author: | .SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Brandon STEVENSON.
    No. 03-KA-1146.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Martin Bellanger, Assistant District Attorneys, 24th Judicial District Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and MARION F. EDWARDS.
   | .SOL GOTHARD, Judge.

In this criminal matter defendant, Brandon Stevenson, appeals his conviction and sentence on a charge of being a second felony offender. For reasons that follow, we affirm the conviction and sentence, and remand the matter.

After a conviction by a jury on a charge of armed robbery, defendant was charged by bill of information with being a multiple offender. After a hearing on the allegation, the trial court found defendant to be a second felony offender and sentenced him to 198 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence pursuant to La. R.S. 15:529.1. Defendant moved for and was granted a timely appeal.

In brief to this Court, defendant assigns two errors. In the first he argues that the evidence used against him in the hearing on the multiple bill was insufficient to support his adjudication - as a second felony offender. Specifically, defendant maintains that the State failed to produce any documentary evidence of a predicate conviction, and it failed to show that defendant was the individual who committed the predicate felony. Further, defendant asserts there is nothing in the record to show that the trial court specified which of the two alleged prior felonies it relied upon in its finding that he is a second felony offender.

IsiLa. R.S. 15:529.1(D)(b) provides that:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
(Emphasis added)

We note that defendant did not file a written response challenging the validity of prior guilty plea as provided by La. R.S. 15:529.1(D)(b), nor did he raise these issues at the habitual offender hearing. Therefore, defendant has not preserved these issues for review and is precluded from presenting them to this Court on appeal.

In the second assignment of error, defendant argues in the alternative that the trial court erred in failing to advise him of the delay for applying for post-conviction relief. We have reviewed the record and found that defendant’s assignment has merit. La.C.Cr.P. art. 930.8(C) provides that “at the time of sentencing, the trial judge shall inform the defendant of the prescriptive period for post conviction relief.” The transcript shows that defendant was not informed of the provisions of C.Cr.P. art. 930.8(C). Accordingly, the trial court is ordered to inform defendant of the provisions of article 930.8 by sending him written notice within ten days of the rendition of this opinion and to file proof of such notice in the record. The conviction and sentence are affirmed and the matter is remanded to the trial court.

AFFIRMED AND REMANDED WITH ORDER


source: Caselaw Access Project

author: LSOL GOTHARD, Judge.

license: Public Domain

text:
    Gail E. JACKSON v. WAL-MART STORES, INC.
    No. 03-CA-1054.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.

      Wade A. Langlois, Iii, David D. Kervin, Jr., Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for PlaintiffiAppellee.
    Catherine Orwig Hunter, Allen & Gooch, Boulevardmetairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   LSOL GOTHARD, Judge.

Defendant, Super Wal-Mart, appeals from a judgment of the workers’ compensation court in favor of plaintiff, Gail E. Jackson. For the reasons that follow, we affirm the decision of the trial court.

On June 19, 2001, Ms. Jackson filed this disputed claim for workers’ compensation. In her claim she alleged that she was injured in a work related accident on May 3, 2001. She stated that she was removing boxes from a pallet when one came down and struck her on the neck and side of her face, breaking her glasses. She sought wage and medical benefits, and authorization for treatment by a physician of her choice.

After trial on the merits, on June 18, 2003, the workers’ compensation judge rendered judgment in favor of plaintiff, finding that plaintiff was injured in the course and scope of her employment, and that she met the requisite burden of proof to establish a causal connexity between the accident and her injuries. The court further found that plaintiff was entitled to temporary total disability benefits from the date of the accident to November 11, 2002, and to payment of all medical, medication and transportation expenses. The court also found that defendant was |3arbitrary and capricious in its failure to pay medical expenses and in failing to authorize claimant’s physician of choice. Defendant was ordered to pay penalties of $2,000.00 and attorney fees of $3,000.00.

Wal-Mart filed a motion for appeal on June 30, 2003. Plaintiff filed an answer with this court on September 11, 2003.

The parties stipulated that Ms. Jackson was employed by Wal-Mart on May 3, 2001, and that she was involved in an accident on that date. The parties further stipulated that claimant’s average weekly wage was $291.20, and that no weekly compensation benefits had been paid.

At trial, Ms. Jackson testified that she was employed as a night stocker at the Wal-Mart in Harvey, Louisiana. Her hours were 10:00 p.m. to 7:00 a.m. On the night of May 3, 2001, she went to work. At approximately 6:30 a.m., a manager came and told her she needed something on the bottom of a pallet. Ms. Jackson was taking down boxes to get to the bottom ones when several of the boxes started to fall. She raised her left arm; however, one of the boxes hit her, breaking her glasses. At that time, she reported to the night manager; however, no report was filed. She took some glasses off the shelf to wear until she could get hers replaced. She began experiencing headaches. She worked for a few days after that, and then began having pain in her shoulder and neck, and she was unable to move her neck. Several days later, she called to find out about replacement glasses and discovered that no report had been filed. She filled out a report at that time.

Because she kept experiencing pain, she requested that she be able to see a doctor. The claims office stated that her glasses would be taken care of, but she was not authorized to see a doctor. A couple of weeks later, on June 5, 2001, Ms. Jackson went to Charity Hospital. At that point, she had terrible pains and muscle spasms in her neck. At trial she testified that the muscle spasms were still occurring.

|4The records of Charity Hospital reflect that on her first visit, claimant related symptoms of headache, neck pain and spasms, and that the headaches were slowly getting worse. X-rays taken were unremarkable. Claimant was diagnosed as having neck sprain/spasm, and cephalgia. Claimant was seen at Charity several times. Physical therapy was prescribed, but was discontinued because she was experiencing pain.

Claimant’s visit of November 1, 2001 reflects that she related continued shoulder pain. The doctor’s examination showed full range of motion of the shoulder, nonspecific tenderness and some crep-itus, and normal right shoulder radio-graphs. An MRI (Magnetic Resonance Imaging) was recommended.

An MRI of the shoulder was conducted on November 21, 2001. The results revealed tendonitis, a partial tear, and hy-pertropic changes at the left acromioclavi-cular joint. After viewing the MRI, claimant’s physician diagnosed left shoulder impingement syndrome with partial rotator cuff tear. Surgery was recommended; however, it had not been performed as of the date of trial.

On July 3, 2002, claimant was seen by Dr. Chris Digrado, an orthopedic surgeon. He diagnosed AC joint inflammation, and noted that the MRI report reflected a partial tear of the rotator cuff. He prescribed medications, and recommended shoulder arthroscopy. Dr. Digrado opined that the rotator cuff tear was a preexisting condition that was exacerbated by the accident. Claimant requested that she continue treatment with Dr. Digrado; however, defendant refused to authorize treatment.

On November 11, 2002, at the request of defendant, claimant was examined by Dr. Joe Morgan, an orthopedic surgeon. He found a Type 2 acromion with impingement syndrome, which he stated was a chronic degenerative condition not caused by the injury. Dr. Morgan would release claimant to work with no restrictions.

15Claimant testified that she had stopped working at Wal-Mart and has not been able to work anywhere else because of the severe pain in her left shoulder and behind her ear. Prior to the accident, she was healthy and able to perform her job.

In its first allegation of error, Wal-Mart alleges that the workers’ compensation judge erred in ruling that claimant proved causal eonnexity between the accident and her injuries. In its second allegation, Wal-Mart alleges that the court erred in ruling that temporary, total disability benefits are owed from May 3, 2001 through November 11, 2002. In its third allegation of error, Wal-Mart alleges that the court erred in ruling that the claimant was entitled to payment of all medical expenses and transportation expenses. In its fourth assignment of error, Wal-Mart alleges that the workers’ compensation court was in error in finding that it was arbitrary and capricious in refusing to pay medical expenses and in refusing to authorize claimant’s choice of physician. In its fifth assignment of error, Wal-Mart alleges that the court erred in awarding $2,000.00 in penalties and $3,000.00 in attorney fees.

In her answer, claimant alleges that the workers’ compensation judge erred in limiting her temporary, total benefits through November 11, 2002. She alleges that she is entitled to ongoing benefits until she is able to obtain medical treatment and return to work. Claimant also alleges she is entitled to two penalties of $2,000.00 each for defendant’s failure to pay compensation and medical benefits, and that she is entitled to additional attorney’s fees for the work done on this appeal.

The manifest error standard of review applies to factual findings in a workers’ compensation case. In applying the manifest error-clearly wrong standard, we must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though we may feel that its own evaluations and inferences are as reasonable. Thus, where there are two permissible views of the evidence, a factfinder’s choice of them can never be | (¡manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record, we may not reverse or modify the judgment. (Citations omitted.)

Hookfin v. Advantage Nursing Services, Inc., 03-340 (La.App. 5 Cir. 10/15/03), 860 So.2d 57, 59.

The manifest error standard of appellate review applies in compensation ac-. tions even when the evidence before the trier of fact consists solely of written reports, records, and depositions. Fite v. Louisiana Title Co., 2002-2607 (La.6/27/03), 852 So.2d 983, 985.

The worker bears the burden of proving personal injury by accident by a preponderance of the evidence. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135.

