. In that same conversation, Ms. Booth asked her when the rest of Mrs. Rosen’s medical expenses would be in so that they could settle the case. Ms. Marino further testified that in another conversation, albeit at the time of the “property damage settlement,” that it was “her insured’s fault and that they were willing to pay for anything, you know, that was — that the Rosens lost.” In particular, Ms. Marino quoted Ms. Booth’s exact statement to be that “[wje’ve accepted liability on this | iaclaim.” Still further Ms. Marino testified that Ms. Booth told her “that they were liable, not to worry about anything, that it was all going to be taken care of. Just get her the specials on the medical, and as soon as we wrapped up her medical treatments, then she would settle with Mr. Bass.”

Mrs. Rosen testified that she too communicated with Ms. Booth. In particular, Mrs. Rosen testified that in March 1992 she discussed with Ms. Booth her personal injury claim. According to Mrs. Rosen, Ms. Booth was “very accommodating” and indicated that “[a]ny doctor I wanted to go to would be covered, any type of therapy I wanted to try.”

The Rosens characterize the above testimony as supporting a finding that State Farm, through its adjuster, continuously acknowledged liability from day one sufficient to interrupt prescription. In support, they cite in Sotomayor, supra, in which they contend this court found an acknowledgment under less compelling facts. Although the trial court in this case found this case analogous to Sotomayor, supra, the trial court did so before there was any testimony presented on the prescription exception. Although we remanded this case for the introduction of testimony, we noted that “[w]e do not imply that the trial court must accept the live or deposition testimony of Mr. Bass and/or Ms. Marino. As with all witnesses, the trial court must evaluate their credibility and weigh their testimony with any other evidence.” The trial court apparently found the testimony of the Rosens’ three witnesses regarding State Farm’s acknowl-edgement of liability for the bodily injury claim unpersuasive.

In resolving the dispute presented on appeal regarding the correctness of the trial court’s decision, we find the following statement by a commentator instructive:

| uThe claims handling process is often a lengthy one, especially when the insurer considers rejecting the claim. During this process, the insurer and insured or beneficiary are in frequent contact, and may exchange numerous letters. It is not difficult to imagine a variety of insurer actions and statements that may be subjectively construed by the claimant or the claimant’s counsel as an indication that the claim will be paid once the insurer has finished its investigation. When this occurs, but the insurer ultimately denies the claim, especially in a case that is governed by a very short ... limitation period, the result is often a lengthy judicial dispute in which the insured or other claimant vehemently argues that it has been misled by the insurer and should not be deprived of the right to have a judicial determination of the merits of its claim, and the insurer argues with equal vehemence that its perfectly ordinary claim evaluation process should not operate to deprive it of the protection of the limitation period.
* * *
... [Mjany of these cases do not lend themselves to easy determinations of which party is correct in its characterizations of the substance and intent of the insurer’s actions and statements during the claims handling process. The resolution of these cases depends in large part on the quality of the proof as to exactly what was said, by whom, to whom, and on what date.

Lee R. Russ and Thomas F. Segalla, Couch on Insurance 3D § 238:30 (2000).

The Rosens’ sole evidence to support their claim of an acknowledgement was the testimony of their three witnesses. Again, the trial court apparently did not find the testimony of the Rosens’ three witnesses established State Farm’s acknowledgment of liability. When, as here, testimony has been presented before the trial court on the peremptory exception of prescription, we review the trial court’s factual conclusions under the manifest error standard. Crain v. Pletka, 35,636, pp. 5-6 (La.App. 2 Cir. 1/23/02), 806 So.2d 950, 954.

The Rosens had the burden of establishing an acknowledgement. They contend that they were lulled into believing liability was not contested by State Farm’s adjuster’s, Ms. Booth’s, statements. State Farm counters that it simply engaged in its ordinary claim evaluation process. The trial court, as noted, agreed |1Bwith State Farm. We cannot say that the trial court’s finding was manifestly erroneous. Indeed, both Mr. Bass and Ms. Malino testified that Ms. Booth’s position was that she would be willing to discuss settling Mrs. Rosen’s personal injury claim when all the medical expenses were received. That position is simply a recognition of a disputed claim, not an admission of liability or an acknowledgment. See Crain, 35,636 at p. 6, 806 So.2d at 954 (collecting cases)(noting that when there is no admission of liability there is no acknowledgment); see also So-tomayor, 95-2520 at p. 7, 673 So.2d at 1205 (distinguishing an acknowledgement from a defendant recognizing the existence of a disputed claim.)

