text:
    Jonathan SHERIDON v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION and Diane Sheridon.
    No. 02-0943.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Robert Joseph Tete, Jones, Tete, Nolen, Hanchey, Fonti & Belfour, Lake Charles, LA, for Defendant/Appellee, First Federal Savings & Loan Association.
    William Mitchell Redd, Liles & Redd, Lake Charles, LA, for Defendant/Appellee, Diane Sheridon.
    William Kent Cutrer, Lake Charles, LA, for Plaintiff/Appellant, Jonathan Sheridon.
    Court composed of NED E. DOUCET, Jr., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   _JjAMY, Judge.

The plaintiff brought actions against two defendants seeking recovery for conversion and negligence. After a bench trial, the trial court denied both claims. For the following reasons, we affirm.

Factual and Procedural Background

This dispute concerns money which was transferred between different accounts at First Federal Savings and Loan in Sul-phur, Louisiana. Jonathan Sheridon, the plaintiff, opened two Access 90 savings accounts with First Federal on December 22, 1998, using a $9,800.00 check. This check was dated December 20, 1998, and listed the following names on the checking account: “EDWARD OR CATHERINE RICHARD” and “DIANE M. SHERI-DON.” Diane Sheridon was married to Mr. Sheridon at this time, and the checking account was also a First Federal account. On September 29, 1999, the Access 90 accounts, listed under the Mr. Sheri-don’s name, totaled $10,148.00; however, on this date, these funds were transferred back into the checking account of Edward or Catherine Richard and Diane Sheridon. As a result, Mr. Sheridon brought a cause of action against Diane Sheridon and First Federal, alleging conversion and negligence.

At a bench trial, Diane Sheridon testified that the funds in the First Federal checking account belonged to her mother, Catherine Richard. Her father, Edward Richard, was deceased. Since Mrs. Richard was suffering from several illnesses, including Alzheimer’s, Parkinson’s, and vascular dementia, she resided in a nursing home, and Ms. Sheridon was granted power of attorney by Mrs. Richard to attend to her mother’s financial affairs. Ms. Sheridon further testified that the $9,800.00 check provided to Mr. Sheridon was not intended to be a gift. Rather, Ms. Sheridon explained that, at a family meeting over the 1998 Thanksgiving holidays, the family ^discussed reorganizing her mother’s money. Due to this conversation, Ms. Sheridon stated that checks in the amount of $9,800.00 were distributed to the children of Mrs. Richard and their spouses.

Cliff Gallagher, Ms. Sheridon’s brother, testified that both he and his wife, Eva Stubits, also received $9,800.00 checks and stated that these checks were not intended to be gifts. Consistent with the testimony of Ms. Sheridon, Mr. Gallagher said that he and his wife took these checks with the understanding that they were to invest the money on his mother’s behalf. Mr. Gallagher explained that the amounts of the checks were intentionally under $10,000.00 to avoid attention being drawn to the money transfers. Also, Mr. Gallagher said that the money was not reinvested in Mrs. Richard’s name because the children wanted to ensure that nothing could be taken from their mother due to her declining mental health. Lastly, Mr. Gallagher confirmed that rebanee on the individual children or in-laws with this money would be based on trust to come forward and take care of Mrs. Richard.

Addressing the date of the alleged conversion, Ms. Sheridon testified that she began to experience difficulties in her marriage to Mr. Sheridon. Since Ms. Sheri-don believed that her marriage would end soon, she stated that she approached Mr. Sheridon on the morning of September 29, 1999, with a type-written document authorizing the transfer of the funds from the Access 90 accounts back to Mrs. Richard’s cheeking account. But, Ms. Sheridon stated that Mr. Sheridon tore the document by pressing a pen too hard to the document while signing. Ms. Sheridon said that she responded by simply handwriting another transfer authorization and that | aMr. Sheri-don signed it. Thereafter, Ms. Sheridon stated that she went to the First Federal branch in Sulphur, Louisiana.

Pam Whiteard, the vice-president and manager of the First Federal Sulphur branch, testified that, under the terms and conditions of the account contract, only Mr. Sheridon, as owner of the account, was authorized to perform withdraws or transfers. However, Ms. Whiteard also testified that the contract does not address by what fashion an owner of an account may conduct a withdrawal or transfer. Ms. Whiteard stated that withdrawals and transfers are governed by internal procedures and that an owner may conduct a withdrawal or transfer by telephone or written authorization. In addition, Ms. Whiteard testified that she spoke to both Mr. and Ms. Sheridon during the day of September 29, 1999. First, Mr. Sheridon visited the Sulphur office complaining that confidential information had been given to Ms. Sheridon. Next, Ms. Sheridon arrived several hours later requesting that the funds in the Access 90 accounts be transferred to the checking account of Mrs. Richard. When she arrived at the Sulphur branch, Ms. Sheridon had a handwritten authorization to transfer the funds in the Access 90 accounts and a folder with the Access 90 account information. Ms. Whiteard said that the signature on the transfer authorization was the signature Lof Mr. Sheridon. Additionally, Ms. Whi-teard advised that she also confirmed the transfer authorization by telephone.

Jonathan Sheridon testified that, although Mrs. Richard was not present when he received the check, it was his impression that the $9,800.00 check was a gift. Mr. Sheridon also denied that anyone was authorized to transfer money from the Access 90 accounts. He specifically denied signing the document authorizing the transfer of funds and speaking with Ms. Whiteard about the transfer. Nevertheless, the trial court denied both of Mr. Sheridon’s claims.

The trial court provided the following oral reasons for denying the claim against First Federal:

In addressing first the issue of First Federal, it is ... noted that defendant, First Federal acknowledges that as far as they were concerned Mr. Sheridon was the owner of those funds. The Court notes that as far as this action to transfer those funds, the bank or savings and loan, First Federal, either way has no interest in whether the funds were transferred or not transferred. The question therefore is inasmuch as they don’t have any interest were whether or not they complied with then-own standards. The Court specifically looks on page three of exhibit J-2, the terms and conditions of a savings account. The specific language indicates the owner is allowed to make withdrawals or transfers from the account only. The Court disagrees with the plaintiffs interpretation that this means only a personal appearance would in effect be the owner making the transfer. It is not that another individual use their name or attempted to make the transfer in another name other than the owner.
The bank clearly indicated that they have an administrative or internal procedure, if they verify that the action is ordered by the owner, that they will in fact comply therewith. In this situation a written note bearing what appeared to be the signature of the owner of the account, that signature being in conformity with the signature cards of record. And, finally, upon following up with a telephone conference with the defendant with the plaintiff which was confirmed by Ms. Whiteard, and the Court finding it impressive that she had no hesitation in recognizing Mr. Sheri-don’s voice based on the uncontested testimony that he in fact did appear at some point earlier in the day at the facility, and was in fact upset and was very irate over dissemination of information concerning his accounts.
Ut is the Court’s position that as far as First Federal is concerned at this time they did not violate any terms of their agreement, and, in fact, acted in conformity therewith, and therefore did not convert. Therefore, as far as the burden of proof and the allegations made against the defendant, First Federal, judgment is granted in favor of the defendant, First Federal, as to those allegations of conversion brought by Mr. Sheridon.

Mr. Sheridon now appeals, presenting the following issue:

Whether the trial court erred in interpreting the contract between First Federal and Jonathan Sheridon, the owner of the Access 90 Accounts, when the trial court found an administrative or internal procedure allowing the transfer of funds without the owner being present even though the contract did not specifically allow this kind of transfer?

Discussion

Standard of Review

A trial court’s finding of fact cannot be set aside by an appellate court in the absence of manifest error or unless it is clearly wrong. Stobart v. DOTD, 617 So.2d 880 (1993). Further, in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989), the Louisiana Supreme Court stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finders’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

| Conversion

In his brief, Mr. Sheridon asserts that First Federal allowed the withdrawal of funds from his Access 90 accounts without proper authorization. Mr. Sheridon additionally alleges that First Federal’s actions were not in compliance with the terms and conditions of their own contract dealing with the Access 90 accounts. Due to this alleged, unauthorized withdrawal and First Federal’s refusal to return the money to Mr. Sheridon, he contends that he is entitled to recover for conversion. We disagree.

Initially, we note that a conversion action “is grounded on the unlawful interference with the ownership or possession of a movable.” Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-343, p. 5 (La.12/1/98); 721 So.2d 853, 857. In other words, “[a] conversion consists of an act in derogation of the plaintiffs pos-sessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion.” Labbe v. Premier Bank, 618 So.2d 45, 46 (La.App. 3 Cir.1993). We also note that Mr. Sheridon’s brief specifically states that he is not appealing the trial court’s denial of his claim against Diane Sheridon. Yet, we cannot determine whether Mr. Sheridon’s appeal has merit without addressing the trial court’s findings concerning Ms. Sheridon because Mr. Sheridon must demonstrate some ownership or possessory rights to the funds at issue.