The claimant’s testimony may suffice to meet the burden, provided there is no other evidence sufficient to discredit or cast doubt upon the claimant’s version of the incident, and his testimony is corroborated by circumstances following the accident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends; corroboration may also be provided by medical evidence. The claimant does not necessarily have to establish the exact cause of the disability, but he must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. (Citations omitted.)

Sears v. Berg, Inc., 99-457 (La.App. 5 Cir. 9/28/99), 742 So.2d 760, 764.

Wal-Mart, in its first allegation of error, alleges that the trial court erred in finding a causal connexity between the accident of May 3, 2001 and the injuries to her neck, back and shoulders. In its third allegation of error, it argues that the claimant’s shoulder, neck and back injury is not related to the accident, and therefore the workers’ compensation court erred in awarding payment of all medical bills, expenses, medication expenses and transportation expenses incurred.

Wal-Mart argues that she was not timely in reporting the injury to her shoulder, as the accident reports she prepared after the accident failed to state any such injury. However, “Delay in giving notice of injury shall not be a bar to |7recovery if it is shown that the employer has not been prejudiced by such a delay.” Buxton v. Sunland Const., 34,995 (La.App. 2 Cir. 8/22/01), 793 So.2d 526, 531. In this ease, the accident itself was reported in a timely manner. Furthermore, claimant stated that she told a Wal-Mart representative of the shoulder injury. Finally, Wal-Mart has not alleged any prejudice in claimant’s failure to indicate that her shoulder was injured on the accident report.

In Louisiana it is well settled that an employee’s disability is compensable if a pre-existing condition or disease is activated or precipitated into a disability manifestation as a result of work:
A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it.

Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166, 167-8.

In the case before us, claimant testified that she was healthy and able to perform her job duties prior to the accident. Dr. Digrado opined that claimant had a preexisting condition that was made symptomatic by the accident. While Dr. Morgan’s report states that claimant’s shoulder condition pre-existed prior to the accident, he offers no opinion on whether or not the accident exacerbated this condition.

We find that the workers’ compensation court did not err in finding a work related injury, and in awarding the medical bills, expenses, medication expenses and transportation expenses incurred in her treatment.

In its second allegation of error, Wal-Mart alleges that the workers’ compensation court erred in its finding of temporary total disability from May 3, |s2001 through November 11, 2002. In her answer, claimant alleges that the trial court erred in limiting temporary, total benefits.

A claimant seeking temporary or permanent disability benefits must offer clear and convincing evidence that he is unable to engage in any type of employment. La. R.S. 23:1221(1). In order to meet this clear and convincing standard, the claimant must introduce objective medical evidence. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613. Whether a claimant is entitled to'temporary' total disability benefits is a question of fact that may not be disturbed on appeal absent manifest error. The trial judge’s determinations may not be reversed if they are reasonable in view of the record in its entirety. Sears v. Berg, Inc., supra at 766.

In this case, the workers’ compensation judge awarded wage benefits, which she characterized as temporary, total disability benefits, from the date of the accident through November 11, 2002. Our review of the record finds no manifest error in the judge’s determination that claimant was entitled to wage benefits. Claimant testified that she was injured as a result of the work related accident, and that she was unable to return to employment because of her substantial pain. The medical records of Charity Hospital, as well as the report of Dr. Digrado, support claimant’s testimony.

In her answer, claimant alleges that the workers’ compensation judge erred in terminating temporary, total disability benefits as of November 11, 2002. She suggests that she is entitled to benefits until she is able to obtain treatment and her condition has resolved itself. La. R.S. 23:1221(1)(d) provides that:

An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical | cicondition has improved to the point that continued, regular treatment by a physician is not required.

In his report, Dr. Digrado stated that he recommended arthroscopy, and that thereafter, the claimant should “be able to return to full activity level with no permanent partial disability ... assuming that the findings at arthroscopy match the MRI findings.” As is evident by Dr. Digrado’s report, and considering that claimant had not had surgery at the time of the hearing in this matter, claimant’s physical condition had not yet resolved itself to the point that a reasonable determination of the extent of her disability could be made, nor had she improved to the point that continued, regular treatment by a physician was no longer required. We find that the trial court erred in concluding that claimant was not entitled to temporary total disability after November 11, 2002.

In its fourth allegation of error, Wal-Mart alleges that the workers’ compensation judge erred in finding that it was arbitrary and capricious in its failure to pay medical expenses. In its fifth allegation of error, it alleges that it should not be required to pay $2,000.00 in penalties and $3,000.00 in attorney fees. In her answer, claimant alleges that she is entitled to two penalties of $2,000.00 each, one for Wal-Mart’s denial of her medical benefits and one for its failure to pay any earning benefits.

Penalties and attorney fees are recoverable under LSA-R.S. 23:1201(F) if the employer or insurer fails to commence payments of benefits timely or to pay continued installments or medical benefits timely, unless the claim is reasonably controverted. The statutes providing for imposition of penalties and attorney fees are to discourage indifference and undesirable conduct by employers and insurers, and are essentially penal in nature. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Cooper v. St. Tammany Parish School Bd., 2002-2433 (La.App. 1 Cir. 11/7/03), 862 So.2d 1001. Whether the workers’ compensation judge finds that an employer reasonably controverts a claim for benefits is a question of fact. Sterling v. Asplundh Tree Expert Co., 2003-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125. The crucial inquiry is whether the employer had an articu-lable and objective reason to deny benefits at the time it took action. McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135. The decision to award penalties and attorney fees is a factual one, and will not be reversed on appeal absent a finding of manifest error. Stelly v. Health South Rehabilitation, 2003-171 (La.App. 3 Cir. 7/2/2003), 854 So.2d 960.

Wal-Mart alleges that the workers’ compensation judge erred in its finding that it was arbitrary and capricious in its refusal to pay medical fees, and to authorize claimant’s physician of choice.

A failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment. Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181, 1187. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Brown v. Texas-LA Cartage, 98-1063 (La.12/1/98), 721 So.2d 885, 890. In this case, Wal-Mart denied claimant’s request for treatment and for authorization of a physician of her choice without investigation of the underlying claim. We cannot say that the workers’ compensation judge was manifestly erroneous in granting penalties and attorney fees in this case.

In her answer, claimant alleges that the workers’ compensation judge erred in failing to award a second penalty of $2,000.00 for defendant’s failure to pay wage benefits. Pursuant to La. R.S. 23:1201(F), an employee is entitled to an award of both penalties and attorney’s fees if the employer fails to commence Inpayments of benefits timely or to pay continued installments timely, unless the claim is reasonably controverted. Begue v. Crossover, Inc., 2003-0267 (La.App. 1 Cir. 11/21/03), 868 So.2d 100. In this case, the employer refused to pay wage benefits prior to any investigation of the employee’s claim. Accordingly, we find that the workers’ compensation judge was manifestly erroneous in failing to assess a second penalty for failure to pay wage benefits.

Finally, claimant in her answer requests that she be awarded attorney fees for the defense of this appeal. When the defendant in a workers’ compensation case appeals and obtains no relief, and when the appeal has necessitated additional work on the part of plaintiffs counsel, the appellate court usually awards an increase in attorney fees, provided that the plaintiff has requested the increase in accordance with proper appellate procedure. Parker v. ADM Milling Co., 01-649 (La.App. 5 Cir. 11/27/01), 804 So.2d 120. We find that an additional award of attorney fees in the amount of $1,500.00 is warranted in the present case.

For the above discussed reasons, the judgment of the workers’ compensation court is amended to award temporary, total disability benefits until she is able to obtain medical treatment and return to work. The judgment is further amended to award an additional penalty award, for a final award of $4,000.00 in penalties, and to award additional attorney fees for this appeal. In all other respects, the decision of the workers’ compensation court is affirmed.

AMENDED AND AFFIRMED.


author: I, JAMES F. McKAY, III, Judge. LARMSTRONG, C.J., hLANDRIEU, Judge Pro Tempore,

text:
    Ginger BAILEY, et al. v. Dr. Gregory KHOURY, et al. Ginger Bailey, et al. v. Dr. Gregory Khoury, et al.
    Nos. 2002-C-0049, 2002-C-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2004.

      Martin L. Broussard, Jr., Kevin K. Gip-son, Broussard and Associates, New Orleans, LA, for Plaintiffs.
    Deborah I. Schroeder, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, LA, for Defendant, Dr. Robert Ancira.
    Edward J. Rice, Jr., Arthur F. Hickham, Jr., Adams and Reese L.L.P., New Orleans, LA, for Defendant, Dr. Gregory Khoury.
    Jack E. Truitt, Nancy N. Butcher, The Truitt Law Firm L.L.C., Madisonville, LA, for Defendant, Walgreen Louisiana Co., Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge MOON LANDRIEU Pro Tempore).
   (ON REMAND FROM THE SUPREME COURT)

I, JAMES F. McKAY, III, Judge.