The Rosens’ second assignment of error is that the trial court erred when, despite the testimony that Ms. Booth acknowledged liability throughout and even after the prescriptive period, it nevertheless held that without written correspondence from State Farm acknowledging liability, the Rosens could not establish that State Farm acknowledged liability sufficient to interrupt prescription. We find this argument unpersuasive.

Although an acknowledgment generally can take any form and need not be in writing, the trial court’s reference to a writing, viewed in context, was simply an inquiry regarding whether there was any writing supporting the Rosens’ position. Given this case involved an attorney dealing with an adjuster, the trial court’s request that the Rosens produce some written evidence to corroborate their claim that State Farm admitted liability for the bodily injury claim was not clearly wrong. This is especially true given the trial court’s in camera review of State Farm’s entire claim file for this matter produced no evidence of any admission of liability for the claim. Likewise, State Farm’s List of Contacts contains no reference to an 11 (¡acknowledgement of liability. Although that list refers to various payments to the Rosens, those payments were all for property damages. We further note that this is not a case in which the plaintiffs were uneducated or unrepresented. Mr. Rosen himself was a Texas attorney, and the Rosens retained counsel early on to represent them.

Summarizing, we find the trial court was not manifestly erroneous in finding the testimony presented at the hearing did not support the Rosens’ position that there was an acknowledgment. Nor, as the trial court’s questions revealed, was there any writing supporting the Rosens’ position. Finally, as State Farm stresses, the “payment of property damages does not bear any weight on deciding whether prescription was interrupted.” Sotomayor, 95-2520 at p. 5, 673 So.2d at 1204. Although we acknowledge the well-settled principle that prescription should be strictly construed against the extinguishment of a claim, we nonetheless conclude that the Rosens failed to carry their burden of proving that prescription was interrupted by acknowledgement.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting the exception of prescription and remand for further proceedings consistent with this opinion.

AFFIRMED.

      . Mrs. Rosen is the only family member who allegedly sustained personal injuries as a re-suit of the accident.

      . Although the parties refer to the petition having been filed on October 19, 1992, the record reflects that the petition was stamped as filed on October 10, 1992.

      . The record reflects that State Farm insured the minor driver's mother, Adele Lejune, and that the driver-son was a permissive user of the vehicle. The driver's father apparently was not a State Farm insured and represented himself pro se in the trial court.

      . As noted elsewhere, the petition was actually stamped as filed on October 10, 1992.

      . Also introduced at the hearing were copies of the checks from State Farm for the properly damages as well as copies of various correspondence that accompanied those checks.

      . Although the trial court stated orally that the judgment was a final, appealable one, this court dismissed the Rosens' initial appeal from that judgment because the district court failed to designate its interlocutory judgment as a final, appealable judgment. Although the Louisiana Supreme Court denied the Rosens' writ application, Chief Justice Calogero noted in his concurrence from that writ denial that there is no time limit for seeking such a designation from the trial court and suggested that the Rosens file a second motion to designate the judgment as immediately appealable. Rosen v. State Farm Mut. Auto. Ins. Co., 2003-0284 (La.4/4/03), 845 So.2d 357 (Calogero, C.J., concurring in denial of writ). As suggested by Chief Justice Calogero, the Rosens obtained the necessary designation and perfected the instant appeal.

      . La. R.S. 22:661 provides:
      No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer's recognition of such liability, with respect to any other claim arising from the same accident or event.

      . Somewhat inconsistent with his secretarial-assistant's testimony, Mr. Bass testified that he was unaware of the amount of State Farm's policy limit.


author: liMAX N. TOBIAS, JR., Judge. 11 CANNIZZARO, J.,

text:
    David CAMERON v. DELTA PLUMBING.
    No. 2003 CA 0985.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2004.

      David E. Cameron, Picayune, MS, Plaintiff/Appellee, David E. Cameron, in Pro Se.
    L. Jay McCreary, John J. Erny, III, Metairie, LA, for Defendants/Appellants.
    (Court Composed of Judge James F. McKay, III, Judge Max N. Tobias, Jr., and Judge Leon A. Cannizzaro, Jr.).
   liMAX N. TOBIAS, JR., Judge.

This is a workers’ compensation case. After trial on the merits, the trial judge found that the claimant had sustained a work-related injury on 19 March 1999 in the course and scope of his employment for his employer and was entitled to recover temporary total disability benefits for an unspecified period of time commencing 19 March 1999; medical, medication, and transportation expenses commencing 19 March 1999; and penalties for the employer’s arbitrary and capricious actions. The trial court further ordered that a future hearing be at a later unspecified date conducted to determine the duration of the claimant’s disability.