When denying the claim against Ms. Sheridon, the trial court stated, in pertinent part:

Now, for Mr. Sheridon’s benefit, I think it was established that he was at home very seldom, and in fact was not part of the initial — or may or may not have been part of the family — but giving him the benefit of the doubt, the Court is of the opinion that at best, due to his job and being consistently away, that he may have been under a misunderstanding as to what the true intent of what those funds were to 17be. The Court is more impressed with Mr. Gallagher, the brother of the defendant, Diane Sheri-don, who appeared to be competent in business, rationally explained his actions, and was creditable in expressing the family’s intent, indicating that the, for lack of a better term, financial deceptions, were to be done by the family and the in-laws to benefit the mother, of which the Court accepts as being rational in order to divest the funds with the minimum consequences to loved ones that could be relied upon, and yet protect the mother’s interest from potential seizure or devastating financial burdens that may have occurred to her.
The Court is cognizant that in dealing with matters of trust, as was being done in this situation, many potential problems could occur in order to establish the true intent or true ownership of the dollars. It is this Court’s position based, as indicated, on the totality, that the true owners of the funds was in fact Mrs. Richard, and that those funds were systematically divested to various heirs and in-laws solely for the purpose of being available for later use based on nothing more than trust without any legal documentation to be in place.
Therefore, the Court will rule that the ownership of those funds never divested themselves from Mrs. Richard. The Court does acknowledge that a Donation Inter Vivos such as this generally has to be where the donor will divest themselves irrevocably, of which Mrs. Richard was not a part of this, but due to her medical condition we look to the agent who had the Power of Attorney. The case law as indicated by defendants herein, Diane Sheridon, does indicate there must be an express power to donate; and the Court has reviewed the Power of Attorney, and while the exact words “donate” are not included, the Court does not take the position that the Power of Attorney as indicated was a general Power of Attorney, and in fact contains the words that it was unconditionally — that is was given to her with unconditional discretion.
... [B]ased on the reasons stated herein, specifically the totality of the evidence and the credibility appraisals that were made by the Court, the Court finds that the defendant herein, Diane Sheri-don, recovered funds that did belong to her mother that had been previously placed in Mr. | sJonathan Sheridon’s name. Therefore, there is no conversion based on the ownership being determined belonging to Mrs. Richard; and the plaintiffs claims against Ms. Diane Sheridon is [sic] also denied and judgment will be - granted in favor of Ms. Sheridon on behalf of Mrs. Richard denying any type of recovery or conversion. ...

(Footnote added.) Consequently, in light of the trial court’s finding that the funds at issue were owned by Mrs. Richard, Mr. Sheridon has not established that he is entitled to recover in this case.

Furthermore, even assuming Mr. Sheri-don owned the funds at issue, the trial court’s findings regarding First Federal’s actions are not clearly wrong or manifestly erroneous. The trial court found that First Federal was presented a hand-written transfer authorization bearing the signature of Mr. Sheridon. The trial court also found that, in accordance with the bank’s administrative or internal procedures, First Federal will perform an action ordered by the owner after verification; and, the trial court found that Ms. Whi-teard verified the transfer order by speaking with Mr. Sheridon by telephone. Although the account contract provides that only the owner of the account is allowed to make a transfer or withdrawal, the contract does not address by what fashion the owner may perform a transfer or withdrawal. As such, we find no error in the trial court’s determination that the contract does not require the owner to appear in person to perform such an action. The contract only requires that the owner give the transfer order. Accordingly, the trial court did not err when it denied Mr. Sheri-don’s claims against First Federal.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff-appellant, Jonathan Sheridon.

AFFIRMED.

      . The hand-written note admitted into evidence reads as follows:
      To First Federal Savings & Loan
      I Jonathan E. Sheridon authorize my wife Diane M. Sheridon to close Access 90 accounts #50402780-10 and 50402781-10 and to be deposited into the account of Catherine Richard Acct # 250002755-01.

        9-29-99
      [printed] Jonathan E. Sheridon [signed] Jonathan E. Sheridon

      . Shellie Theriot, a lending officer with First Federal, also testified that Mr. Sheridon, complaining about his wife receiving confidential information, visited the Sulphur branch of First Federal on the morning of September 29, 1999.

      . "A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.” La.Civ.Code art. 1468. “The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.” La.Civ.Code art. 1539. “To establish a donation inter vivos of a manual gift, the donee has the burden of proving by strong and convincing evidence donative intent of the donor.” Mertens v. Mertens, 96-391, p. 3 (La.App. 3 Cir. 10/9/96); 688 So.2d 1148, 1150, writ denied, 96-2716 (La.1/6/97); 685 So.2d 123. "Donative intent is a factual issue and is subject to the manifest error/clearly wrong standard of appellate review.” Id. atp. 4; at 1150.


source: Caselaw Access Project

author: hDOUCET, Chief Judge.

license: Public Domain

text:
    Ponchella Kelly DAUPHINEY, individually and as tutrix of her minor children, Kellie Dauphiney and Kayla Dauphiney v. MGA INSURANCE COMPANY, Harold J. Boudreaux, Jr. and Dean Duhon.
    No. 02-946.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Michael J. Mestayer, Walter J. Leger, Jr., New Orleans, LA, Stephen F. Mestayer, New Iberia, LA, for the Plaintiff/Appellant, Ponchella Dauphiney.
    Jerry Oubre, New Iberia, LA, for the Defendant/Appellee, Louisiana Farm Bureau Insurance Co.
    Court composed of NED E. DOUCET, Jr., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hDOUCET, Chief Judge.

The Plaintiff, Ponehella Dauphiney, individually and as tutrix of her minor children, Kellie Dauphiney and Kayla Dauphi-ney, appeals the dismissal of her action against Farm Bureau Insurance Co. (Farm Bureau), pursuant to the Defendant’s Motion for Summary Judgment.

On October 1, 1997, Harold J. Bou-dreaux was hauling sugar cane owned by Donald Guillotte Farms, Inc. (Guillotte Farms) in a 1984 Freightliner truck and trailer owned by Tessie Duhon. The Guil-lottes and Duhons shared farming equipment. Each paid the labor for the hauling of their own crops. Boudreaux was hauling a load of cane to the mill. He turned east onto U.S. Hwy. 90. Dauphiney was traveling east on U.S. Hwy. 90. She alleges that Boudreaux turned into her path of travel and that she was unable to stop in time to avoid hitting him.

Dauphiney filed suit against Boudreaux, Donald Guillotte Farms, Lynne Guillotte Farms and Donald Guillotte, individually, Tessie Duhon and her husband, Dean Du-hon, and their insurers, including Farm Bureau. Dauphiney settled her claims against the Duhons and their insurer, MGA Insurance Company, releasing from liability MGA, the Duhon interests, Bou-dreaux and the Guillotte interests, but reserving her rights against Guillotte’s insurer, Farm Bureau.

In March 2001, Farm Bureau filed a motion for summary judgment asking that the claims against it be dismissed because no material question of fact remained but that its policies did not provide coverage for the accident between Dauphiney and Boudreaux. The trial court granted the motion and dismissed Dauphiney’s action against Farm Bureau. Dauphiney appeals.

I ¡.SUMMARY JUDGMENT

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2).
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2).
We review a trial court’s grant of a motion for summary judgment using the de novo standard of review. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

Davison v. Winford Co., Inc., 02-0342, pp. 4-5 (La.App. 3 Cir. 10/2/02); 827 So.2d 1255,1258.

INSURANCE COVERAGE

Originally, Dauphiney asserted that coverage existed under three separate Farm Bureau policies issued to Donald Guillotte: an automobile liability policy describing a 1981 Freightliner truck, another automobile liability policy describing a 1979 International truck, and a comprehensive personal liability policy. On appeal Dau-phiney asserts that the trial court erred in granting the summary judgment, arguing that the trial court overlooked coverage available under the Farm Bureau personal liability and automobile policies.

| .PERSONAL LIABILITY POLICY

The Plaintiff asserts a material question of fact remains as to whether the Farm Bureau personal liability policy issued to Guillotte provides coverage for this accident. She first cites the medical payments coverage of the policy which provides:

Coverage C — Medical Payments. To pay all reasonable expenses incurred within one year from date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral service, to or for each person who sustains bodily injury, sickness or disease, cased by accident:
(1) while on the premises with the permission of an insured, or,
(2) while elsewhere if such injury, sickness or disease (a) arises out of the premises, (b) is caused by the activities of and insured, (c) is caused by the activities of a farm employee while in the employment of an insured, or (d) is caused by an animal owned by or in the care of an insured.
As a condition precedent to payment under coverage C, the individual to or for whom payment is made shall agree in writing to reimburse the company if payment is received for such medical expenses from another who is legally liable for the injury.

