author: 1 MAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Macy ALVEY, III.
    No. 2002-KA-1741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.

      Harry F. Connick, District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    Areenious F. Armond, Jr., Gretna, LA, for Defendant/Appellant.
    (Court composed of Judgé CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   1 MAMES F. McKAY III, Judge.

STATEMENT OF THE CASE

The defendant Macy Alvey III was charged by bill of information on December 4, 2001, with theft of property valued at five hundred dollars or more, a violation of La. R.S. 14:67(B)(1). The defendant pleaded not guilty at his December 19, 2001 arraignment. The trial court denied the defendant’s motion to suppress the statement and evidence on January 11, 2002. The defendant was tried by a six-person jury on February 7, 2002, and found guilty of the lesser offense of theft of property valued at three hundred dollars or more but less than five hundred dollars. On March 8, 2002, the trial court denied the defendant’s motion for post verdict judgment of acquittal. That same date the defendant pleaded guilty to being a second-felony habitual offender and was sentenced to eighteen months at hard labor, without benefit of probation or suspension of sentence. The trial court granted the defendant’s motion for appeal on March 15, 2002, permitting the defendant to remain free on an appeal bond. The defendant filed a motion to reconsider sentence on March 28, 2002, which the trial court denied.

\ .FACTS

The defendant was convicted of the theft of a truck bed coyer belonging to Willie T. (jujdry

New Orleans Police Officer Brian Rei-necke arrested the defendant on October 17, 2001. Officer Reinecke was dispatched to a disturbance call at the defendant’s address. Upon arrival, the victim, Willie Guidry, informed officers that parts to his truck, which had been stolen the previous day, were in the defendant’s backyard. The defendant advised officers that he had taken a truck bed cover off an abandoned truck. The defendant took the officers into his backyard and showed them the truck cover. They arrested him for possession of stolen property. Officer Reinecke acknowledged that the defendant did not offer any resistance. Officer Rei-necke admitted that he did not see the victim’s truck.

Officer Eddie Demma testified similarly to Officer Reinecke. He responded to the disturbance call at the defendant’s residence, and was advised by the defendant that he took the truck bed cover because he thought it was an abandoned vehicle.

Willie Guidry testified that in October 2001 he lived on Haynes Boulevard, and owned a 1993 Chevrolet pickup truck. He reported his truck stolen on October 16, 2001. Police notified Guidry the next day that his truck had been recovered — in a vacant lot located around the corner from the defendant’s residence. Guidry asked around and was directed to the defendant’s residence, located approximately one-and-a-half miles from his own residence. Gui-dry knew the defendant by name and face; he had known the defendant’s father, who often had his children with 13him. Guidry said the defendant had complimented him once on his truck. After his truck was stolen, Guidry went to the defendant’s residence. He observed his truck bed cover in the back yard, and notified police. Gui-dry said his customized truck was in beautiful condition, similar to show quality condition. It was in that condition the night before he discovered it had been stolen. He estimated the price of the truck cover at $675; he purchased it the previous May.

The defendant testified on his own behalf. He admitted a 1999 conviction for possession of stolen property. He passed by the truck sitting in an open field as he took his mother to work. It had no taillights, the windows were down, and grass was growing up around it. He said it looked like the truck had not been “messed with” in a while. There were piles of trash at the site, such as tires and old automobile gas tanks. The defendant characterized the area as a dump site. It was approximately five blocks from his residence. The defendant said he was a “Chevrolet man,” that he had Chevrolet trucks in his backyard, and indicated that he knew the truck bed cover would fit one of his trucks, i.e., “the parts are interchangeable.” After dropping off his mother at work, the defendant returned and removed the truck bed cover, put it on top of his car, and drove it back to his residence.