The claimant, David Cameron (“Cameron”), was working for Delta Plumbing (“Delta”) on 19 March 1999 when he allegedly suffered a work-related accident. Specifically, Cameron claims that he injured his back when he fell picking up a jackhammer. At the time of the alleged accident, Cameron was working with the co-owner of Delta, Frank Schellange (“Schellange”), at a jobsite. Testimony established that Schellange did not actually see the incident, but was | ¡immediately made aware of it by Cameron. Cameron was seen in the emergency room of East Jefferson General Hospital that day, complaining of back pain. The emergency room personnel recommended bed rest of unspecified duration and that Cameron should follow-up with his treating physician.

Shortly thereafter, Cameron contacted the Delta office and informed Schellange’s son, the bookkeeper for Delta, that he would not be able to return to work for 10 to 14 days due to his injury. Cameron never returned to work with Delta and never filed an accident report with Delta. Cameron began treating with J. Monroe Laborde, M.D., for back pain on 23 March 1999. On 3 April 2000, a disputed workers’ compensation claim was filed. Cameron testified that he had not worked since the accident and had not been paid workers’ compensation benefits.

This matter proceeded to trial before a workers’ compensation judge, the Honorable Clara F. Toombs, on 10 July 2002. Before judgment could be rendered, Judge Toombs stepped down to run for political office and her successor, the Honorable Sylvia T. Steib, rendered judgment, without written or oral reasons, on 3 January 2003 after a review of the transcript and record.

The judgment awarded Cameron temporary total disability benefits of unspecified duration commencing 19 March 1999, payment of all medical, medication, and transportation expenses (of an unspecified amount) commencing 19 March 1999, and penalties in the amount of $2,000.00 for the employer’s arbitrary and capricious refusal to pay benefits. The court further ordered that a contradictory hearing be conducted at a later time to determine the duration of Cameron’s disability. The record on appeal does not reflect that the contradictory hearing has taken place. Nothing in the record indicates that the trial court would ^determine the quantum, if any, of any medical, medication, or transportation expenses at a later date.

Delta and its workers’ compensation insurer, Hartford Insurance Company, (hereinafter collectively referred to as the “appellants”), timely filed this devolutive appeal. The appellants assign as error the workers’ compensation judge’s finding that Cameron met the requisite burden of proof establishing his entitlement to compensation benefits.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 661, 556.

A claimant in a workers’ compensation proceeding has the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850, p. 3 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, 352. In order for a claimant to be entitled to recover workers’ compensation benefits, he or she must prove by a preponderance of the evidence that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

La. R.S. 23:1031(A) provides for the payment of compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. In determining whether a worker has shown by a preponderance of the evidence that an injury causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue |4of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Bruno, supra at 361.

In the present case, the appellants base their argument on the fact that the accident was un-witnessed and that Cameron never completed or executed an accident report. After a thorough review of the record, we see no error on the part of the trial court in finding that Cameron sustained a work-related injury in the course and scope of his employment for Delta.

It is clear from the trial testimony that although Schellange may not have seen Cameron fall, he was immediately made aware of the incident. Further, Schel-lange acknowledged that Cameron had to do lighter work for the rest of that day after the incident. Finally, the accident was corroborated by an emergency room report wherein Cameron reported that he injured his back on the job while using a jackhammer. When questioned about his failure to file an accident report, Cameron explained that he did not think it was necessary considering the fact that Schel-lange was with him when the accident happened and because he informed Schel-lange’s son that he was unable to return to work because of his injury.

La. R.S. 23:1221(l)(c) provides in pertinent part that:

... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physieally unable to engage in any employment or self-employment....

It is the workers’ compensation court’s function to determine the weight to be accorded medical and lay testimony in a workers’ compensation claim for an award of disability benefits, and its factual determination should not be disturbed on appellate review unless it is clearly wrong and the trial court has committed manifest error. Starkman v. Munholland United Methodist Church, 97-661, p. 151 (La.App. 5 Cir. 1/4/98), 707 So.2d 1277, 1284; see also, Stobart v. State, Department of Transportation & Development, 617 So.2d 880 (La.1993).