She further contends that the policy provides comprehensive general liability coverage in that it provides under insuring agreements:

1. COVERAGES

Coverage A — Public Bodily Injury Liability. To pay on behalf of the insured all sums except punitive damages, unless required to be included by law, which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person.

However, the Defendant points out that the policy also provides as follows:

EXCLUSIONS

The policy does not apply:
L(b) under coverages A, B and C, to the ownership, maintenance, or use, including the loading or unloading of (1) automobiles while away from the premises or the ways immediately adjoining, or while on the premises if there is other valid or collectible insurance; ....

However, the Plaintiff asserts that this exclusion does not apply, because some of the complained of acts of negligence, including the failure to correct the poor lighting and reflectivity of the trailer, occurred on the Guillotte premises. However, after examining the evidence in this regard, we find that the accident would not have occurred but for the operation of the vehicle away from the premises. Therefore, the trial court correctly found that the Farm Bureau personal liability policy excluded coverage of this accident.

AUTOMOBILE LIABILITY POLICY

The Plaintiff further asserts that because Guillotte was using a tractor belonging to Duhon to haul his cane, rather than his own tractor, the provisions of the policy providing for coverage of a temporary substitute vehicle are applicable here. The policy provides that:

While the described automobile is withdrawn from use, such insurance as is afforded by this policy applies to another automobile not owned by or furnished for regular use of the named insured or spouse, or member of same household, while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.

Plaintiff asserts that since the policy does not define “temporary substitute vehicle,” the provision is ambiguous and should be interpreted so as to grant coverage.

An insurance policy is a contract between the parties. It should be construed by using the general rules for the interpretation of contracts as set out in the Civil Code. The role of the judiciary in interpreting [ ¡^insurance contracts is to ascertain the common intent of the parties to the contract. A court is to determine the common intent of the parties in accord with the general, ordinary, plain and popular meaning of the words used in the policy. Louisiana Insurance Guaranty Association, v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759.

Caldwell v. Farwell Contracting, 02-0406, p. 3 (La.App. 5 Cir. 10/16/02); 831 So.2d 332, 333-34.

The uncontroverted affidavit of Donald Guillotte, owner of the vehicle described in the policy and named insured under the policy, shows that:

On October 1,1997 my 1981 Freightliner truck described in Farm Bureau policy no. A466610 and my 1979 International truck described in Farm Bureau policy no. A443411 were fully operational, being used in connection with my farming operations, were not disabled and had not been withdrawn from use.

Therefore, we find that the trial court was correct in finding that no question of material fact remains but that the truck involved in the accident was not a temporary substitute vehicle for the purpose of coverage under the Farm Bureau automobile policy.

DUTY TO DEFEND

The Plaintiff further asserts that the trial court erred in faffing to recognize that, in settling with Plaintiff, Guillotte assigned his right to be defended by Farm Bureau to the Plaintiff. The insured need not prove that the outcome of the suit will necessarily impose liability for plaintiffs claims. Rather, the duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213; Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.3/31/99), 731 So.2d 482. In this case, the record is clear that Farm Bureau provided defense [ Rto Guillotte, thereby discharging its duty. As a result, no claim regarding Farm Bureau’s duty to defend could have been assigned to the Plaintiff.

CONCLUSION

Therefore, we find no error in the trial court’s conclusion that no issue of material fact remains but that the Farm Bureau comprehensive personal liability and automobile policies at issue herein do not afford coverage for the accident made the basis of this suit.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff.

AFFIRMED.


author: | THIBODEAUX, Judge.

text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., d/b/a Lake Area Medical Center.
    No. 02-987.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Oliver “Jackson” Schrumpf, Law Offices of Oliver “Jackson” Schrumpf and Charles Schrumpf, Sulphur, LA, for Plaintiffs/Ap-pellees, Susan Arrington, et al.
    Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellant, Galen-Med, Inc., d/b/a Lake Area Medical Center.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   | THIBODEAUX, Judge.

In this suit for medical malpractice, defendant, Galen-Med, Inc., d/b/a Lake Area Medical Center (“LAMC”), appeals the judgment of the trial court rendered pursuant to a jury verdict. The jury found that LAMC was liable for the negligent conduct of Dr. Ricardo Samudia, who failed to properly diagnose Billy Arrington with pulmonary embolism, resulting in his death. Additionally, defendant asserts that the jury verdict form was misleading, ambiguous, and confusing as to the apportionment of liability, resulting in a verdict contrary to the law and evidence presented to the jury.

We disagree. We find that the jury’s verdict is reasonable and that the trial court judge properly denied LAMC’s motion for J.N.O.V. on the issue of the alleged misleading jury verdict form. Great deference is given to the trial court on questions of fact. We may not set aside a jury’s findings of fact absent manifest error. Stobart v. State through Dep’t of Transp., 617 So.2d 880 (La.1993).

I.

ISSUES

We shall consider the following issues on appeal:

(1) whether the trial court erred in finding that Galen-Med, Inc., d/b/a Lake Area Medical Center is liable for the negligent conduct of Dr. Ricardo Sa-mudia?
(2) whether the trial court erred in not finding the verdict sheet misleading, ambiguous, and confusing?

FACTS

On October 25, 1994, Billy Arrington arrived at the emergency room of Lake Area Medical Center complaining of shortness of breath. The attending physician, Dr. Ricardo Samudia, examined, treated, prescribed medication, and released Mr. Arrington with instructions to follow-up with his family physician. Dr. Samudia, an independent contractor of LAMC’s emergency room, had worked an 18-hour shift at Calcasieu Cameron Hospital prior to arriving for his shift at LAMC. Plaintiff, Susan Arrington , asserted that Dr. Sa-mudia was clearly impaired when he treated her husband in the emergency room. Plaintiff relies particularly on the American College of Emergency Physicians (“ACEP”) guidelines which state that shifts longer than 12 hours for emergency room physicians should be avoided wherever possible. Dr. Samudia had literally worked almost 24 hours from October 23-24, 1994, before treating Mr. Arrington.

LAMC had formed a contract with E.R. Physicians Group, Inc. (“ERPG”), a physician service provider, to provide qualified emergency room physicians for administering medical care to its patients. The thrust of LAMC’s argument is that Dr. Samudia, as an independent contractor, was not an employee of the hospital. It, therefore, cannot be held vicariously liable for the actions of this physician. LAMC asserts that patients of the emergency room were aware of the physicians’ status as independent contractors. In opposition, plaintiff asserts that LAMC has a duty of care to its patients, which includes the prevention of unsafe and 13hazardous conditions. Plaintiff asserts that the failure to prevent a physician who is clearly impaired from administering medical care is an unsafe condition.

Mr. Arrington continued to suffer from shortness of breath and other symptoms when he returned home. The gravity of the symptoms required calling an ambulance to his home on October 28, 1994. Attempts to resuscitate Mr. Arrington failed. He died that same day in the emergency room of LAMC. A coroner’s report indicated that the cause of death was pulmonary embolism or blood clots within the lungs.

Plaintiff, Susan Arrington, filed a medical malpractice claim with the Louisiana Patient’s Compensation Fund. Asserting several causes of action against Dr. Samu-dia and LAMC, the plaintiff asserted that Mr. Arrington’s death was a direct result of Dr. Samudia’s failure to recognize the severity of his condition, to administer tests which would have indicated the seriousness of his illness, to diagnose him with pulmonary embolism, to admit him to the hospital, to consider his treating physician’s, Dr. Paul Comeaux’s, orders, and failure to have him examined by a specialist. After convening a panel of the Medical Review Board, the majority of the panel found that Dr. Samudia failed to meet the appropriate standard of care as charged in the plaintiffs complaint and that Dr. Samudia’s conduct was directly related to Mr. Arrington’s death.

On February 19, 1999, Dr. Samudia, ERPG, and Evanston Insurance Company settled with the plaintiff for $100,000. On August 15, 2000, the Louisiana Patient’s Compensation Fund also settled with the plaintiff for $390,000 plus $90,000 in interest and $20,000 in costs on behalf of Dr. Samudia and ERPG. All defendants were able to resolve their disputes outside of trial, except LAMC.

14At trial, the jury rendered a verdict in favor of the plaintiffs. LAMC was apportioned 20% of the liability for the actions of its ER nurse, and was held 60% liable for the conduct of Dr. Samudia. The remaining 20% fault was apportioned to ERPG. The trial judge entered judgment based on the jury’s verdict. LAMC timely filed a motion for J.N.O.V. The trial court denied the J.N.O.V. LAMC now appeals.

III.

LAW AND DISCUSSION

Hospital Liability for Conduct of ER Physician

Appellant asserts that the jury erred in finding LAMC responsible for the actions of Dr. Samudia. We disagree.

LAMC’s chief argument is that it is not responsible for the actions of Dr. Samudia, an independent contractor. LAMC relies on the Professional Services Agreement entered into by and between ERPG and LAMC to demonstrate that the hospital possessed no apparent authority over their ER physicians to deem them employees of LAMC.