The defendant admitted knowing Willie Guidry through the defendant’s father. However, he denied ever having talked to Guidry about Guidry’s truck. The defendant explained that he had a brother one year younger than him who was the “spitting image” of him, and said they were always being confused for one another. The defendant indicated that it had been at least a couple of years since he had last seen Guidry. The defendant said he would not have taken anything from the truck had he known it belonged to Guidry. He had no grudge against Guidry, |4and acknowledged that Guidry was a friend of the family. The defendant replied in the negative when asked whether he had any hardware to mount the truck bed cover.

The defendant stated on cross-examination that he had never seen Willie Guidry’s truck before. He had known Guidry to have either a gray Blazer or an old gray and red Chevrolet pickup truck. Guidry and the defendant’s father, both mechanics, used to work for the same man. The defendant said he had handed Guidry tools, indicating that he had helped out Guidry in his work. He had known Guidry since he was thirteen or fourteen years old. The defendant replied in the affirmative when asked whether this was the first time he had stopped and taken something from a vehicle he saw. He said he did not pass by the site where the truck was located everyday, but noted that it was always full of junk.

Willie Guidry was recalled by the defendant as a witness. He admitted that the defendant and his brother looked alike. However, Guidry said he knew the defendant better than he knew the defendant’s brother. While he did not see them very much anymore, at one time he used to see them everyday. Guidry was questioned as to whether it could have been the defendant’s brother who complimented him on his truck one day. Guidry first said, “No; not really.” He said that he would have known one from the other, although he conceded that their features were alike.

Willie Guidry said on cross-examination by the State that there was no doubt it was the defendant who complimented him on the truck sometime after May 2001. Guidry said his truck was one of a kind, and noted that the point of customizing it was to make it look unique.

\ ^ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues that the evidence was insufficient to support his conviction, specifically, that the evidence was insufficient to show that he had the requisite specific intent to permanently deprive Willie Gui-dry of the truck bed cover.

This Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such | fthat every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

The defendant was convicted of theft of property valued at three hundred dollars or more but less than five hundred dollars. Theft is defined in La. R.S. 14:67(A) as follows:

A. Theft is the misappropriation or taking of anything of value, which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

La. R.S. 14:67(B) sets the grade of the offense of theft, providing for different sentences according to the value of the misappropriation or taking. La. R.S. 14:67(B)(2) sets the grade of the offense for which defendant was convicted, where the misappropriation or taking amounts to a value of three hundred dollars or more, but less than a value of five hundred dollars or more. The defendant does not argue that the State failed to prove the value of the misappropriation or taking necessary to support his conviction.

The defendant frames his argument as one directed to intent. Theft is a specific intent crime. State v. Hampton, 2000-1002, p. 9 (La.App. 4 Cir. 1/24/01), 782 So.2d 1045, 1052. The specific intent factor of the offense relates to permanently depriving the owner of whatever may be the subject of the misappropriation or taking. Specific intent is defined as “that state of Lmind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1); State v. Scott, 99-0241, p. 7 (La.App. 4 Cir. 1/5/00), 752 So.2d 255, 258-259. Specific intent need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Hebert, 2000-1052, p. 12 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050, writ denied, 2001-1804 (La.3/15/02), 811 So.2d 905.

The defendant’s argument is that he could not have specifically intended to commit the crime of theft because of a mistake of fact — he believed the truck was abandoned. La. R.S. 14:16 states:

Unless there is a provision to the contrary in the definition of a crime, reasonable ignorance of fact or mistake of fact which precludes the presence of any mental element required in that crime is a defense to any prosecution for that crime.