The appellants argue that Cameron did not submit competent medical evidence at trial to prove the injuries that he sustained. We agree. We do, however, find that the East Jefferson General Hospital 19 March 1999 record given to Cameron, when read in conjunction with Cameron’s testimony that he went to the hospital on the day of his alleged injury, is sufficient to establish the existence of an injury, but insufficient to establish anything further. That is, La. R.S. 23:1221(l)(c) requires an employee claiming injury to prove by “clear and convincing evidence, unaided by any presumption of disability” the nature of the injury sustained and his entitlement to disability benefits. Further, La. R.S. 23:1224 provides:

No compensation shall be paid for the first week after the injury is received; provided, that in cases where disability from injury continues for six weeks or longer after the accident, compensation for the first week shall be paid after the first six weeks have elapsed.

We conclude that the record before us does not establish by clear and convincing evidence that Cameron sustained a disability from the accident of 19 March 1999; the record only establishes that he suffered an injury of unknown severity.

The appellants point out that the medical reports from Cameron’s treating physician, Dr. Laborde, do not mention the existence of a work-related accident. Cameron testified that he informed Dr. Laborde of the work-related accident and could not explain why it was not contained in the doctor’s reports. The reason why this information was not contained in Dr. Laborde’s reports is unexplained in the record before us. Dr. Laborde’s deposition was not taken and he did not testify at trial.

1 ¿The appellants further maintain that no medical records were produced in connection with a subsequent back surgery that Cameron claimed was performed by Dr. Jeffery H. Oppenheimer on 29 November 2000. Cameron testified about his back surgery, but failed to introduce any corresponding medical records or evidence at trial that could relate it to the 19 March 1999 accident. The appellants also contend that Cameron failed to produce evidence from any medical professional stating that he was unable to return to work due to his injuries. We agree; the record is devoid of any competent evidence to establish that the back surgery was in any way related to the 19 March 1999 accident and/or that Cameron was unable to return to work due to his injuries of 19 March 1999. Appropriate medical evidence (e.g., certified medical records, depositions, health care professional’s testimony) is required.

As previously indicated, the determinations by the workers’ compensation judge as to whether Cameron’s testimony was credible and whether Cameron has discharged his burden of proving his work-related injury and disability resulting therefrom are factual determinations that will not be disturbed on review in the absence of manifest error. Considering the extremely limited medical evidence and lay testimony presented, we find that the workers’ compensation judge’s conclusion that Cameron sustained a 19 March 1999 work-related injury is reasonable; however, the conclusion that Cameron sustained a disability therefrom is not.

The original trial judge failed to reserve unto Cameron the right to establish at a later date the nature of the disability sustained in the 19 March 1999 accident [7and to establish the dollar amount of the medical, medication, and transportation expenses. Obviously, the subsequent trial judge read a cold, dry record; that record lacked evidence that permitted the judge from determining if a disability occurred or the length of the disability, if any (whether it be none, a few hours, a few days, several weeks, or several months) and the medical, medication, and transportation expenses through the date of the trial. Further, the record before us does not show whether the subsequent surgery was related to the 19 March 1999 accident.

We read the trial judge’s reservation of the right to determine the length of Cameron’s disability at a later date as de facto a granting by the judge of a new trial on the issue of whether a disability was sustained and other matters related to the disability, such as the length of disability and the medical, medication, and transportation expenses related thereto. La. C.C.P. art. 2164. Although it can be said that Cameron has had his day in court to determine the issues of whether he sustained a work-related injury, whether he was disabled from the accident, the amount of weekly disability benefits to which he was entitled, and the quantum of his medical, medication, and transportation expenses through the date of trial, we conclude that the trial judge who read the cold, dry record concluded that the record before her was inadequate to resolve the issues, save the issue of whether Cameron sustained a work-related injury. Again we note the absence in the record on appeal of competent medical evidence to establish by clear and convincing evidence a disability, the duration of Cameron’s disability from the |ssubject accident, and Cameron’s entitlement to any post-accident medical, medicine, or transportation expenses.

In the present case, the award of the $2,000.00 penalty by the trial court has neither been assigned as an error on appeal nor briefed by the appellants. Ordinarily, this court does not consider and is not required to consider an issue not raised. Rule 2-12.4, Uniform Rules, Cts. of App.; La. C.C.P. art. 2164; Georgia Gulf Corp. v. Board of Ethics for Public Employees, 96-1907, p. 6 (La.5/9/97), 694 So.2d 173, 176. As a matter of law, whether Cameron is entitled to a penalty is controlled by La. R.S. 23:1201. That statute envisions that the injured worker not only proves that he or she has sustained a work-related injury, but also incurred medical expenses related to the injury. The record before us indicates that Cameron did not receive a bill for his emergency room visit on the day of the accident; whether Cameron went to Dr. Laborde for the 19 March 1999 accident is unclear; i.e., Cameron says it was work-related, but Dr. Laborde’s notes do not indicate its being related to the 19 March 1999 accident at work. Because the record lacks clear and convincing evidence that Cameron sustained a disability as a result of the 19 March 1999 accident and the record is devoid of evidence whether “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employee or insurer receives written notice thereof,” we find that the trial judge was premature in assessing a penalty. We therefore vacate that part of the judgment relating to a penalty.