In Powell v. Fuentes, 34,666 (La.App. 2 Cir. 5/9/01); 786 So.2d 277, writ denied, 01-1675 (La.9/21/01); 797 So.2d 674, the second circuit addressed the issue of whether a hospital was liable for the actions of an emergency room physician, who was an independent contractor. In Powell, the plaintiff was treated in the emergency room of Winn Parish Medical Center (‘WPMC”) for an injury to her right foot. Dr. Fuentes, the attending ER physician, failed to x-ray Powell’s foot, and her foot became infected due to a “foreign object that was embedded in the wound.” Id. at 278. As a result of this infection, Powell was hospitalized for eight days. Plaintiff filed suit against Dr. Fuentes and WPMC for failure to remove the foreign object from her foot resulting in infection. Like LAMC, WPMC alleged that Dr. Fuentes Rwas an independent contractor, rather than an employee of the hospital. Consequently, it should not be held liable for the acts of Dr. Fuentes.

In Powell, the second circuit applied its analysis in Campbell v. Hospital Service District No. 1, Caldwell Parish, 33,874 (La.App. 2 Cir. 10/4/00); 768 So.2d 803, writ denied, 00-3153 XLa.1/12/01); 781 So.2d 558, to resolve this dispute:

Generally, employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed. La.C.C. art. 2320. In contrast, a principal generally is not liable for the negligence of an independent contractor while performing his contractual duties. Two exceptions to this general rule exist: (1) where the work is ultra hazardous; and (2) if the principal reserves the right to supervise or control the work of the independent contractor.
Of primary concern is whether the principal retained the right to control the work. The important question is whether, from the nature of the relationship, the right to do so exists, not whether supervision and control was actually exercised. The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.
The existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital, and courts will inquire as to the real nature of the relationship and the degree of control exercised or ability of control by the hospital over the doctor’s activities. Whether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercised by the hospital over his activities. In fact, “[a] hospital’s duty and corresponding liability for breach of that duty is in direct proportion to its right to control the medical treatment rendered there.”

Powell, 786 So.2d at 281-82 (quoting Campbell, 768 So.2d at 807) (Citations omitted) (Emphasis added).

Like LAMC, WPMC submitted a copy of its agreement with Southern Emergency Physicians (“SEP”), who employed Dr. Fuentes. Also, a copy of LWPMC’s bylaws was filed by the plaintiff. Emergency room physicians of WPMC were considered medical staff, having medical staff privileges. Additionally, the hospital was responsible for credentialing the doctors who worked in the emergency room, though they worked under SEP. Further, the agreement stated that all supplies, equipment, and facilities would be furnished by the hospital. WPMC was also responsible for maintaining medical records and for billing patients. As a result, the second circuit concluded that the “documents demonstrate^] that Dr. Fuentes was bound by WPMC rules which controlled the activities of an emergency room physician.... Based upon this record, WPMC [was] not entitled to summary judgment.” Id. at 283-84.

We find that there are similar provisions in the agreement between LAMC and ERPG, demonstrating LAMC’s right to control and supervise their emergency room physicians. Under Section 5.5 of the Professional Services Agreement, LAMC retained “responsibility for the performance of [the] Contractor [ERPG] and [the] Contractor’s representatives [ER physicians] as and to the extent required by law and the accreditation standards applicable to Facility [LAMC].” Additionally, each physician that worked for LAMC “must be accepted by the Facility’s Chief Executive Officer.” LAMC was also responsible for the billing of patients and the maintaining of patients’ records. ERPG had no involvement in these matters. Additionally, LAMC was responsible for providing “the space for the service plus any expendable supplies, equipment, and services necessary for the proper operation of the service.” Further, “[t]he Director of the Service [ERPG] shall direct and supervise the technical work and services of such department personnel.... However, Facility [LAMC] retains full administrative control and responsibility for all such Service personnel.”

|7We also find, as in Powell, evidence that LAMC considered its emergency room physicians as medical staff and that these physicians were subject to the “Rules and Regulations of The Medical Staff of Lake Area Medical Center.” Under Section VII, Emergency Services, “Emergency Services will be provided by contract physicians who will be members of the organized Medical Staff. They will be credentialed by the Department of Medicine by the process specified in the Medical Staff Bylaws.” We further find that the director of emergency services also had the right to monitor emergency patient care and take proper action based on its findings. From this evidence, we can conclude that LAMC had apparent authority over the actions of Dr. Samudia. As stated in Campbell, 768 So.2d at 810 (citations omitted) (footnote omitted):

We find this situation-the providing of emergency services-distinguishable from that of a surgeon or other doctor holding hospital privileges contracting with a patient, where the physician is typically held to be an independent contractor. This is because the patient is seeking treatment through a hospital emergency room with no choice as to treating physician. In fact, other states have long questioned the propriety of permitting hospitals to shield themselves from liability by labeling their emergency room physicians as “independent contractors,” imposing liability upon hospitals despite independent contractor relationships erected to shield them from liability. This is because an apparent, or ostensible agency is created by a hospital “holding itself out” as a full service facility and creating the image that its physicians are employees of the hospital, and not independent contractors.... “[I]t would therefore be patently unfair to bind the patient to the ramifications of a contract that is neither public knowledge or applicable to all emergency room situations between a physician staffing service and the hospital.”

For the above reasons, we find that the jury’s findings of fact are reasonable, and its imposition of liability upon LAMC was not manifestly erroneous; indeed, it was manifestly correct.

IsJury Verdict Form

LAMC asserts that the verdict sheet given to the jury was confusing, misleading, and ambiguous. We disagree.

On November 16, 2001, the jury returned a verdict apportioning 60% of the fault to the actions of Dr. Samudia, 20% to LAMC for the conduct of its ER nurse, and 20% to ERPG. According to the appellant, the jury’s verdict can be interpreted in two ways. Appellant asserts that the verdict can be interpreted that (1) LAMC is liable for 20% of fault and Dr. Samudia is 60% at fault or that (2) LAMC is liable for both the 20% of fault attributable to the hospital and Dr. Samudia’s 60% of fault totaling 80%. Even if appellant’s contentions are true, this court cannot properly address this issue. We find no evidence in the record that defendant objected to the jury instructions pursuant to La.Code Civ.P. arts. 1793 and 1812.

The Court:
At this time, we will go ahead and have any arguments or comments on the jury instructions and the verdict form. We’ll start with Mr. Schrumpf.
Mr. Schrumpf:
Your honor, I don’t have any objections. I thought they were fair and reasonable. The Court:
Mr. Shelton?
Mr. Shelton:
Your honor, as far as the jury charge, I had no problem with that. The verdict sheet, as we discussed yesterday and again this morning, I had a couple of issues on that. The first question, as we discussed yesterday, I thought actually should be two separate questions.... Secondly, ... I thought there should have been an additional word in there before “contribute” saying did it “substantially contribute”? That’s the only objection.
Mr. Mount:
|9... I would join Mr. Shelton in that objection to Question No. 1 on the verdict sheet. And then I ... would object to the Court not including in its charge the submitted charges of No. 5, 16, 17, and 20 on behalf of Lake Area Medical Center and ask that these charges be made a part of the record.
The Court:
Let those be made a part of the record and let the objection be noted. And the Court, of course, feels like the instructions given fairly represent both side and the law in the case.

In the record, we find that objections were made as to the verdict form regarding sentence structure (making one sentence into two sentences) and the addition of a word. However, no objection was made in reference to the verdict form being ambiguous, misleading, or confusing. “By failing to object to any alleged flaws in the interrogatories before the jury retired, plaintiffs have waived the objection on appeal. La.Code Civ.P. art. 1812.” Sampson v. Lemoine, 94-1568, pp. 2-3 (La.App. 3 Cir. 5/3/95); 657 So.2d 181, 183.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court pursuant to a jury verdict finding Lake Area Medical Center responsible for the actions of Dr. Ricardo Samu-dia is affirmed. All costs are assessed to the defendant-appellant, Galen-Med, Inc., d/b/a/ Lake Area Medical Center.

AFFIRMED.

      . Billy Arrington's widow, Susan Arrington, filed suit individually and on behalf of her two daughters, Joelle Arrington and Laura Arring-ton, who is now a major. Since Mrs. Arring-ton filed suit on behalf of her daughters, we will refer to her as the plaintiff.


author: hAMY, Judge.

text:
    Katherine STELLY v. Frank Joseph GUIDROZ, Jr.
    No. 02-0962.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      David L. Carriere, Opelousas, LA, for Plaintiff/Appellant, Katherine Stelly.
    Howard C. Dejean, Opelousas, LA, for Defendant/Appellee, Frank Joseph Gui-droz, Jr.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   hAMY, Judge.

The trial court ruled that monthly payments received by the defendant in consideration for settlement of his 1982 Jones Act claim were his separate property. For the following reasons, we affirm.