In August of 1997, Ginger Bailey learned that she was pregnant. A nurse at the New Orleans Mental Health Center advised Ms. Bailey to discontinue all medications and to contact her obstetrician. On September 25, 1997, Dr. Grundmeyer, an obstetrician, confirmed that Ms. Bailey was pregnant and advised her that her unborn child would likely have birth defects. An ultrasound on October 28, 1997 confirmed his opinion that the unborn child had birth defects. Later in Ms. Bailey’s pregnancy, Dr. Khoury ordered her to resume taking the Depakote drug. On March 20,1998, Jada Bailey was born with spina bifida. Jada received medical treatment from Dr. Thomas at Children’s Hospital of New Orleans, who informed Ms. Bailey that Jada’s condition had been caused by her use of the drug Depakote during her pregnancy. Ms. Bailey filed her medical malpractice.claims, individually and on behalf of her minor child, Jada Nacaya Bailey, on March 16,1999.

Several defendants, Dr. Gregory Khoury, Dr. Robert Ancira, and Walgreen Louisiana Co., Inc., in these medical malpractice cases filed exceptions of ^prescription, which the trial courts denied. These defendants then applied to this Court for supervisory writs. Two of the three judges on the panel agreed with the defendants’ position while one judge dissented. However, this Court failed to direct that the case be reargued before a five-judge panel as required by La. Const. Art V, § 8(B). The Supreme Court then vacated and set aside the judgment of this Court, and remanded the case for reargument before a five-judge panel.

The issue before this Court is whether the trial courts erred in denying the defendants’, Dr. Gregory Khoury, Dr. Robert Ancira and Walgreen Louisiana Co., Inc., exceptions of prescription.

When does prescription begin to run in an action brought by or on behalf of a plaintiff seeking recovery for prenatal injuries? Is it from the moment that the injurious conduct occurs, the moment the parent has knowledge of the potential damages, or is it from moment of the child’s subsequent birth? If we look to Louisiana Civil Code Article 26, the answer appears to be from the moment of the child’s birth. If the child had not been born alive, procedurally it would have been considered never to have existed. However, the child’s parents would be able to bring an action arising from the child’s wrongful death.

According to Louisiana law, there are two kinds of persons: natural and juridical. See La. Civ.Code art. 24. “Natural personality commences from the moment of live birth and terminates at death.” La. Civ.Code art. 25. “All natural persons enjoy general legal capacity to have rights and duties.” La. Civ.Code art. | a27. Louisiana Civil Code Article 26 goes on to say: “An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.” Furthermore, “our jurisprudence has recognized that the fetus can acquire a cause of action in útero contemporaneous with its tortious injury. However, the cause of action can be pursued only if the fetus is subsequently born alive.” Wartelle v. Women’s and Children’s Hospital, Inc., 97-0744 (La.12/2/97), 704 So.2d 778.

Jada Nacaya Bailey is a natural person. Therefore, she enjoys the general legal capacity to have rights and duties. Although Jada has been considered a natural person from the moment of her conception and was able to acquire a cause of action while she was in útero, she would not be able to pursue this action until she was born. Logic, therefore, dictates that any cause of action that may be brought on her behalf for injuries she suffered in útero would not prescribe until one year from the date of her birth.

For the above and foregoing reasons, these writs are denied and the trial courts’ judgments are affirmed.

WRITS DENIED; JUDGMENTS AFFIRMED

ARMSTRONG, C.J., Dissents.

LANDRIEU, Judge Pro Tempore, Concurs with Reasons.

LARMSTRONG, C.J.,

Dissents.

I respectfully dissent.

It appears to be indisputable, based upon the deposition of Ginger Bailey, that no later than October 28, 1997, she had “sufficient information to excite [her] attention and prompt further inquiry into a possible medical malpractice action”. In re Medical Review Panel For the Claim of Derek Dede, 98-2248 (La.App. 4 Cir. 12/02/98), 729 So.2d 603, 608, unit denied, 99-0531 (La.4/9/99), 740 So.2d 634. In determining when prescription begins to run on a medical malpractice claim of a minor child, the knowledge of the parent is determinative. See Dede, supra. The Supreme Court has held that a parent may bring an action on behalf of a child before the birth of a child. Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982). Thus, as of October 28, 1997, Ginger Bailey had both the knowledge sufficient to start prescription running and the legal ability to file suit on behalf of her then-unborn child.

The Civil Code provides: “All natural persons enjoy general legal capacity to have rights and duties.” La. Civ.Code art. 27 (emphasis added). “An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.” La. Civ.Code art. 26 (emphasis added). “Prescription runs | {.against all persons unless exception is established by legislation.” La. Civil Code art. 3467 (emphasis added). “Prescription runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation.” La. Civ.Code art. 3468 (emphasis added). Thus, Ginger Bailey’s unborn child had the right to bring suit (through her mother), see Cushing v. Time Saver Stores, Inc., 552 So.2d 730, 732 (La.App. 1st Cir.1989), and prescription began to run as to that right, as of October 28, 1997.

The second sentence of Article 26 applies only to children “born dead” and so is inapplicable to the present case. In contrast, in Wartelle v. Women’s and Children’s Hospital, Inc., 97-0744 (La.12/2/97), 704 So.2d 778, 780-81, the child was born dead, so the second sentence of Article 26 was applicable. The Wartelle court did not hold that an action on behalf of an unborn child cannot be brought until the child is born. Such a holding would have directly contradicted Malek and, in any case, the issue was not present in Wartelle.

Lastly, if Ginger Bailey had filed suit on behalf of her unborn child prior to the child’s birth, and then the child had been born dead, the action would simply have been dismissed (except for a possible wrongful death action). Also, of course, there will always be less than one year between a prenatal injury and the birth of the child, so there will always be an opportunity to bring suit after birth but before prescription runs.

hLANDRIEU, Judge Pro Tempore,

Concurs with Reasons.

Article 26 of the Louisiana Civil Code provides that an unborn child shall be considered a natural person for whatever relates to its interests from the moment of conception. It was clearly enacted to protect unborn children and not to disadvantage them.

La. C.C. art. 25 states that natural personality commences from the moment of live birth. Hence, it would appear that it is at that moment that minority begins, and it is at 18 years of age that it ends.

La. C.C. art. 3468 emphasizes that prescription runs even against minors except where there is legislative exception, but it does not mention unborn children. There are various exceptions to prescription in the case of minors. See C.C. arts. 3492 and 3496.1. However, there are no exceptions provided for unborn children unless an unborn child is considered to be a minor. That, of course, would require a strained and uncommon use of the term.

It seems quite clear that the legislature did not consider the unborn child when it addressed prescription or the exceptions to it.

Article 4 of the Civil Code states: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according | ¿to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”

To interpret these articles contrary to the interest of the unborn child does immense damage to the child. To interpret them contrary to the interest of the defendant does not in any way prejudice their ability to defend their claims.

Equity argues persuasively in favor of permitting the child to sue within one year from the date of birth.

      . The date of birth argument was implicitly recognized by the defendants when they filed not only an exception of prescription but also an exception of lack of procedural capacity.


author: JjMICHAEL E. KIRBY, Judge. hBAGNERIS, J.,

text:
    Natashia J. WATSON v. Wilson D. BULLOCH, III, Louisiana Department of Public Safety and Corrections, Office of State Police and Louisiana Automobile Liability Self Insurance Fund.
    No. 2002-CA-2144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2004.

      Robert M. Johnston, Law Offices of Robert M. Johnston, L.L.C., New Orleans, LA, and Stephen J. Hornyak, Gretna, LA, Counsel for PlaintiffiAppellee.
    Richard P. Ieyoub, Attorney General, M. Chadwick Pellerin, Assistant Attorney General, New Orleans, LA, Counsel for Defendants/Appellants, Wilson Bullock, III and State of Louisiana, Office of State Police.
    Charles L. Rice, Jr., City Attorney, John E. Smith, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, New Orleans, LA, Counsel for Defendant/Appellant, The City of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge Pro Tempore MOON LANDRIEU).
   JjMICHAEL E. KIRBY, Judge.

Defendants, the City of New Orleans (“City”), Louisiana State Trooper Wilson Bulloch, III (“Trooper Bulloch”) and the State of Louisiana, through the Department of Public Safety and Corrections and Office of State Police (“State”), appeal the trial court judgment in favor of plaintiff, Natashia J. Watson. We reverse and remand for a new trial.

The following facts are undisputed: On January 22, 1997, Trooper Bulloch and Officer Darryl Coulon of the New Orleans Police Department were on patrol in New Orleans in Trooper Bulloch’s police vehicle. Trooper Bulloch was driving, and Officer Coulon was riding in the front passenger seat. Trooper Bulloch was part of a contingent of State troopers assigned to work with the New Orleans Police Department to provide additional protection in connection with the 1997 Super Bowl. At approximately 8:50 a.m., Trooper Bulloch and Officer Coulon were responding to a call of a burglary in progress on North Rampart Street.