Reasonable ignorance can be a defense under La. R.S. 14:16, but not “unreasonable ignorance.” State v. Henderson, 296 So.2d 805, 807 (La.1974). State v. Rabalais, 99-623 (La.App. 3 Cir. 1/26/00), 759 So.2d 836, presents a case where the court found a mistake of fact and reversed the conviction of a woman convicted of the theft of a pickup truck that was in the possession of her father-in-law. The defendant believed she had a one-half ownership interest in the truck by virtue of a donation inter vivos purportedly executed by her husband, who was serving a three-year sentence for committing a battery on her when she took the truck. The appellate court found that the defendant’s husband had lulled his wife into believing she owned the interest in the truck, and that she reasonably believed she did.

a In the instant case, Willie Guidry testified that at the time his customized 1993 Chevrolet pickup truck was stolen it was in a “beautiful” condition, similar to a show-quality type of truck. He saw it at 11:00 p.m. on October 15, 2001, and discovered at 6:30 a.m. the next morning that it had been stolen. The defendant was found in possession of the truck bed cover on October 17, 2001; he had removed it from the truck that morning. It appears undisputed that the truck was sitting in an empty trash-strewn lot. The defendant said the truck had scratches on it. Willie Guidry admitted that when his truck was recovered it was not in the same condition it had been in before it was stolen, noting that it was scratched up. Officer Eddie Demma said the truck bed cover taken by the defendant was in fair/good condition. There was no direct testimony that the truck had been stripped of, for instance, its tires and wheel rims. It was obvious the track had been abandoned. However, common sense would lead any reasonable person to conclude that this particular truck had been abandoned by the person or persons who stole it, not by its legal owner.

Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant took the bed cover, valued at three hundred dollars or more, but less than five hundred dollars, that he knew belonged to another, without the other’s consent, with an intent to permanently deprive the other person of the bed cover.

There is no merit to this assignment of error.

\ ^ASSIGNMENT OF, ERROR NO. 2

In his second assignment of error, the defendant claims that his eighteen-month sentence is constitutionally excessive under the circumstances. A minute entry reflects that the defendant timely filed his motion to reconsider sentence twenty days after sentencing, although no grounds for the claim are reflected in the minute entry and the record contains no written motion to reconsider.

A statutorily permissible sentence under the Habitual Offender Law may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional and, thus, the sentences provided under it for habitual offenders are also presumed to be constitutional. Johnson, 97-1906 at pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906 at p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Johnson, 97-1906 at p. 9, 709 So.2d at 677.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127. If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184,185.

However, in State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, this court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

96-1214 at p. 10, 708 So.2d at 819.

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

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

Id.

The defendant first submits that his sentence should be vacated simply because the trial court failed to state for the record that it considered the sentencing factors under La.C.Cr.P. art. 894.1. However, in such a case a remand for resentencing is appropriate only where there appears to be a substantial possibility that the defendant’s complaints of excessive sentence have merit. Soraparu, supra.

A defendant convicted of theft of property valued at three hundred dollars but less than five hundred dollars is subject to imprisonment with or without hard labor for not more than two years, or may be fined not more than two thousand dollars, or both. La. R.S. 14:67(B)(2). As a second felony habitual offender, defendant was subject to imprisonment for not less than one year and not more than four years (one-half of the two-year maximum and twice the two-year maximum for a first offense). La. R.S. 15:529.1(A)(l)(a).

|12In State v. Pratt, 95-762 (La.App. 5 Cir. 2/27/96), 671 So.2d 21, the court found that a twenty-four month hard labor sentence for theft of property valued at over one hundred dollars but less than five hundred dollars was not excessive, where the defendant was a forty-one-year-old second-felony offender, had an extensive record, and was on parole when he committed the theft of the handgun from the home of an acquaintance.

In State v. Washington, 414 So.2d 313 (La.1982), the court held that a six-year sentence for theft of property valued at five hundred dollars or more, where the maximum sentence was ten years, was not excessive. The defendant was also fined $1,000 dollars. He had pleaded guilty in exchange for the State’s dropping a burglary charge. Also, at the time of the theft the defendant was serving a one-year probation for a prior theft.

In this case the defendant, who was almost twenty years old at the time he was sentenced, represented at the sentencing hearing that he had recently completed a three-and-one-half-year course of chemotherapy for leukemia, and required bone marrow testing every four to six weeks to determine whether he continued to be in remission. It appears from the record that the trial court became aware of the defendant’s condition only after the eighteen-month sentence had been imposed. The defendant conceded that his prior felony conviction, for possession of stolen property, resulted in only probation, which he had completed. The trial court sentenced the defendant to eighteen months, six months longer than the one-year minimum sentence.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, supra. The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).