Factual and Procedural Background

The parties in this case dispute whether annuity payments received by Frank Gui-droz, Jr. after September 1, 1999, should be classified as separate or community property. Frank Guidroz, Jr. and Katherine Stelly were married on May 23,1971. On March 16, 1982, Mr. Guidroz was injured in a maritime accident. As a result, Mr. Guidroz and Ms. Stelly brought a Jones Act claim in federal court on May 29, 1984, against Anderson-Barnett Drilling Co., Inc. and Standard Steamship Owner’s Protection and Indemnity Association (Bermuda), Ltd.

This action ultimately settled out of court. First, the settlement agreement provides that $220,000 was paid directly to Mr. Guidroz and Ms. Stelly. Second, the settlement agreement discloses that Anderson-Barnett and Standard Steamship agreed to make monthly payments to Mr. Guidroz. Specifically, the settlement agreement indicates that the payments were made in the following manner: (1) $1,500.00 per month for a period of five years commencing in September of 1985; (2) $1,700.00 per month for a period of five years commencing in September of 1990; (3) $1,900.00 per month for a period of five years commencing in September of 1995; (4) $2,100.00 per month commencing in September of 2000. These payments were to continue throughout the life of Mr. Gui-droz. In the event of Mr. Guidroz’s death, the payments were guaranteed to a designated beneficiary for the first twenty years from the date of the settlement. Notably, the record indicates that Anderson-Barnett and Standard Steamship assigned the obligation for the monthly payments to First Federal r¡.Executive Corporation. The record further indicates that First Federal Executive acquired an annuity to fulfill its obligation to make the monthly payments, naming Mr. Guidroz the annuitant.

On September 1, 1999, Ms. Stelly filed for divorce, and the trial court rendered judgment granting the divorce on March 24, 2000. On November 13, 2000, all issues regarding the partition of the community property were resolved except for the monthly payments received by Mr. Gui-droz from the annuity. Mr. Guidroz claimed that the remainder of the annuity was his separate property. On the other hand, Ms. Stelly contended that the annuity was community property and claimed that she was entitled to fifty percent of the monthly payments. The trial court denied Ms. Stelly’s claim to the payments and provided, in part, the following written reasons for judgment:

According to the settlement disbursement sheet, in addition to the annuity, Frank and Kathy received $66,142.32 in cash out of the total cash recovery of $220,000, after paying $139,986 in legal fees and $13,871.62 in expenses. From September of 1985 up through August of 1999, for a period of fourteen (14) years, the community enjoyed the benefit of $283,200 from the annuity. As of the date of the filing of their petition for divorce, and for the benefit of the community, Frank and Kathy received $66,142.32 in cash (up front) and $283,200 from the annuity for an aggregate cash amount of $349,342.32, after paying $139,986 in legal fees and $13,871.68 in expenses. From the standpoint of the legally required equitable apportionment, considering these figures, the (up front) cash and the annuity, it cannot be said that the community did not receive its fair share of the settlement and that Kathy was not adequately compensated for her loss of consortium claim. It must be understood that out of the settlement, Frank has a viable legal claim to be compensated individually, as his separate property, for physical and mental pain and suffering, physical disability and post-dissolution loss of wages, loss of earning capacity and potential future medical expenses as a result of his back fusion. It is also noteworthy that, though the annuity is for the rest of Frank’s life, it is only guaranteed for twenty (20) years, and the cash for 14 of those 20 years has already been received and enjoyed by the community. Considering all of the cash enjoyed by the community during said 14 year period, it could easily be argued that perhaps Frank has a claim against the 13community for his separate funds being used for the benefit of the community, but that is not before the court. Furthermore, and only from a realistic standpoint, if Frank were to pass away, there would only be six (6) years (30%) left on the annuity from September 1, 1999, to be claimed by his estate as his separate property.
Considering the cash and benefits received by the community and the parties from said settlement up until September 1, 1999, the community got its fair share out of said settlement, and the remainder of said settlement (from September 1, 1999, forward) must be classified as Frank’s separate property in order for him to at least receive his fair share of the settlement for his personal back injury, pain and suffering, physical disability, loss of future earnings and/or earning capacity and future medical expenses. If this court were to designate the annuity as community property, then none of the settlement would be Frank’s separate property and he would get nothing for his pain and suffering, physical disability, loss of enjoyment of life, further loss earnings and/or earning capacity and future medical expense. According to the law applicable in this case and considering the facts in this case, the court is required to equitably apportion pre-dissolution and post-dissolution losses for which compensation has been received pursuant to personal injury settlement.
In order to achieve equitable apportionment in this matter, the court designates and classifies the annuity payments subsequent to September 1, 1999, as Frank’s separate property, and monies received prior thereto as community property.

Ms. Stelly now appeals, alleging the following assignments of error:

1.The trial court erred in violating LSA-C.C. Articles 2338, 2340, and 2341 by not classifying an annuity acquired by the parties during the marriage with community funds and separate property as a community asset when the amount of community funds used to acquire the annuity contract was substantial (i.e. not inconsequential).
2. Alternatively, the trial court erred in failing to find that the annuity was a mixed asset, due to a retroactive application of LSA-C.C. Article 2341.1, and in not awarding Kathy [Stelly] her percentage of the annuity and the resulting payments.
3. The trial court abused its discretion in failing to admit into evidence the federal suit record from the parties’ personal injury lawsuit when it contained relevant evidence of the nature of the claims asserted by the parties.

|4Discussion

Classification of Personal Injury Damages

In her brief, Ms. Stelly argues that the trial court should apply La.Civ. Code arts. 2338, 2340, and 2341 to classify the annuity contract as community property because consequential community funds were used to acquire the annuity. As such, Ms. Stelly asserts that she is entitled to fifty percent of the future annuity payments. Ms. Stelly alternatively argues that the trial court should retroactively apply La.Civ.Code art. 2341.1 to classify the annuity as a mixed asset since consequential community funds were used to fund the annuity. However, we note that the arguments presented by Ms. Stelly assume that the annuity contract was acquired by Mr. Guidroz and Ms. Stelly. Our review of the record reveals that the application for |Bthe annuity lists First Federal Executive as the owner and Mr. Guidroz as the annuitant. Thus, the annuity, itself, cannot be classified as the separate or community property of Mr. Gui-droz because he did not own it. Rather, First Federal Executive acquired the annuity to render the performances required by the obligations of the settlement agreement.

“An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee.” La.Civ.Code art. 1756. “Performance may consist of giving, doing, or not doing something.” Id. “An obligation is conjunctive when it binds the obligor to multiple items of performance that may be separately rendered or enforced.” La.Civ.Code art. 1807. “In that case, each item is regarded as the object of a separate obligation.” Id. “Performance by the obligor extinguishes the obligation.” La.Civ.Code art. 1854. When the obligor fails to perform, the obligee may have the right to “[ejnforce the performance that the obligor is bound to render.” La.Civ.Code art. 1758. “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing.” La.Civ.Code art. 477. “The owner of a thing may use, enjoy, and dispose of it within the limits and under conditions established by law.” Id.

The settlement requires multiple performances of the delivery of money on a given schedule. Until delivery of a specific payment, Mr. Guidroz did not have the direct, immediate, and exclusive authority over the money; nor could he use, enjoy and dispose of the money until it was in his possession. Yet, as the obligee, Mr. Gui-droz did have the right to receive the money and possibly demand performance upon the obligor’s failure to deliver. Therefore, while Mr. Guidroz did not own the payments of money until delivery, he nevertheless owned the right to receive and Impossibly demand the performances on a given schedule created by the settlement agreement. See La.Civ.Code art. 473.

After reviewing La.Civ.Code arts. 2338, 2340, 2341, 2341.1 and 2344, as well as the facts and circumstances of this case, we conclude that the proper focus should be upon La.Civ.Code art. 2344. La.Civ.Code art. 2344, entitled “Offenses and quasi-offenses; damages as community or separate property,” provides:
Damages due to personal injuries sustained during the existence of the eom-munity by a spouse are separate property.
Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.

(Emphasis added.) Furthermore, the comments to La.Civ.Code art. 2344 provide:

(a) The notion of personal injury includes injuries to the personality of a spouse and worker’s compensation benefits.
(b) ... An award of damages may be partly community and partly separate property of the injured spouse. Apportionment of the award between the community and the separate property of the injured spouse is required when the community terminates otherwise than by the death of the injured spouse. The noninjured spouse does not, ordinarily, have an interest in the portion of the award designed to compensate the injured spouse for loss of earnings that would have accrued after the termination of the community property regime. This segment of the award, which would fall into the community during the existence of a community property regime, upon termination of the regime is classified as the separate property of the injured spouse. ...

(Emphasis added.)