The officers were headed toward the French Quarter on South Rampart Street with lights and sirens activated. As they approached the intersection of South Rampart Street and Canal Street, their vehicle was faced with a red light. All three lanes of traffic on the riverbound side of Canal Street yielded to the |?police vehicle, and Trooper Bulloch safely crossed the river-bound lanes of Canal Street and entered the median. In the median right before the intersection of Rampart Street and the lakebound lanes of Canal Street, a bus headed in a lakebound direction was stopped at a bus stop. As Trooper Bulloch left the median and attempted to cross the lakebound lanes of Canal Street, plaintiffs vehicle that was traveling in the far left lakebound lane of Canal Street struck Trooper Bulloch’s vehicle.

Trooper Bulloch’s actions from the time he entered the Canal Street median until he attempted to cross the lakebound lanes of Canal Street are in dispute. There was conflicting testimony at trial as to whether or not Trooper Bulloch stopped or slowed down in the median before attempting to cross Canal Street.

Trooper Bulloch testified that he stopped, looked to see if there were any oncoming vehicles in the lakebound lanes of Canal Street and then proceeded to “ease” or make a “rolling stop” into the intersection at approximately 5 m.p.h. after seeing no oncoming cars. Officer Coul-on testified by deposition that Trooper Bulloch “slowed down a lot” before attempting to cross lakebound Canal Street. He also checked the traffic to the right and saw no oncoming vehicles. Trooper Bul-loch and Officer Coulon admitted that a stopped bus in the median partially obscured their vision of the lakebound lanes of Canal Street. Yolanda Bryson, an eyewitness, testified that Trooper Bulloch’s vehicle “paused” in the median before attempting to cross Canal Street. Richard Turner, the defendants’ expert in accident reconstruction and emergency vehicle policies and procedures, estimated that Trooper Bulloch was traveling approximately 5 m.p.h. prior to the collision. Mr. Turner testified that under Louisiana standards attributable to emergency vehicles, Trooper Bulloch was permitted to use a “rolling stop” under the 13circumstances. Sergeant Wayne Winkler, the investigating officer, stated that he interviewed witnesses and examined damage to the vehicles and found no physical evidence inconsistent with Trooper Bulloch’s contention that he was traveling approximately 5 m.p.h. when the collision occurred.

Eyewitness Cleasthá Williams testified that Trooper Bulloch did not slow down once he entered the median, and was driving as though he were on “a police chase.” John Rigol, the plaintiffs expert in accident reconstruction, estimated that Trooper Bulloch was traveling at 17 m.p.h. prior to the collision and his opinion is that Trooper Bulloch did not stop or slow down once he entered the median. His opinion is that Trooper Bulloch’s driving strategy was “grossly at fault” in entering the intersection of Rampart Street and the lake-bound lanes of Canal Street. Plaintiff did not see the police vehicle prior to the collision.

Plaintiff filed suit against Trooper Bul-loch, the State and its insurer and the City. The State filed a third party demand against the City. Plaintiffs claims against Bulloch, the State and its insurer were tried before a jury, but the plaintiffs claim against the City and the State’s third party demand against the City were tried by the court.

Following trial, the jury rendered a verdict in favor of plaintiff and against Trooper Bulloch, the State and the Louisiana Automobile Liability Self-Insurance Fund in the amount of $949,926.00. On February 6, 2002, the trial court rendered judgment in favor of plaintiff and against those defendants in the amount of $677,126.00 because of the limitations set forth in La. R.S. 13:5106, which limits the total amount recoverable in a suit against the State or any state agency or | ¿political subdivision to $500,000.00, exclusive of medical care costs ($33,676.00), past loss of earnings ($14,650.00) and future loss of earnings ($128,800.00). The court also ordered the establishment of a reversionary trust for the benefit of plaintiff, because of the fact that the jury awarded plaintiff $128,800.00 for future medical expenses. In a judgment rendered on February 7, 2002, the trial court ordered that the City be held solidarily liable with the other defendants due to the court’s finding that the State and the City were the dual employers of Trooper Bulloch on the date in question and are solidarily liable for his negligence based on a theory of vicarious liability. The trial court dismissed the State’s third party demand against the City.

On May 1, 2002, the court denied the motion for new trial and motion for judgment notwithstanding the verdict filed by Trooper Bulloch and the State. However, the court granted those defendants’ motion for remittur in part, reducing the plaintiffs award for future medical expenses to $35,000.00 and denying any recovery for future loss of income. Defendants Trooper Bulloch, the State and the City now appeal. The Louisiana Automobile Liability Self-Insurance Fund did not appeal.

La. R.S. 32:24 is the statute that sets forth the standard of care owed by the driver of any authorized emergency vehicle, and states as follows:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.

B. The driver of an authorized emergency vehicle may:

| B(l) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D.The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

In its first assignment of error, the State argues that the trial court misapplied the standard of law to the jury. Specifically, the State argues that the trial court committed reversible error in failing to include in the jury instructions an explanation of the “gross negligence” standard of care applicable to drivers of emergency vehicles under certain circumstances. Shortly after the trial in this matter, the Louisiana Supreme Court handed down its decision in Lenard v. Dilley, 2001-1522 (La.1/15/02), 805 So.2d 175. In that case, the Court interpreted R.S. 32:24 as containing two alternate standards of care imposed on the driver of an emergency vehicle, depending on the circumstances: if subsections A, B and C of that statute are met, the driver will be held liable only for actions that constitute | (¡gross negligence or reckless disregard for the safety of others; if the driver’s conduct does not meet the requirements of subsections A, B and C, the driver’s actions will be gauged by an ordinary negligence standard. Id. at p. 1, 805 So.2d at 177.

In the Lenard case, our Supreme Court explained the two alternate standards of care for an emergency vehicle driver under La. R.S. 32:24 as follows:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the ease. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C of La.Rev. Stat. 32:24, will an emergency vehicle driver be held hable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by a standard of “due care.”
“Due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Gross negligence has been defined by this court as “the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). “Reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver’s actions fit La.Rev.Stat. 32:24(A) through La. Rev.Stat. 32:24(C). Otherwise, the standard is ordinary negligence.

Id. at pp. 6-7, 805 So.2d at 180.

This case is unique in that the jury instructions given by the trial court, which included a recitation of La. R.S. 32:24, were not erroneous at the time they were given. However, the Supreme Court’s subsequent interpretation of La. R.S. 32:24 in Lenard v. Dilley, supra, just days after trial in this matter was concluded ^nonetheless renders the jury instructions given by the trial court inadequate for purposes of explaining to the jury the standard of care owed by a driver of an emergency vehicle. Because the Lenard case did not create new law but merely interpreted an existing statute, the principles enunciated in that case are to be applied retroactively. See, Tugwell v. State Farm Insurance Co., 609 So.2d 195 (La.1992); see also, Matthews v. Maddie, 2001-1535 (La.App. 1 Cir. 6/21/02), 822 So.2d 739, writ denied, 2002-2420 (La.11/22/02), 829 So.2d 1052. For that reason, we must conclude that the trial court committed reversible error in omitting applicable essential legal principles in its instructions to the jury. See, Snia v. United Medical Center of New Orleans, 93-2367, pp. 1-2 (La.App. 4 Cir. 5/26/94), 637 So.2d 1290, 1291.

Both the plaintiff and the State argue in their appeal briefs that- this case warrants de novo review of the record by this Court due to the trial court’s inadequate jury instructions. Under Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), when an appellate court has all of the facts before it, a trial court’s erroneous jury instruction does not warrant a remand. However, given the unique circumstances of this case, with the Louisiana Supreme Court rendering its decision interpreting La. R.S. 32:24 just days after trial in this matter was concluded, we find that fairness dictates that the parties should have the opportunity to retry this case with the benefit of the principles enunciated in the Lenard ease. Accordingly, we reverse the trial court judgment and remand for a new trial. Because of this decision, we need not address the other issues raised in this appeal.

For the reasons stated above, we reverse the trial court judgment and remand this matter for a new trial.

I «REVERSED AND REMANDED.

BAGNERIS, J., concurs.

hBAGNERIS, J.,

concurs.

I agree with the majority’s conclusion that the trial court’s failure to include in the jury instructions an explanation of the “gross negligence” standard of care applicable to drivers of emergency vehicles under certain circumstances constituted reversible error that the jury verdict be vacated. Further, I agree with the majority that this matter should be remanded to the trial court for a new trial.

      . We note that Mr. Rigol was accepted as an expert in the field of accident reconstruction only. He was not offered as an expert in the field of emergency vehicle policies and procedures.


author: I PATRICIA RIVET MURRAY, Judge.

text:
    Dr. Dion Lynn ARMSTRONG v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 2003-CA-1241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2004.

      Michael C. Darnell, Edwin R. Murray, Murray, Darnell & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    C. Byron Berry, Jr., Adams and Reese LLP, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   I PATRICIA RIVET MURRAY, Judge.

This is an appeal from a judgment of the trial court affirming a decision of the Louisiana State Board of Medical Examiners (the “Board”) that imposed disciplinary action on Dr. Dion Lynn Armstrong for violating La. R.S. 37:1285(A)(30), which provides that the Board may suspend, revoke, or impose restrictions on any license for violation of any of its rules. The Board’s rules that are at issue are entitled “Medications Used in the Treatment of Noncancer-Related Chronic or Intractable Pain,” 45 La. Adm.Code (LAC) §§ 6915-6923 (the “Pain Rules”).