Generally, the reviewing court must determine whether the trial judge adequately complied with the guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983); State v. Quebedeaux, 424 So.2d 1009 (La.1982). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case. State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223. The articulation of the factual basis for the sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions.

After the trial judge sentenced defendant to eighteen-months imprisonment, defense counsel informed the court, while moving for an appeal bond, that the defendant was under chemotherapy for his leukemia and would require continuous medical monitoring for his condition. The trial court granted the appeal bond. The judge expressed his concern for the defendant’s medical condition but nevertheless imposed the eighteen-month sentence.

In State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, the Supreme Court, in a per curiam decision, stated:

114Our observation in State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), that “the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch,” does not, nor did we intend it to, restrict the sentence review principles espoused in that decision solely to the mandatory minimum penalties provided by La. R.S. 15:529.1. See State v. Davis, 94-2332, pp. 11-12 (La.App. 1 Cir. 12/15/96), 666 So.2d 400, 407-08. As we explained in State v. Sepulvado, 367 So.2d 762, 766 (La.1979), La. Const. Art. 1, § 20 provides “the basis for extending the court’s control over the entire sentencing process.” (emphasis added).

Fobbs was remanded to this Court, which ruled on whether the trial court could sentence the defendant to an eight year suspended sentence and five years active probation despite the fact that the substantive statute prohibited suspension for the first five years of the sentence. The Court noted that in State v. Barberousse, 480 So.2d 273 (La.1985), the Supreme Court had suggested that a mandatory minimum sentence that was not the result of a multiple bill might be unconstitutional. The court affirmed the sentence considering the facts and circumstances showing that imposition of the mandated minimum sentence would have made no measurable contribution to the acceptable goals of punishment. State v. Fobbs, 99-0073 (La.App. 4 Cir. 11/24/99), 747 So.2d 1232.

Clearly, based on the above jurisprudence, the trial court can deviate from the mandatory minimum sentence under Dor-they. The defendant had a valid argument that in light of his medical condition and the fact that he must be monitored by his doctors for a number of years in his immediate future, placing the defendant in prison for one and one half years may be disproportionate to his actions. Accordingly, we remand the matter to the trial court for Dorthey considerations.

For the reasons stated above we affirm the defendant’s conviction. The defendant’s sentence is vacated and this case is remanded for resentencing after a | ^determination of whether the eighteen-month sentence imposed by the trial court would be excessive under Dorthey.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

      . Officer Reinecke incorrectly replied in the affirmative when asked whether he had arrested the defendant on October 16, 2001.

      . Defendant's Assignments of Error designates this assignment as one that the trial court erred in denying his motion for post verdict judgment of acquittal on the ground that the evidence was insufficient to support his conviction. This presents the issue of sufficiency of the evidence. See La.C.Cr.P. art. 821(B).

      . This was the same grade of theft as in the instant case; the minimum value was increased to three hundred dollars by Acts 1999, No. 1251, § 1.


source: Caselaw Access Project

author: JiLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Kevin KIRKLIN v. Cynthia JOSEPH, Her Insurance Company, State Farm Mutual Automobile Insurance Company, Gregory Jourdan, and His Insurance Company, Progressive Security Insurance Company. Cynthia Joseph v. Gregory Jourdan, and his Insurance Company, Progressive Security Insurance Company. Gregory Jourdan on Behalf of His Minor Child, Tevin Jourdan, and Khaisha Batiste v. Cynthia Joseph, Gregory Jourdan, Progressive Security Insurance Company and State Farm Mutual Ins. Co.
    Nos. 2002-CA-1998, 2002-CA-1999, 2002-CA-2000.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Edward J. Rivera, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Defendant/Appellees, Cynthia Joseph and State Farm Mutual Automobile Insurance Company.
    Christin D. Bordelon, Morse, McGinty & Associates, New Orleans, LA, for Defendant/Appellants, Gregory Jourdan and Progressive Security Insurance Company.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   JiLEON A. CANNIZZARO, JR., Judge.