In the federal court action, Mr. Guidroz sought recovery for: (a) loss of earnings and income earning impairment — past, present, and future; (b) physical and mental pain, suffering, and anguish; (c) permanent physical disability and inability |7to enjoy the normal pleasures and pursuits and life; and, (d) future medical expenses. Ms. Stelly sought damages for loss of consortium. In contrast to the $220,000.00 lump sum payment which was made to Mr. Guidroz and Ms. Stelly, the settlement agreement provides that the monthly payments were to be made to only Mr. Gui-droz. The settlement does not address the amounts that would be apportioned for each type of damages. Nevertheless, only the payments made after the termination of the community are in dispute, and the community is entitled to only that portion of the monthly payments that represent community losses which accrued prior to termination of the community. In light of the types of damages claimed by Mr. Gui-droz in his Jones Act claim, the community would only be entitled to the portion of monthly payments representing loss of earnings and income impairment during the existence of the community.

At the time the community was dissolved, Mr. Guidroz had received $283,200 in monthly payments during the existence of the community regime. Due to the $220,000 lump sum payment and the $283,200 received during the existence of the community, it was reasonable for the trial court to conclude that the pre-dissolution losses to the community had been satisfied when considering the types of damages that Mr. Guidroz was seeking. Further, although Mr. Guidroz entered the settlement agreement during the existence of the community regime, his right to receive and possibly demand the delivery of money would only accrue in accordance with the payment schedule. The payment schedule also appears to be designed to compensate Mr. Guidroz for loss of future earnings and/or earning impairment as if he continued to work. Since these damages, as well as the monthly payments, would accrue after termination, the community would have no interest in these payments. Accordingly, |sin light of the provisions of La.Civ.Code art. 2344 and the terms of the settlement agreement, we conclude that the trial court did not err in ruling that all monthly payments made after September 1, 1999 are the separate property of Mr. Guidroz as those payments and damages accrued after the termination of the community property regime.

Relevance of the Federal Court Record

In support of her third assignment of error, Ms. Stelly asserts that the trial court abused its discretion by failing to admit the federal record from Mr. Gui-droz’s personal injury lawsuit. As a result, Ms. Stelly urges this court to reverse the trial court’s ruling. We find that this assignment of error lacks merit.

When reviewing a trial court’s evi-dentiary determinations, “an appellate court must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced the complainant’s cause, for unless it does, reversal is not warranted.” Greene v. Taylor, 01-1137, p. 4 (La.App. 3 Cir. 2/27/02); 809 So.2d 1187, 1191, writ denied, 02-975 (La.4/26/02); 814 So.2d 567(quoting State Farm Mut. Auto. Ins. Co. v. Little, 34-760, p. 5 (La.App. 2 Cir. 6/20/01); 794 So.2d 927, 930.) “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Unless otherwise provided by law, all relevant evidence is admissible. La.Code Evid. art. 402. On the other hand, evidence which is not relevant is not admissible. Id. In addition, La.Code Evid. art. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

|3When Ms. Stelly’s counsel attempted to admit the federal court record of the personal injury action, Mr. Guidroz’s counsel raised a relevancy objection. Thereafter, the following exchange occurred between the trial court and Ms. Stelly’s counsel:

THE COURT: And let me ask you this question. What in there do I need to make a determination regarding this annuity question, Mr. Carriere?
MR. CARRIERE: As far as I’m concerned, Judge—
THE COURT: Yes, sir.
MR. CARRIERE: — nothing
THE COURT: They [sic] why do you do this?
MR. CARRIERE: Because it’s not just you that may look at this record, and you and the Court of Appeals may disagree with' — ■
THE COURT: Well, if you’re not going to argue to me something that’s relevant in there, are you going to argue something to them that’s relevant?
MR. CARRIERE: I have found that in my practice many time that both the court and the Court of Appeals finds [sic] things to be important that I myself may not have deemed important; and, for the sake of completeness, that’s why this is being offered. I understand the court’s ruling—
THE COURT: So it may be important down the road, but it’s not important now?
MR. CARRIERE: I understand.
THE COURT: And I do not want to be arbitrary and say that, hey, you have some good evidence that is necessary for this court to consider in making the determination, I want all the evidence that would help me in making the proper legal determination in this matter. I just don’t see anything that could possible be in there that could help me in the determination. And you’re arguing to me that, well, you look at it this way, but others may look at it another way and they may think that it’s — that it is important. But, I find that interesting that you — that you don’t think it’s important now, but they may think it’s important down the road and it may be a factor in determining this case. I want them to |inhave it available to them. For me, I want to avoid the unnecessary costs in this particular matter, and I think that that overrides it. Let’s call it a 403 matter that the — the irreparable harm exceeds the prejudicial effect. Let’s bring it into a legal matter so we can at least have something for determination. I consider it to be a 403 matter that the prejudicial — the irreparable harm would be the unnecessary expense to these parties for the Federal court case because we’re not fighting over the Federal court case.

In light of this exchange between the trial court and Ms. Stelly’s counsel, we find that the trial court’s exclusion was not erroneous.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff-appellant, Katherine Stelly.

AFFIRMED.

      . La.Civ.Code art. 2338 provides:
      The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Articles 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

      . La.Civ.Code art.2340 provides:
      Things in possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

      .La.Civ.Code art.2341 provides:
      The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

      . La.Civ.Code art.2341.1 provides, in part:
      B. In property in which an undivided interest is held as community property and an undivided interest is held as separate property, each spouse owns a present undivided one-half interest in that portion of the undivided interest which is community and a spouse owns a present undivided interest in that portion of the undivided interest which is separate.


text:
    James T. JOHNSON v. SUNBELT BUILDERS, INC.
    No. 02-0959.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Kevin Louis Camel, Cox, Cox, Filo and Camel, Lake Charles, LA, for Plaintiff/Appellant: James T. Johnson.
    Troy Aaron Broussard, Allen & Gooch, Lafayette, LA, for Defendant/Appellee: Sunbelt Builders, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   hAMY, Judge.

Workers’ compensation claimant filed a disputed claim for compensation. The defendant filed a motion for summary judgment, and the court granted that motion. For the following reasons, we affirm.

Factual and Procedural Background

This case arises out of an alleged work-related injury in Leesville, Louisiana. The claimant, James T. Johnson, filed a disputed claim with the Office of Workers’ Compensation on September 14, 2001. This claim lists Sunbelt Builders, Inc. as his employer and Ohio Casualty Group as the insurer of Sunbelt Builders, Inc. According to this claim, the claimant injured his mid and lower back while lifting a commercial, industrial grill on February 16, 2001. On January 14, 2002, the defendant filed a motion for summary judgment alleging that there was no genuine issue of material fact as to whether the claimant suffered from any disability. The claimant responded by filing a memorandum in opposition to the motion for summary judgment. But, the claimant did not file any affidavits, depositions, answers to interrogatories, or admissions on file to support his argument. At the contradictory hearing which was held on March 20, 2002, the claimant again stated that he did not have any offerings for the trial court to consider. Yet, on June 13, 2002, the claimant filed a Motion to Supplement the Record with a report from Dr. David Steiner. Review of the record indicates that the claimant’s counsel never mentioned this report or examination during the summary judgment hearing. The trial court denied the claimant’s motion to supplement the record and granted the defendant’s motion for summary judgment. The claimant now appeals, alleging the following assignments of error:

1. The hearing officer erred in finding that the defendants’ met their burden of proving the absence of a material issue of fact, given that |?Mr. Johnson’s testimony directly contradicts the insubstantial evidence submitted by Ohio Casualty.
2. The hearing officer erred in failing to consider Dr. David Steiner’s narrative report in connection with defendants’ motion for summary judgment.

Discussion

Standard of Review

The standard of review for a motion for summary judgment is de novo. Goins v. Walr-Mart Stores, Inc., 01-1136 (La.11/28/01); 800 So.2d 783. In other words, the appellate court will use the same criteria that govern the trial court’s consideration and determine whether summary judgment is appropriate. Id. La. Code Civ.P. art. 966 provides, in part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed.... The defendant’s motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memoranda in support thereof shall be served pursuant to Article 1313 at least four days prior to the date of the hearing unless there are local rules of court to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.
C.(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and |sthat the mover is entitled to a judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Interpreting La.Code Civ.P. art. 966(C)(2), a panel of this court stated:

Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under Art. 966(C), once the mover had made a pri-ma facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Hayes v. Autin, 96-287, p. 6 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97); 690 So.2d 41. Thus, we must determine: (1) whether the defendant has met its initial burden by showing that no genuine issue of material fact exists and that the defendant is entitled to a judgment as a matter of law; and, if so, (2) whether the claimant failed to produce evidence of a material factual dispute.

Disability

In addition to an injury arising out of the course and scope of employment, a worker’s compensation claimant must show that the claimant’s alleged injury requires medical treatment or renders the claimant disabled. Stein Mart v. Prejean, 01-718 (La.App. 3 Cir. 10/31/01); 798 So.2d 1230. “Disability can be proven by both medical and lay testimony, and the workers’ compensation judge must weigh all of |4the evidence in order to determine whether the employee has met his burden of proof of this element.” Honeycutt v. Elbert Walker Construction, 01-1291, p. 4 (La.App. 3 Cir. 2/6/02); 815 So.2d 1011, 1014. Yet, the claimant will be required to introduce some objective medical evidence to support a finding of disability. Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95); 657 So.2d 449.