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Armstrong is a sole practitioner practicing medicine in the New Orleans area. He was initially licensed to practice in this state in 1993. He considers himself a pain management specialist. Although he initially practiced as a general practitioner, he began concentrating his practice in the area of pain management in 1997. As noted above, the Board adopted the Pain Rules in that same year.

Between 1997 and 2001, except for his six-month suspension period (April to October 1999), Dr. Armstrong prescribed various controlled substances and other medications to the eleven patients under consideration in this case on a longjterm2 basis as treatment for their non-cancer-related chronic or intractable pain. In May 2002, the Board charged Dr. Armstrong by an administrative complaint with violating several of the documentary requirements of the Pain Rules in his treatment of those patients. The complaint alleged that he committed essentially the same violations for each of the eleven patients under consideration; to wit:

• Failure to perform or record in the patient’s chart a thorough evaluation of the patient prior to or at any time during the treatment. Section 6921(A)(1).
• Failure to establish or fully document in the patient’s chart an individualized treatment plan prior to or at any time during the treatment. Section 6921(A)(3).
• Failure to see or document in the patient’s chart that Dr. Armstrong saw the patient at appropriate regular and frequent intervals in order to assess the efficacy of treatment, assure that controlled substance therapy remains | ^indicated, and evaluate the patient’s progress toward treatment objectives and any adverse drug effects. Section 6921(B)(1).
• Failure to take primary responsibility for or document in the patient’s chart that he was taking the primary responsibility for the controlled substance therapy employed by him. Section 6921(B)(3).
• Failure to document in the patient’s chart the medical necessity for the use of more than one type or schedule of controlled substance. Section 6921(B)(5).
• Failure to document and maintain in the patient’s chart accurate and complete records of history, physical and other examinations and evaluations, consultations, laboratory and diagnostic reports, treatment plans and objectives, controlled substance and other medication therapy, informed consents, periodic assessments, and/or review and the results of all other attempts at analgesia which he has employed alternative to controlled substance therapy. Section 6921(B)(6).
j4* Failure to document in the patient’s medical record the date, quantity, dosage, route, frequency of administration, the number of controlled substance refills authorized, as well as the frequency of visits to obtain refills. Section 6921(B)(7).

In October 2002, an administrative hearing was held at which the Board introduced the following documentary evidence: 1) the Board’s records regarding Dr. Armstrong’s prior appearances before it and two prior disciplinary infractions; 2) the administrative complaint under consideration; 3) the Board’s records regarding certain procedural matters in this case; 4) the subpoenas duces tecum the Board issued to Dr. Armstrong; 5) the subpoenas duces tecum the Board issued to various pharmacies and the returns thereto; 6) a pharmacy survey; 7) the 2002 Physician Desk Reference and Mosby’s GenRx entries for the various controlled substances and other medications Dr. Armstrong prescribed to the patients under consideration; 8) the state and federal controlled substance schedules for the pertinent time period; and 9) two medical journal articles.

The copies of the patients’ charts that the Board introduced were obtained by subpoena from Dr. Armstrong. Before the hearing, the Board compiled an exhibit book, which included the copies of those charts. Dr. Armstrong and his attorney were allowed to review the exhibit book before the hearing, yet no objection was made. Although Dr. Armstrong in his testimony claimed the copies of his patients’ | .^charges were incomplete in that they did not include a copy of the “Pain Management Agreement” he claimed was in the original charts, he neither introduced copies of his original charts nor any other documentary evidence.

The sole witness at the hearing was Dr. Armstrong. In an attempt to streamline the hearing, the parties stipulated that Dr. Armstrong’s testimony as to the two charts that were covered in detail — L.C.’s and M.G.’s — would be consistent and his responses would be the same for the other nine patients under consideration. More particularly, the parties agreed that Dr. Armstrong’s testimony as to what matters the Pain Rules required be documented in writing would be the same for all the patients.

In December 2002, the Board rendered its decision finding Dr. Armstrong violated several of the provisions of the Pain Rules. Given the stipulation noted above, the Board’s ruling focused on its review of the deficiencies in L.C.’s chart; summarized, the Board’s ruling was as follows:

• Dr. Armstrong first saw L.C. on February 11, 1998. At that time, L.C.’s chief complaints were neck and back pain. The three-page patient history form L.C. filled out indicated that he had neck surgery, which the surgical report in the record reflects took place on March 16, 1990. L.C. also reported being in a motor vehicle accident in 1997, yet there is no mention in the chart of any injury resulting from that accident. Nor does the chart contain any medical records from the Hancock Medical Center, where L.C. apparently went after the 1997 accident for treatment. However, a “Pain Assessment Form,” which is in the chart, shows that he claims to be suffering from pain in the neck, back, and down his legs as a result of that accident. The chart contains no reports of injury or treatment following the 1997 accident.
• Another Pain Assessment Form in the chart shows that he has suffered from neck and low back pain, pain down his left arm, and leg cramps in his | ricalves, since the neck surgery in 1990. The chart contains various diagnostic reports and an operative report from the 1990 surgery.
• Although the chart contains a physical examination form for each visit, Dr. Armstrong failed to record the patient’s vital signs at any time during the course of treatment. Also, following each visit, Dr. Armstrong wrote out his diagnosis and listed the substances he prescribed. However, the chart contains no detailed treatment plan.
• As to the requirement that the medical necessity of using more than one type of controlled substance, the chart does not document the reason why the various substances are being prescribed. At the hearing, Dr. Armstrong explained that virtually all of his patients suffer from nausea because of the pain drugs they are taking and that they all have trouble sleeping. He stated that these conditions are so universal that it is unnecessary to note them in the chart; he says this is a given in his practice.
• The chart failed to document that the patient was informed of the risks and benefits of controlled substance therapy, nor does it contain an informed consent by the patient to the treatment offered him, which the Pain Rules specifically require. Dr. Armstrong explained at the hearing that he began using an informed consent in 2001 and that every patient had signed one. He testified he could not understand why these were not in the charts. He also testified that he fully explained the risks and benefits of controlled substance therapy to the patient at the initial visit.
• When questioned about the charge of failure to document that he assumed primary responsibility for the treatment of the patient, Dr. Armstrong responded that he asked the patient if he was seeing other physicians and instructed them that he wanted to be their only physician. He also testified that he thought it was the patient who was primarily responsible for taking the drugs in the manner in which he prescribed them. The chart, however, does not document these facts.
• Dr. Armstrong was suspended from April 14, 1999 until October 1, 1999. During that time he did not treat L.C. When he resumed practice, he resumed treating L.C., yet he did not inquire as to the treatment L.C. received during the suspension period. Neither did he seek any information from any physician who might have treated L.C. during that suspension period.
• The chart fails to note the number of refills given with each prescription. At the hearing, Dr. Armstrong testified that he did not note the number of refills because he could tell this based on the frequency of the patient’s visits. He explained that his method of prescribing was based on a three-week cycle. If a patient did not return for six weeks, it meant he had received one refill. For nine weeks, he received two refills. And for twelve weeks, he received three refills.

lyRejecting Dr. Armstrong’s contention that some of the requirements of the Pain Rules need not be documented, the Board stressed that various provisions of the Pain Rules require documentation and reasoned that “[n]ot only the Pain Rules, but the requirements of good medicine, require that a chart be maintained in such a way that another physician, reading the chart, will be fully informed as to all matters related to the diagnosis and treatment of the patient.” Continuing, the Board commented:

The Pain Rules are not a guide to what one can get away with. They are intended as a guide to good medicine in this delicate area, and as a protection to the public from less than scrupulous practitioners. Other, less drastic modalities should be tried, or at least seriously-considered, before controlled substances are resorted to. Treatment plans should not be merely a list of drugs, but a reasoned approach to the problems, with ultimate goals fully explained. If there is no improvement shown in a reasonable period of time, physicians in other specialties should be consulted in an attempt to alleviate the suffering of the patient. Failure to make a good faith effort to practice good medicine, and to follow the Pain Rules completely and thoroughly opens the practice of medicine to comparison with illegal drug dealers.

Given the evidence presented, the Board concluded that Dr. Armstrong was clearly guilty of failing to maintain full documentation of the evaluation and treatment of the eleven patients under consideration.

Turning to the issue of sanctions, the Board began by summarizing Dr. Armstrong’s two prior disciplinary infractions, stating:

In December, 1990, he applied to the Board for full licensure, which was denied because of certain criminal charges and convictions which had not been revealed when he first applied for intern registration. After a hearing on the denial, because of certain mitigating circumstances, the Board permitted Dr. Armstrong to withdraw his application for licensure, and gave him the opportunity to complete an internship.
In 1998, Dr. Armstrong was once again before the Board for making untrue statements on his applications for renewal of his license in both |s1996 and 1997. He was found guilty of that charge, and his license was suspended for a period of six months. It was reinstated on October 1,1999.