This is an appeal from a judgment in an automobile accident case assessing fault against the driver of one of the vehicles. That driver and his insurance company now appeal.

FACTS AND PROCEDURAL HISTORY

On June 21, 2000, a Buick Skylark driven by Cynthia Joseph and a Toyota Tercel driven by Gregory Jourdan were involved in an accident at the intersection of Morrison Avenue and Read Boulevard in New Orleans, Louisiana. Both vehicles were damaged, and Ms. Joseph and the passengers in both vehicles suffered personal injuries in the accident.

Following the accident several lawsuits were filed. Ms. Joseph filed suit against Mr. Jourdan and his insurer, Progressive Security Insurance Company (“Progressive”). Kevin Kirklin, a passenger in Ms. Joseph’s car, filed suit against Ms. Joseph and Mr. Jourdan and their respective insurers, State Farm Mutual Automobile Insurance Company (“State Farm”) and Progressive. Mr. Jourdan, on behalf of his minor son, Tevin Jourdan, and Khaisha Batiste, a passenger in Mr. 12Jourdan’s car, filed suit against Ms. Joseph and State Farm for injuries sustained by Ms. Batiste and the child. State Farm filed a cross claim against Mr. Jourdan and Progressive seeking recovery of amounts paid because of the damage to Ms. Joseph’s vehicle. All of the lawsuits were consolidated for trial purposes, and the claim of Tevin Jourdan, Mr. Jourdan’s minor child, was settled with State Farm prior to trial.

On June 3, 2002, the consolidated cases were tried. On July 3, 2002, the trial court rendered a Judgment in favor of Ms. Joseph against Mr. Jourdan and Progressive and in favor of Mr. Kirklin, Ms. Batiste, and Mr. Jourdan, on behalf of his minor child, Tevin Jourdan, against Progressive. The Judgment was also in favor of State Farm against Progressive on State Farm’s cross claim. On July 11, 2002, the trial court rendered an Amended Judgment reflecting that Mr. Jourdan and Progressive were solidarily liable to Ms. Joseph only up to the limits of liability on the insurance policy issued to Mr. Jourdan by Progressive. The Amended Judgment also reflected that Progressive was liable to Mr. Kirklin, Ms. Batiste, and Mr. Jour-dan, on behalf of his minor child, only up to such limits.

In her Reasons for Judgment, the trial court stated that based on the location of the damage to both vehicles involved in the accident, the accident could not have happened in the way that Mr. Jourdan testified that it did. The trial court found that Mr. Jourdan failed to keep a proper lookout for indications that Ms. |sJoseph’s vehicle was turning. The trial court further determined that Mr. Jourdan’s failure to keep a proper lookout and his failure to keep his vehicle under proper control were the sole causes of the accident. Finally, the trial court also found that there was no evidence that Ms. Joseph was not driving in accordance with her rights.

On July 30, 2002, Progressive and Mr. Jourdan filed a Motion for Suspensive Appeal. No other parties appealed the trial court’s decision.

STANDARD OF REVIEW

In Harvey v. Cole, 2000-1849 (La.App. 4th Cir.1/23/02), 808 So.2d 771, this Court stated:

The standard of appellate review of a trial court’s findings of facts was enunciated in Mistich v. Volkswagen of Germany, Inc., 95-0939, pp. 4-5 (La.1/29/96), 666 So.2d 1073, 1077, as follows:
It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact 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. Rosell, supra at 844. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the |4record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DODT, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).
For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong but whether the factfin-der’s conclusions were reasonable. Stobart, supra at 883; Theriot v. Lasseigne, 640 So.2d 1305 (La.1994). Id. at 2-3 and at 775-76.