In conclusion, conflicting evidence was presented in this case on the issue of whether a work-related accident occurred and whether Cameron sustained a disabling injury for which he was entitled to disability benefits. The workers’ ^^compensation judge resolved the conflict respecting the work-related injury in favor of Cameron. Based on our review of the record, we cannot say that the trial court was clearly wrong in finding that Cameron proved his claim that he sustained a work-related injury on 19 March 1999 by a preponderance of the evidence. However, the trial court erred in finding that Cameron proved that he was disabled as a result of the work-related injury. However, we read the trial court’s judgment as the granting of a new trial on the issue of disability and the medical, medication, and transportation expenses related thereto. Accordingly, because of the extraordinary circumstances of this case as discussed above, we affirm the judgment in part as to the finding of a work-related injury, vacate the remainder of the judgment, and remand this matter to the trial court for a determination of whether Cameron sustained a disability from the subject accident, the length of the disability if in fact Cameron was disabled by the accident, the amounts of medical, medication, and transportation expenses related thereto, if any, and a penalty and attorney’s fees, if any is due a matter of law.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

MCKAY, J., CONCURS IN THE RESULT.

CANNIZZARO, J., CONCURS IN PART AND DISSENTS IN PART.

11 CANNIZZARO, J.,

concurs in part and dissents in part.

I agree with the majority insofar as they affirm the workers’ compensation judge’s determination that Mr. Cameron sustained an injury in a work-related accident. However, I dissent from the majority insofar they vacate the remainder of the judgment and remand the matter for a new trial on the issues of whether Mr. Cameron sustained a disability in the work-related accident; the length of the disability, if any; the amounts of medical, medication, and transportation expenses related thereto; and penalties and attorney’s fees, if any are due as a matter of law.

The majority concludes that the workers’ compensation judge’s reservation of the right to determine the length of Mr. Cameron’s disability at a later date is de facto a granting by the judge of a new trial on the issue of whether a disability was sustained and other matters related to the disability. It is clear in the judgment itself that the workers’ compensation judge found Mr. Cameron was disabled as a result of the work-related accident as she stated he was entitled to temporary total disability benefits; medical, medication, and transportation expenses; and a penalty of $2,000.00 for the employer’s arbitrary and capricious actions. Thus, the issue of whether Mr. Cameron sustained a disability was litigated and determined in the trial court.

Furthermore, the majority correctly concedes that Mr. Cameron had his day in court but failed to produce competent medical evidence to establish by clear and | ^convincing evidence that he sustained a disability as a result of the work-related accident. In other words, Mr. Cameron did not satisfy his burden of proof at trial to establish his entitlement to workers’ compensation benefits. To grant Mr. Cameron a new trial on the issue of whether the work-related injury resulted in a disability amounts to giving him a second bite at the apple. There is no legal basis for doing so in this case. The record reflects that two attorneys represented Mr. Cameron at some point, but both withdrew from the case. Rather than retaining a new attorney, Mr. Cameron chose to try the matter on his own. Although he was at a distinct disadvantage, lacking the knowledge, skill, and expertise of a licensed attorney, he should bear the consequences of his decision. Unlike the majority, I cannot say extraordinary circumstances warrant the granting of a new trial on the disability issue.

For these reasons, I would reverse the part of the workers’ compensation judgment that provides Mr. Cameron is entitled to recover temporary total disability benefits for an unspecified period of time; medical, medication, and transportation expenses; and penalties, and the part ordering a future hearing on the length of the disability. In all other respects, I would affirm the judgment.

      . The trial court did not determine the length of the claimant’s disability, the amount of weekly benefits to which the claimant was entitled, or the amount of medical, medication, and transportation expenses, if any, due the claimant.

      . At the time of his accident, Cameron was receiving social security disability payments.

      . Although Cameron attached to his brief to this court documents that he asserts support his claims; the documents were not introduced in the trial court and thus we cannot consider them on this appeal.

      . We note that during the course of the litigation Cameron was represented by two different lawyers, both of whom withdrew from representation. Cameron thereafter proceeded to represent himself.

      . La. R.S. 23:1201 E.