The defendant’s motion for summary judgment alleges that there is no genuine issue of material fact as to whether the claimant suffered from any disability. Specifically, the defendant argues that there is no medical evidence to support a finding of a disability. The defendant further asserts that the claimant’s choice of physician opined that the claimant was capable of returning to work without restrictions. To support its motion for summary judgment, the defendant submitted several exhibits.

First, Exhibit A is the deposition of the claimant. It provides that the claimant began to receive disability benefits from the workers’ compensation carrier after the accident. The claimant also stated that he initially received treatment from Dr. Mong. Thereafter, Dr. Mong referred the claimant to an orthopedic specialist, Dr. DeLapp. Once the workers’ compensation carrier requested a second medical opinion, the claimant said that he was sent to see Dr. Austin Gleason in Shreveport, Louisiana.

Dr. Gleason recommended a different treatment plan than Dr. DeLapp. As a result, the claimant stated that he told his medical case manager, Diane Paulke, that he “was willing to try his methods to see if maybe he could find out what was wrong or diagnose the problem.” The claimant stated that, despite his continued complaints of back pain, Dr. Gleason released him to full duty employment on August 14, 2001. | ¡^Consequently, the workers’ compensation carrier discontinued disability benefits at that time.

The claimant further stated that, after his disputed claim for compensation was filed, he returned to Dr. Gleason in an attempt to cooperate with the defendant on November 28, 2001. The claimant told Dr. Gleason that his condition was unchanged from the time of the accident and that he was still experiencing severe back pain. Due to this severe pain, the claimant stated that he could not work. Nevertheless, the claimant stated that Dr. Gleason again ordered him to return to work.

Second, Exhibit B is the affidavit of Diane Paulke. It provides that Ms. Paulke was the claimant’s medical case manager. The affidavit additionally provides that, after the initial appointment ■with Dr. Gleason, the claimant indicated that he would prefer to continue treatment with Dr. Gleason.

Lastly, the defendant contends that Exhibits C and D stand as uncontroverted medical evidence from the claimant’s choice of physician, Dr. Austin Gleason, that the claimant does not suffer from any disability. Exhibit C appears to be a handwritten note on a prescription pad from Dr. Gleason’s medical office, Orthopedic Specialist of Louisiana, for James Johnson to return to “full duty” work on “8/14/01.” Exhibit D is a document also from Dr. Gleason’s medical office and is entitled “Return-To-Work Report.” This document is dated “11/28/01” and simply provides a handwritten check by the following printed sentence: “Recommended patient return to work with no Limitations [sic].” The defendant argues that these two submissions show that the claimant’s choice of physician opined on two occasions that the defendant did not suffer from any disability. After reviewing the defendant’s | ^submissions in support of the motion for summary judgment, we agree with the trial court’s conclusion that the defendant met its initial burden,

Consequently, the burden shifted to the claimant to present evidence of a material factual dispute. The claimant did not submit any offerings in opposition at the summary judgment hearing; nor did the claimant request additional time to respond. Our review of the record further indicates that the claimant’s counsel never mentioned Dr. Steiner’s report during the summary judgment hearing. Nevertheless, the claimant attempted to supplement the record with Dr. Steiner’s report several days after the hearing. Under these facts and circumstances, the claimant’s motion to supplement the record was properly denied by the trial court, and this court will not consider items that were not introduced into evidence in opposition to the motion for summary judgment. See La. Code Civ.P. art. 966(B); Louisiana Onshore Properties, Inc. v. Manti Resources, Inc., 99-1088 (La.App. 8 Cir. 12/29/99); 755 So.2d 988. Further, in light of the fact that the claimant did not introduce any evidentiary items in opposition to the motion for summary judgment, we find that the trial court correctly granted the defendant’s motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the claimant-appellant, James T. Johnson.

AFFIRMED.


author: 11 COOKS, Judge.

text:
    Kerstin OAKLEY v. Dr. Howard STELLY.
    No. 02-1002.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Dr. Clarence H. Thorton, Jr., Robin Nesbitt, Baton Rouge, LA, for Plaintiff/Appellee: Kerstin Oakley.
    Elizabeth Hollins, Louisiana Department of Justice, Dept, of Risk Management, Lake Charles, LA, for Defendant/Appellant: Dr. Howard Stelly.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and GLENN B. GREMILLION, Judges.
   11 COOKS, Judge.

STATEMENT OF THE CASE

This is a medical malpractice action. Kerstin Oakley sued Dr. Howard Stelly for damages which resulted from having her ovaries removed without her consent.

Ms. Oakley was first diagnosed with Crohn’s disease, a serious intestinal inflammatory disease, in 1984 which necessitated the removal of her large intestines and half of her small intestines in 1994. On May 3, 1995, she was admitted to W.O. Moss Hospital in Lake Charles, Louisiana for a hysterectomy and take down of her ileostomy, both of which were related to her Crohn’s disease. The hysterectomy was to be performed by Dr. Howard Stelly and the take down of her Reostomy was to be performed by Dr. Michael Freeburger.

Following her admission to the hospital, and after having been sedated and prepared for surgery, Ms. Oakley recalled Dr. Stelly asking her something regarding her ovaries. The consent form which Ms. Oakley signed on April 27, 1995 was for an abdominal hysterectomy and authorized Dr. Stelly to “remove my uterus.” It is undisputed the consent form did not address the removal of her ovaries. After the operation, she began experiencing hot flashes and was informed by the nurse she needed a hormone patch. When she questioned the nurse about her ovaries, the nurse told her their removal was necessary due to their diseased condition.

Ms. Oakley remained hospitalized for the remainder of May 1995 to undergo three additional surgeries related to her Crohn’s disease. She was discharged on June 1, 1995. For the next several months, Dr. Stelly continued to provide follow-up care to Ms. Oakley in connection with her Crohn’s disease, later recommending that she undergo yet another surgery to remove her rectum. Ms. Oakley returned to her native Germany in December 1995 for a second opinion. Following a surgical procedure in Germany, her rectum was preserved. Subsequent to surgery, her German physician ^questioned Ms. Oakley about the removal of her ovaries and whether any diagnostic tests were performed to justify their removal. When she informed her physician that no diagnostic tests were performed as a predicate to the removal of her ovaries, the physician informed her it was likely that nothing was wrong with them. It was at this point, in December 1995, that Ms. Oakley began to question the possible misrepresentation of the physical condition of her ovaries by the nurse at W.O. Moss Hospital in May 1995 and the possible malpractice of Dr. Stelly.

A request was made for a medical review panel on December 23, 1996. The medical review panel found Dr. Howard Stelly deviated from the appropriate standard of care and stated:

The evidence supports the conclusion that this defendant failed to comply with the appropriate standard of care as charged in the complaint ... The conduct complained of ... was a factor in the resulting damages.
The record does not specifically reflect that Dr. Stelly spoke with the patient at a time when she was not sedated and explained to her the usual implications of the removal of her ovaries. This would have met the standard of care on informed consent.
The record does not reflect intra operative pathology of the ovaries and the operative report does not reflect it, which might have prompted Dr. Stelly to remove the ovaries as an intra operative decision, and would have obviated the need for informed consent.
In the absence of the consent form of any mention to the patient of the normal implications of removal of the ovaries, the panel must conclude that Dr. Stelly’s removal of the patient’s ovaries fell below the standard of care as to informed consent.

Ms. Oakley filed a malpractice action against Dr. Howard Stelly. Dr. Stelly filed an Exception of Prescription and Ms. Oakley filed a Motion for Partial Summary Judgment on the issue of liability. The trial court denied Dr. Stelly’s Exception of Prescription and granted Ms. Oakley’s Partial Summary Judgment on the issue of liability. Dr. Stelly did not appeal the judgment on liability. The case was tried on the issue of | odamages and the trial court awarded Ms. Oakley $175,000.00 in general damages and $22,588.80 for past, present and future medical expenses. Dr. Stelly appeals the damage award and asserts the trial court erred in denying the Exception of Prescription. For the reasons assigned below, we affirm the decision of the trial court.

ASSIGNMENT OF ERROR NUMBER ONE: PRESCRIPTION

Dr. Stelly contends Ms. Oakley had sufficient information to excite her curiosity about her medical condition in the hospital on May 4, 1995, following her hysterectomy surgery. He argues since Ms. Oakley’s claim is based on lack of consent, she was aware after surgery her ovaries had been removed without her consent; and she was, therefore, placed on notice of the facts giving rise to the malpractice claim in May 1995. Since she did not file for a medical review panel until December 23, 1996, nineteen months later, Dr. Stelly asserts her claim has prescribed.