Given these prior disciplinary infractions, the Board reasoned that it had given Dr. Armstrong several opportunities to practice medicine in this state despite his “serious academic and ethical shortcomings.” The Board further reasoned that Dr. Armstrong’s actions in this case could not be deemed to be the result of carelessness or ignorance on his part; instead, the Board found Dr. Armstrong’s actions “demonstrated a disregard of the clear requirements of the Pain Rules, and of the principles of good medicine.” Given those findings, the Board imposed the following sanctions: (1) his license to practice medicine in this state was suspended for two years; (2) his privilege of prescribing, administering, or dispensing any state or federally designated controlled substances or the drugs Stadol, Nubane, or Dalgan or any generic thereof was suspended for five years; (3) he was required to attend at least fifty hours of Continuing Medical Education each year his license was suspended; (4) he was fined $3,000 and ordered to pay all costs of the proceeding; and (5) he was required to personally appear before the Board ninety days before the completion of the suspension to apply for reinstatement of his license.

Dr. Armstrong then filed a Petition for Judicial Review to the Civil District Court and requested a stay of the Board’s ruling, which the district court, over the Board’s objection, granted. In April 2003, the district court affirmed the Board’s decision. Finding that the required documentation was not made, the trial court stated in its reasons for judgment:

These rules are very specific and require a treating physician to clearly document in the patient’s medical record the entire treatment plan of the patient. The Board reviewed Dr. Armstrong’s medical | flcharts, including the pharmacy entries for controlled substances or medications he prescribed, of certain identified patients to determine if the pain rules were complied with. This evidence revealed that Dr. Armstrong improperly evaluated several patients as there was no record of vital signs or reports of injury or treatment. He also failed to document why various substances were prescribed on certain occasions and failed to note the number of refills given with each prescription. The record further showed that there was no documentation of informed consent by the patient to the treatment offered and that the appellant failed to document the medical necessity of the use of more than one type of controlled substance. These deficiencies were evident in all of the medical records reviewed.

The trial court also rejected Dr. Armstrong’s argument that the sanction was excessive. This appeal followed.

ASSIGNMENT OF ERROR

On appeal, Dr. Armstrong asserts the following assignment of error:

The Board erred in finding that Dr. Dion Lynn Armstrong violated R.S. 37:1285A(30) which is founded upon violation of the Board’s rules relative to Medications Used in the Treatment of Non-Cancer Related Chronic or Intractable Pain, 45 LA. Adm.Code Section 6915-6923 also known as the Board’s Pain Management Rules.
Therefore, in making the decision to suspend Dr. Armstrong’s license for a period of two years; suspension of his right to order, prescribe, administer, or dispense any state or federally designated controlled substance or the drug Stadol, Nubande, or Dalgan or any generic thereof for a period of five years; requiring him to obtain not less than 50 hours of Continuing Medical education per year while his license is suspended; and paying a fine of $3,000 plus all costs of this proceeding, the Board’s actions were arbitrary, capricious, characterized by abuse of discretion, and clearly an unwarranted exercise of their discretion. The actions herein taken by the Board can clearly be classified as excessive and unreasonable. The Board did not provide a sufficient enough record to establish a standard of care and show the alleged breach of that standard or to enable a reviewing court to determine if their decision was justified.

STANDARD OF REVIEW

The jurisprudence has recognized that the standard of review of an administrative agency’s decision is narrower than the traditional standard of review applied to civil and criminal appeals. Reaux v. Louisiana Bd. of Med. Examiners, 2002-0906, p. 3 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726, writ denied, 2003-2546 (La.11/26/03), 860 So.2d 1138. The exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G) of the Administrative Procedure Act (“APA”). Id. Defining the scope and standards for judicial review of agency decisions, Section 964(G) provides that a court can reverse an agency’s decision if the appellant’s substantial rights have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964 G. Moreover, the APA provides that “[t]he agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.” La. R.S. 49:956(4).

A reviewing court should not set aside an administrative agency’s decision to impose a particular sanction unless that decision can be characterized as arbitrary, capricious or an abuse of discretion. Holladay v. Louisiana State Bd. of Med. Examiners, 96-1740, p. 18 (La.App. 4 Cir. 2/19/97), 689 So.2d 718, 727 (citing La. R.S. 49:956(5)). “The imposition of an administrative sanction is in the nature of a disciplinary measure. In deciding what, if any, discipline to impose, the Board may be strict, moderate or lenient.” Holladay, 96-1740 at p. 18, 689 So.2d at 727.

The jurisprudence has also recognized that “in reviewing such [administrative] actions, courts must be cognizant of the strong presumption of validity and propriety in such administrative actions where casting judgment upon the professional behavior of a fellow member of a profession is a matter peculiarly within the expertise of an agency composed of members of that profession.” Montalbano v. Louisiana State Bd. of Med. Examiners, 560 So.2d 1009, 1011 (La.App. 4 Cir.1990). Given the jurisprudential presumption of correctness of an agency’s actions, the appellant, Dr. Armstrong, has the burden of proving the record contains no facts to establish the validity of the charges levied against him.

DISCUSSION

On appeal, Dr. Armstrong’s principal argument is that the Board’s failure to present expert testimony to establish the applicable standard of care and his violation of that standard precludes review by this court and impairs his due process rights. Dr. Armstrong further argues that the record contains only his testimony, the Board’s ruling, and the trial court’s decision affirming that ruling and that there is not a sufficient basis on which this court can conduct a judicial review of the record.

In support of his position, Dr. Armstrong relies on our reasoning in Matter of DiLeo, 95-0444 (La.App. 4 Cir. 9/28/95), 661 So.2d 162. Particularly, he cites our reasoning that the Board, in finding Dr. DiLeo guilty of over-prescribing pain medication, could not rely solely on the subjective interpretation of a single | ^.physician who failed to cite any regulation or statute that had been violated. By analogy, Dr. Armstrong argues that the Board improperly relied solely on its subjective interpretation of its Pain Rules to find that he failed to satisfy the documentation requirements.

The Board counters that DiLeo is distinguishable because it predates the Pain Rules and because Dr. DiLeo adequately documented his prescriptions and medical records. The Board further counters that the primary evidence supporting its decision is Dr. Armstrong’s charts and his testimony. The Board still further counters that we should affirm the Board’s decision because Dr. Armstrong has not demonstrated any grounds for supplanting the Board’s decision, either factually or legally. We agree.

Dr. Armstrong’s reliance on DiLeo is misplaced. In DiLeo, the sole evidence supporting the Board’s finding that Dr. DiLeo improperly prescribed pain medication to eight patients was an expert’s testimony that the duration of the prescriptions was too lengthy. That expert, however, admitted there was no written standard as to the length of pain medication and that there were differing schools of thought on the issue. Reversing, we reasoned that the record lacked any evidence of the appropriate standard of care as to the duration for which chronic pain could be treated with narcotic pain medication. We noted that this was not a case in which the doctor was prescribing pain medication without an examination or without a reasonable belief that the patient was in pain or was in need of medication; rather, the record reflected that Dr. DiLeo conducted regular exams of these patients and kept adequate medical records of their treatment.

In Holladay, supra, we rejected an attempt to extend DiLeo and limited it to the unique factual and evidentiary setting presented in that case. In so doing, we |1snoted that our holding in DiLeo was not a legal one but rather a factual one based on the insufficiency of the evidence of the standard of care. In DiLeo, we held that the standard of care could be established by regulation or by statute. In Holladay, supra, we clarified that the standard could be established by any appropriate evidence and that the Board was not limited to publishing written standards. We further stated in Holladay that DiLeo did not apply in “a case where the evidence in the Board’s record clearly established the appropriate standards of care for the management and treatment of patients complaining of non-malignant pain with chronic medication therapy and the physician’s violation of such standards.” Holladay, 96-1740 at p. 10, 689 So.2d at 723. Such is the case here.

Here, the standard of care clearly is established by the documentary requirements enumerated in the Pain Rules. As the Board stresses, the Pain Rules, which were adopted pursuant to the APA, are self-proving and have the force of law. The Board’s apparent purpose for adopting these Pain Rules was to alleviate the concerns of physicians over being disciplined for over-prescribing pain medication.

Commenting on the interplay between such pain rules and disciplinary investigations, one medical review board stated: “ ‘the general policy that was made known to physicians is that we leave prescribing and pain management control issues to their professional judgment, but if there is a complaint, they better have proper documentation, such as informed consent, history and physical monitoring, etc.’ ” Diane E. Hoffman & Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. Med. & Ethics 21, 26 (2003).

114The distinction, which the above comment makes, between matters of professional judgment regarding prescribing practices and requirements of maintaining proper documentation is insightful in resolving Dr. Armstrong’s arguments. Matters of professional judgment, such as the physician’s prescribing practices at issue in DiLeo, may be the subject of different schools of thought, which would be relevant in establishing the standard of care. in contrast, the documentary requirements of the Pain Rules are not subject to such disputes. See Halter v. State, Dep’t of Commerce and Econ. Dev., Med. Bd., 990 P.2d 1035 (Alaska 1999)(rejecting argument of doctor charged with failure to properly record controlled substance prescriptions that an express standard of conduct was required regarding record keeping requirements).