The prescriptive period for medical malpractice actions is governed by La.R.S. 9:5628 which provides in relevant part:

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

(Emphasis added.)

The statute by its terms provides two prescriptive limitations within which to bring a medical malpractice action; one year from the date of the alleged act or one year from the date of discovery of the alleged act of malpractice. Campo v. Correa, 2001-2707 (La.6/21/02); 828 So.2d 502.

pMs. Oakley contends prescription did not begin to run until December 23, 1996, when a German physician informed her of the likelihood that her ovaries were unaffected by the Crohn’s disease and removal of them was unnecessary. Since the information she received from the German physician contradicted information Ms. Oakley received from the nurse, it was at this point that she began to consider the possibility that Dr. Stelly was negligent in removing her ovaries. An action was instituted within one year from that date.

In Campo v. Correa, 2001-2707 (La.6/21/02); 828 So.2d 502, Dr. Correa performed lumbar surgery on Mr. Campo on April 10, 1991. Within weeks after the surgery, Mr. Campo began experiencing spinal fluid leakage which necessitated an additional surgery to insert a lumbar peritoneal shunt. Dr. Correa continued to treat Mr. Campo for several months. Mr. Campo left Dr. Correa’s care and returned to Dr. Olson, his previous physician. Dr. Olson treated Mr. Campo for pain in the lumbar area and eventually referred him to Dr. Billings, a neurosurgeon. On October 26, 1993, over two years from the date of the lumbar surgery, Dr. Billings examined Mr. Campo and told him Dr. Correa’s use of the lumbar peritoneal shunt was improper. Five months later, on March 1, 1994, Mr. Cam-po filed a medical malpractice complaint with the Patient’s Compensation Fund against Dr. Correa. Dr. Correa filed an exception of prescription contending Mr. Campo was alerted to facts which would have placed a reasonable person on notice that an alleged act of malpractice had occurred. Dr. Correa pointed to the fact that Mr. Campo knew of the spinal leakage immediately following surgery and subsequently developed complications from the shunt surgery, including spinal meningitis. Dr. Correa asserted these facts gave Mr. Campo constructive knowledge in May 1991. The Louisiana Supreme Court disagreed and concluded the spinal fluid leak was “insufficient to arouse Campo’s suspicion that Dr. Correa had committed medical malpractice.” The court articulated 15the rule regarding prescription in a medical malpractice case:

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

Campo v. Correa, 2001-2007, p. 6 (La.6/21/02); 828 So.2d 502.

In Griffin v. Kinberger, 507 So.2d 821 (La.1987), Sharon Anselmo gave birth to a premature baby boy on November 14, 1964. From November to December 1964, the child was placed in an incubator and was administered large amounts of oxygen. Mrs. Anselmo noticed the baby was having eye trouble sometime in 1965 and she brought the problem to the attention of the baby’s pediatrician, Dr. Kinberger, and to the attention of an ophthalmologist. Both doctors consistently reassured Mrs. Anselmo that the eye condition was a natural and expected consequence of the necessary administration of oxygen to premature babies. Mrs. Anselmo testified she had no reason to believe otherwise until October 21, 1982, when she read a newspaper article concerning a malpractice award in Florida involving the negligent I (¡administration of oxygen following a premature birth. She took her child to another doctor who diagnosed retrolental fibroplasia, a condition linked to excessive oxygen use at birth. On August 17, 1983, Mrs. Anselmo filed a malpractice action against Dr. Kinberger. The Louisiana Supreme Court held Mrs. Anselmo, prior to the time she read about the condition in the newspaper, had no reason to relate the child’s eye symptoms to any malpractice on the part of the physicians, especially since the physicians told her the symptoms were the normal result of the necessary administration of oxygen. The court held the doctrine of contra non valentem suspended the running of prescription during the time the cause of action was not known or reasonable known to Mrs. Anselmo. The court held “[c]onstruetive knowledge sufficient to commence the running of prescription, however, requires more than a mere apprehension that something might be wrong.” Griffin v. Kinberger, 507 So.2d at 823. The court found the first point in time when Mrs. Anselmo could have been reasonably alerted that she may have a cause of action against the physician was when she read the newspaper article. Prior to that time she relied on information told to her by physicians regarding her child’s eye condition. “The doctrine of contra non valen-tem therefore suspended the running of prescription during the time that the cause of action was not known or reasonably knowable to plantiffs.” Griffin v. Kinberger, 507 So.2d at 824.

Dr. Stelly contends Ms. Oakley had actual and constructive notice immediately after surgery that her ovaries were removed. The record does not support a finding that Ms. Oakley knew or could have known that Dr. Stelly removed healthy ovaries when he performed the hysterectomy. The consent form signed by Ms. Oakley contained the following language: “I further authorize the doctors to perform any other procedure that in their judgment is advisable for my well being.” We find, Ms. Oakley reasonably believed that the removal of her ovaries was a necessary and unfortunate 17consequence of her Crohn’s disease. Her assumption was confirmed by the nurse following the surgery. Ms. Oakley had a very serious intestinal inflammatory disease which necessitated drastic surgical procedures, including removal of her large intestines and a portion of her small intestines. The hysterectomy scheduled in May 1995 was related to the spread of her Crohn’s disease and she had every reason to assume the information she received from the nurse was, in all likelihood, correct. She would never have consented to the removal of healthy ovaries.

Ms. Oakley trusted Dr. Stelly and assumed if Dr. Stelly removed her ovaries they must have been diseased. In fact, Dr. Stelly only spoke to Ms. Oakley for a brief time following the May 4, 1995 hysterectomy surgery. For the weeks following the surgery she was preoccupied preparing for three additional surgeries and the possible removal of her rectum. We find Ms. Oakley was reasonable in her belief that there was a link between the removal of her ovaries and her Crohn’s disease and that she was justified in not making further inquiries until she learned from her German physician that the removal of her ovaries was, in all probability, unnecessary. She filed for a medical review panel within one year of receiving this information. We find the malpractice action was timely filed.

ASSIGNMENT OF ERROR NUMBER TWO: DAMAGES

General Damages

Dr. Stelly contends the general damage award of $175,000.00 is excessive and not supported by the evidence. The trial court awarded $100,000.00 for the early onset of menopause, and its attendant consequences, including estrogen therapy for twenty-two years, and $75,000.00 for loss of procreativity. The trial judge rejected damage claims for the breakup of Ms. Oakley’s marriage and for fear of breast cancer due to hormone replacement therapy-

The trial court found the testimony of Drs. Patín and Hayes supported a finding |sthat Ms. Oakley would experience the effects of menopause twenty-two years earlier than normal. The trial court stated:

The other element of damages involves surgical menopause and its consequences, including the estrogen therapy, for 22 years. As for the consequences of surgical menopause itself, the court understands from the testimony that even with the estrogen therapy as a limiting factor, plaintiff can expect to experience from time to time hot flashes, vasomotor difficulties, vaginal dryness and atrophy, as well as some decreased well-being libido. Even though the medical evidence was in controversy as to increased risk of cardiovascular disease and gall bladder disease, there is certainly sufficient evidence from the medical testimony to give a reasonable person substantial anxiety concerning cardiovascular and gall bladder disease.
Most significantly, plaintiff is at an increased risk for osteoporosis ... as a result of which she has been ordered to have an annual bone scan.

We find the award of $100,000.00 for the early onset of menopause supported by the record, and we affirm the trial court’s decision.

With regard to the evidence on the issue of damages for loss of procreativity, the trial court concluded:

The court concludes that plaintiff probably would have had one additional child if able to do so. The court must further consider that surrogate motherhood is problematic at best, and that as Dr. Hayes testified, she is not a good candidate for same. Nevertheless, the surgery did remove any possibility for this. Under these circumstances, the court looks upon this as a loss of a chance for another child. Considering existing awards for loss of a child, the court finds that an award of $75,000.00 for loss of surrogate motherhood or loss of the chance of a child is a fair and just amount in this case.

We agree with the trial judge and affirm the award of $75,000.00 for loss of procrea-tivity.

Annual Bone Scan

The trial court concluded the evidence supported a finding Ms. Oakley will require annual bone scans to monitor her bone loss and the possible onset of osteoporosis caused by the surgical onset of menopause. The evidence indicated the cost of a bone scan was approximately $40.00 per month and would be necessary for 1 asixteen years and the judge awarded an amount of $7680.00. Dr. Stelly does not dispute the amount only the necessity. He asserts the drug Fosomax, if taken for seven years will prevent bone loss and eliminate the need for an annual bone scan. We find this contention without merit. The trial court correctly concluded the testimony supported the finding even with drug therapy, an annual bone scan would be necessary to monitor Ms. Oakley’s condition.

DECREE

Based on the foregoing, we affirm the decision of the trial court and assess all costs of this appeal to Dr. Stelly.

AFFIRMED.