To the extent Dr. Armstrong’s argument is based on the notion that the documentary requirements of the Pain Rules are subject to varying interpretations, we find the reasoning in McFadden v. Mississippi State Bd. of Med. Licensure, 735 So.2d 145 (Miss.1999), instructive. There, the court noted that “Dr. McFadden characterizes this case as ‘a disagreement among two groups of professionals about the appropriate course of treatment’ for chronic nonmalignant pain patients instead of a disciplinary action for improper patient monitoring and improper controlled substance prescribing practices.” McFadden, 735 So.2d at 160. Citing Holladay, the McFadden court noted:

[T]he Louisiana court held that [the physician’s] argument misses the point. It is not [the physician’s] liberal prescribing philosophy which resulted in the Board’s decision, rather it was [the physician’s] failure to adhere to basic precepts of medical practice or to follow the appropriate medical standards that were his violations. Certain basic standards are recognized by both schools of thought.” Id. Similarly, |1fithis court concludes that Dr. McFadden misses the point. It was Dr. McFadden’s failure to record the issuance of numerous controlled substance prescriptions, among other things, in violation of the Board’s rules and regulations that resulted in this disciplinary proceeding.

McFadden, 735 So.2d at 161.

Similarly, we conclude that Dr. Armstrong’s argument regarding the differences of opinion as to the meaning of the documentary requirements of the Pain Rules misses the point. The charges at issue in this case regarding Dr. Armstrong’s failure to maintain accurate records constitute violations not only of the Pain Rules, but also of prudent medical practice. As we noted in discussing the practice of prescribing controlled substances for the relief of non-malignant pain in Holladay, “when [such practice is] unaccompanied by appropriate testing, diagnosis, oversight and monitoring, as occurred in Dr. Holladay’s case, the physician falls below generally accepted standards of care, constituting the practice of bad medicine.” Holladay, 96-1740 at p. 17, 689 So.2d at 727. In this case, the Board found Dr. Armstrong’s conduct amounted to just that: a violation of not only the Pain Rules but also of “the requirements of good medicine.”

Dr. Armstrong further argues, citing out of state jurisprudence, that without expert testimony in the record as to the applicable standard of care and the violation of that standard, a reviewing court, which lacks scientific and technical expertise, cannot effectively determine the basis for the board’s decision and evaluate the sufficiency of the evidentiary support. Louisiana courts have never ] ^adopted that position. Rather, as a commentator points out, Louisiana courts have taken the position that evidence of the standard of care is required, but they have not voiced a preference for expert testimony. See Timothy P. McCormack, Comment, Expert Testimony and Professional Licensing Boards: What is Good, What is Necessary, and the Myth of the Majority-Minority Split, 53 Me. L.Rev. 139, 177-178, n. 272 (2001)(citing DiLeo, supra, and Holladay, supra)(“McCormack”).

One of the key factors in determining the type of evidence required to establish the standard of care is the nature of the charge before the board. McCormack, supra. Although expert testimony may be required to prove charges involving professional judgment and clinical practice or complex and highly technical matters, common sense may be enough to make evaluations of other type of charges that are within the scope of a lay person’s comprehension. McCormack, supra. As suggested above, charges of violating the documentary requirements of the Pain Rules fall into the latter category. This categorization is buttressed by the following reasoning in Arthurs v. Board of Registration in Med., 383 Mass. 299, 418 N.E.2d 1236, 1243-44, n. 22 (1981), another decision involving improper prescription practices:

The findings that prescriptions for controlled substances were not recorded, or were recorded on the wrong patient card, as well as the findings as to the quantity of drugs prescribed at short intervals to patients in excess of Ar-thurs’s [sic] specific directions to take one tablet daily, all support the board’s conclusion that Arthurs prescribed controlled substances for other than a legitimate medical purpose.
Our review of these findings does not require the use of specialized knowledge. It requires only an examination of the board’s findings as to the dosage and frequency of Arthurs’s [sic] prescriptions, the prescriptions Arthurs failed to record on his patient cards, and a review of the testimony concerning Ar-thurs’sfsic] prescribing of 117controlled substances to [the patients] ... We view these as matters of common experience and common sense, not technical expertise.

Id.

As in Arthurs, supra, we find the documentation requirements of the Pain Rules that Dr. Armstrong is charged with violating are “matters of common experience and common sense, not technical expertise.” Id. This point was illustrated at oral argument when the Board’s attorney acknowledged that some of the Pain Rules involve discretionary decisions and could require expert testimony to establish a violation. One such rule is the requirement that a physician obtain a drug screen if he “reasonably believes” that the patient is suffering from substance abuse or that he is diverting controlled substances. That rule, however, is not at issue.

Returning to the instant situation, as noted above, the charges before the Board in this case clearly are not ones requiring expert testimony. Although Dr. Armstrong acknowledges that the Pain Rules require documentation of certain | ismatters, he nonetheless argues that the rules do not define how such documentation must be done. He further argues that an expert in pain management, which he stresses none of the Board members possess such expertise, was necessary to detail to the Board how such documentation must be done. We find Dr. Armstrong’s argument that the Board needed pain management specialists to inform them what its documentation requirements mean in practice unpersuasive. See Hebert v. Louisiana State Racing Comm’n, 476 So.2d 823, 825 (La.App. 4 Cir.1985)(re-jecting complaint that “scientific experts did not in his case tell the commission what it already knew”); Reaux, 2002-0906 at p. 7, 850 So.2d at 728 (noting that “[u]nlike a jury of laypersons, a board made up of physicians is able to evaluate medical issues without the assistance of expert testimony”).

Dr. Armstrong still further argues that he followed the documentary requirements of the Pain Rules by having his patients sign a Pain Management Agreement, which satisfied several of the documentation requirements at issue. As noted earlier, Dr. Armstrong made multiple references to that Agreement in his testimony at the hearing. Although he claimed the Agreement was part of his original records, he failed to introduce his original patient records at the hearing. The Agreement was thus not part of the record and is not properly before us. Dr. Armstrong’s reliance on the Agreement as satisfying the Pain Rules at issue is thus misplaced.

|inWe further find, as the Board argues,that Dr. Armstrong’s testimony before the Board was inconsistent in several respects. First, as noted above, Dr. Armstrong’s testimony that the medical records introduced were incomplete in that they do not include the Pain Management Agreement was inconsistent with his testimony that he did not start using the Agreement until around 2001. Another inconsistency in his testimony was that he initially denied consulting with other doctors regarding whether they were treating his patients, yet he subsequently testified that he and his staff did contact other doctors to determine if the patients were “double-dipping.” The Board had the opportunity to judge Dr. Armstrong’s credibility first-hand at the hearing, and we are required to give due regard to the Board’s determinations on such credibility issues. La. R.S. 49:964(G)(6).

In conclusion, our review of the documentary evidence the Board presented and Dr. Armstrong’s testimony at the hearing supports the Board’s finding that the documentary requirements of the Pain Rules were violated in numerous respects. We thus find that the Board’s decision that Dr. Armstrong violated the Pain Rules in numerous respects is “supported and sustainable by a preponderance of evidence.” La. R.S. 49:964(G)(6).

SANCTION

Turning to the sanctions issue, Dr. Armstrong assigns as error the Board’s imposition of an excessive and unreasonable sanction for his violation of documentation requirements. He argues that in several similar eases the Board has imposed significantly less severe sanctions on physicians found guilty of significantly more severe charges. We rejected a similar argument in Hughes v. Louisiana State Bd. of Dentistry, 490 So.2d 1097 (La.App. 4 Cir.1986), reasoning that “the mere circumstances that a lesser penalty has been imposed inj^one other case ... does not amount to a showing that defendant’s penalizing of plaintiff was ‘arbitrary or capricious or abuse of discretion or clearly unwarranted exercise of discretion.’ ” Hughes, 490 So.2d at 1103 (quoting Sturrock v. Louisiana State Racing Comm’n, 437 So.2d 357 (La.App. 4 Cir.1983)).

Dr. Armstrong next argues that the appropriate sanction should have been similar to that imposed in Holladay — i.e., a three month suspension and three year probation. Conversely, the Board cites this court’s reasoning in Holladay as supporting the Board’s sanction. Our reasoning, which the Board cites, was that given the Board could have legally revoked Dr. Holladay’s license, its selection of an “extraordinarily lenient” sanction did not indicate that the Board’s sanction was arbitrary or grossly disproportionate to the offense. Likewise, the Board notes that the same option of revoking Dr. Armstrong’s license was available in this case and that the Board’s sanction it imposed was not disproportionate to the offense.

Addressing a similar argument based on Holladay, we recently reasoned in Reaux, supra, that:

[Sjeldom are two cases truly identical in their facts, and the penalty imposed in each case must be judged in light of the facts peculiar to that case. The Board may have viewed the infractions for Dr. Reaux as more egregious than those of the Holladay case. The Board’s opinion below notes that the Board had previously disciplined Dr. Reaux in connection with his medication prescriptions; whereas, in Holladay, the physician involved apparently had not been previously disciplined.

2002-0906 at p. 9, 850 So.2d at 729. The same distinction is present in this case. Dr. Armstrong, like Dr. Reaux, has been previously disciplined by the Board. Although Dr. Armstrong challenges the correctness of the Board referencing his two prior disciplinary infractions, which he emphasizes were unrelated to the instant case, he failed to cite any authority precluding the Board from considering UiSuch past infractions. Indeed, logic dictates that the Board consider such past infractions to determine if they show a pattern.

Finally, we find Dr. Armstrong’s reliance on the fact that there was no harm to the patients involved in this case as warranting a lesser sanction is misplaced. Indeed, we rejected a similar contention in Walker v. Louisiana State Bd. of Med. Examiners, 94-0040, p. 5 (La.App. 4 Cir. 5/26/94), 638 So.2d 350, 352. In that case, Dr. Walker argued that the Board’s discipline was arbitrary because there was no evidence any of his patients were harmed by his prescriptions. Agreeing with the Board’s argument that its purpose is to stop inappropriate medical practices before patients are harmed, we held that evidence of patient harm is not required when controlled substances are involved. Such is the case here.

Accordingly, we find Dr. Armstrong’s argument that the sanction imposed on him was disproportionate unpersuasive.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Although the complaint listed fourteen patients, the counts as to two patients were dismissed, and the count as to one patient did not involve the Pain Rules. As to the latter patient, the complaint alleged an additional charge regarding Dr. Armstrong's practicing medicine during his six-month suspension period in 1999. The Board found he was not guilty of that charge. Hence, this appeal relates only to the charge of violating the Pain Rules in the treatment of eleven patients.

      . The Pain Rules enumerate two types of documentary requirements: (1) the prerequisites a physician must comply with before prescribing controlled substances on a protracted basis (Section 6921(A)), and (2) the requirements a physician must comply with in the on-going treatment (Section 6921(B)). The complaint alleged that Dr. Armstrong violated both types of documentary requirements. The pertinent rule is cited and quoted in the footnote following each allegation.

      . Section 6921(A)(1) presently provides:
      Evaluation of the Patient. Evaluation of the patient shall initially include relevant medical, pain, alcohol and substance abuse histories, an assessment of the impact of pain on the patient’s physical and psychological functions, a review of previous diagnostic studies, previously utilized therapies, an assessment of coexisting illnesses, diseases, or conditions, and an appropriate physical examination.
      In 2000, this provision was amended; as originally enacted in 1997, this provision provided
      Assessment of Treatment Efficacy and Monitoring. Patients shall be seen by the physician at appropriate regular and frequent intervals, of no less than 12 weeks, to assess the efficacy of treatment, assure that controlled substance therapy remains indicated, and evaluate the patient's progress toward treatment objectives and any adverse drug effects. During each visit, attention shall be given to the possibility of decreased function or quality of life as a result of controlled substance usage, as well as indications of possible addiction, drug abuse or diversion.

      . Section 6921(A)(3) presently provides:
      Treatment Plan. An individualized treatment plan shall be formulated and documented in the patient’s medical record, which includes medical justification for controlled substance therapy. Such plan shall include documentation that other medically reasonable alternative treatments for relief of the patient’s non-cancer-related chronic or intractable pain have been offered or attempted without adequate or reasonable success. Such plan shall specify the intended role of controlled substance therapy within the overall plan, which therapy shall be tailored to the individual medical needs of each patient.

      . Section 6921(B)(1) presently provides:
      Assessment of Treatment Efficacy and Monitoring. Patients shall be seen by the physician at appropriate intervals, not to exceed 12 weeks, to assess the efficacy of treatment, assure that controlled substance therapy remains indicated, and evaluate the patient’s progress toward treatment objectives and any adverse drug effects. Exceptions to this interval shall be adequately documented in the patient’s record. During each visit, attention shall be given to the possibility of decreased function or quality of life as a result of controlled substance treatment. Indications of substance abuse or diversion should also be given. At each visit, the physician should seek evidence of under treatment of pain.

        In 2000, this provision was amended; as originally enacted in 1997, this provision provided:
      Assessment of Treatment Efficacy and Monitoring. Patients shall be seen by the physician at appropriate regular and frequent intervals, of no less than 12 weeks, to assess the efficacy of treatment, assure that controlled substance therapy remains indicated, and evaluate the patient’s progress toward treatment objectives and any adverse drug effects. During each visit, attention shall be given to the possibility of decreased function or quality of life as a result of controlled substance usage, as well as indications of possible addiction, drug abuse or diversion.

      .Section 6921(B)(3) presently provides:
      Responsibility for Treatment. A single physician shall take primary responsibility for the controlled substance therapy employed by him in the treatment of a patient’s non-cancer-related or intractable pain.
      Although this provision was amended in 2000, the sole change was to add the highlighted word "single.” In all other respects, the present provision is identical to the original 1977 provision

      . Section 6921(B)(5) presently provides:
      Medications Employed. A physician shall document in the patient's medical record the medical necessity for the use of more than one type or schedule of controlled substance employed in the management of a patient’s non-cancer-related chronic or intractable pain.

      . Section 6921 (B)(6) presently provides:
      Treatment Records. A physician shall document in the patient's medical record, accurate and complete records of history, physical and other examinations and evaluations, consultations, laboratory and diagnostic reports, treatment plans and objectives, controlled substance and other medication therapy, informed consent, periodic assessments, and review and the results of all other attempts at analgesia which he has employed alternative to controlled substance therapy.

      . Section 6921(B)(7) presently provides:
      Documentation of Controlled Substance Therapy. At a minimum, a physician shall document in the patient’s medical record the date, quantity, dosage, roúte, frequency of administration, the number of controlled substance refills authorized, as well as the frequency of visits to obtain refills.

      .The pharmacy survey covered prescriptions by Dr. Armstrong of controlled substances and Soma tablets during the period from August 1, 1998 through August 1, 2000.

      . Although the record reflects that Dr. Armstrong had an expert present at the hearing, Dr. Armstrong did not call that expert to testify.

      . For confidentiality reasons, the patients initials are used.

      . See Russ M. Herman, Louisiana Personal Injury § 4:303 (2000)(citing DiLeo as illustrating the principle that "[¿different schools of thought on treatment may be considered in determining the standard of care and whether a breach occurred.”)

      . In Holladay, we noted that the Board introduced into the record copies of the regulations that had been adopted in Texas and California regarding the use of controlled substances to treat nonmalignant pain. We also noted the Board introduced expert testimony regarding those standards. We still further factually distinguished DiLeo in numerous respects, including that Dr. DiLeo maintained appropriate records.

      . Hake v. Arkansas State Med. Bd., 237 Ark. 506, 374 S.W.2d 173 (1964); Dotson v. Texas State Bd. of Med. Examiners, 612 S.W.2d 921 (Tex.1981).

      . Even the out of state jurisprudence that Dr. Armstrong cites recognizes that there are several exceptions to the rule that expert testimony is required to establish the standard of care. One such exception is when the alleged violation involves facts or occurrences within the general public’s comprehension. See generally James J. Watson, Necessary of Expert Evidence in Proceedings for Revocation or Suspension of License of Physician, Surgeon, or Dentist, 74 A.L.R.4th 969 (1989). This is analogous to the jurisprudence recognizing that while ordinarily expert testimony is required to establish the standard of care in a medical malpractice case, there are instances in which expert testimony is not necessary. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, p. 9 (La.10/17/94), 643 So.2d 1228, 1233-34. One such situation is when "the alleged negligence consists of violating a statute and/or the hospital’s bylaws.” Id. (citing Hastings v. Baton Rouge General Hosp., 498 So.2d 713, 722 (La.1986)) In Hastings, supra, the Louisiana Supreme Court held that expert testimony was not required to establish the standard of care for a hospital and its physicians regarding the duty to provide emergency services without regard to the patient’s ability to pay given that such standards were clearly set forth in the statutes and the hospital’s bylaws. Id. In Pfiffner, the Louisiana Supreme Court further explained its holding, stating: "there are 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, or in which the defendanVphysician testifies as to the standard of care and there is objective evidence, including the testimony of the defendanVphy-sician, which demonstrates a breach thereof.” Pfiffner, 94-0924, 94-0963, 94-0992 at pp. 9-10, 643 So.2d at 1234.

      . Section 6921(B)(2) of the Pain Rules presently provides:
      Drug Screen. If a physician reasonably believes that the patient is suffering from substance abuse or that he is diverting controlled substances, the physician shall obtain a drug screen on the patient. It is within the physician's discretion to decide the nature of the screen on the patient. It is within the physician's discretion to decide the nature of the screen and which type of drug(s) to be screened.

      . Although we granted the Board's motion to strike the copy of that Agreement that Dr. Armstrong attached to his brief, we note, as the Board contends, that even assuming we could properly consider it, Dr. Armstrong testified that he did not begin using this Agreement until 2001, which was after most of the time frame at issue in this case, 1997 to 2001. (As stated on the pharmacy surveys, the pertinent period examined in that survey was from August 1, 1998 through August 1, 2000.) Indeed, the copy of the Agreement he proffered for L.C. is dated September 28, 2001. Hence, as the Board emphasizes, even if we were to consider this Agreement, it would not help Dr. Armstrong's case.