Therefore, applying the standard of review discussed above, unless this Court finds that the trial court’s factual findings were clearly erroneous, the trial court’s judgment should be affirmed.

DISCUSSION

The issue presented on appeal is whether the trial court properly determined that Mr. Jourdan was solely at fault in the accident with Ms. Joseph. Mr. Jourdan and Progressive contend that some portion of fault should have been allocated to Ms. Joseph.

Mr. Jourdan testified at trial that just prior to the accident he had come to a complete stop in his vehicle on Morrison Avenue two to three feet from the left curb. He stated that he first saw Ms. Joseph’s vehicle to his right and a little behind his vehicle. Mr. Jourdan further testified that when he accelerated to proceed straight through the intersection of Read Boulevard and Morrison Avenue, Ms. Joseph made a left hand turn directly in front of him, causing the vehicles to collide.

Ms. Joseph’s testimony at trial was contradictory to Mr. Jourdan’s testimony. Ms. Joseph stated that when she approached the intersection of Morrison Avenue and Read Boulevard, she came to a complete stop, because the ^traffic signal was red. She testified that there were no cars in front of her, but there was a car to the right of her. After the light turned green, Ms. Joseph began to proceed through the intersection in anticipation of making a left turn onto Read Boulevard. She stated that her left turn signal light was on and that she stayed entirely in the left lane while proceeding with the turn. Ms. Joseph testified that she did not see Mr. Jourdan’s vehicle before the collision. The testimony of Mr. Kirklin, the passenger in Ms. Joseph’s vehicle, corroborated her testimony.

In her Reasons for Judgment the trial court stated that Mr. Jourdan violated La. R.S. 32:73, which provides in pertinent part:

Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

Mr. Jourdan had attempted to pass Ms. Joseph’s vehicle on the left, where there was no additional lane of travel, while she was making a left turn. Mr. Jourdan’s failure to comply with the requirements of La. R.S. 32:73 is what the trial court found to be the cause of the accident.

The trial court based her assessment of Mr. Jourdan’s fault on the testimony and the evidence produced at trial. The testimony of Mr. Jourdan and Ms. Joseph was in agreement regarding the location of the damage to their vehicles. Based on this testimony, the trial court found that Mr. Jourdan’s testimony regarding the way in which the accident occurred was completely discredited. The location of the damage precluded a finding that Mr. Jourdan’s testimony regarding the accident was correct.

The trial court believed the testimony of Ms. Joseph as to the facts with respect to how the accident occurred. Therefore, the trial court concluded that Mr. |fJour dan was at fault due to his negligence and that Ms. Joseph was not at fault and was driving properly when the accident occurred.

CONCLUSION

Based on our review of the entire record, we find that the trial court’s findings of fact comport with the evidence and the testimony presented at trial. We find nothing in the record to indicate that the trial court’s findings of fact were not correct. Therefore, the judgment of the trial court, as it was amended, is affirmed.

AFFIRMED.

      . Ms. Batiste is referred to in the Judgment as Khaisha Butler.

      . Although the Judgment was not amended pursuant to a motion for a new trial or a motion consenting to the change, the change merely states what is a matter of law, and the insurance policy showing the policy limits was introduced in evidence at trial. Therefore, we find that the Amended Judgment alters the phraseology of the Judgment but not the substance and could be made on the trials court's own motion. La. C.C.P. art. 1951.


author: hTERRI F. LOVE, Judge.

text:
    John DOE, M.D. v. Sr. Barbara GRANT, Nicholas J. Angelica, M.D., E.H. Goodier, M.D., and Mercy Hospital.
    No. 2001-CA-0175.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Writ Denied May 2, 2003.

      Kyle Schonekas, Marc D. Winsberg, Patrick S. McGoey, Thomas M. McEachin, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Appellant, Bahram Zamanian, M.D. and Bahram Za-manian, M.D., A Professional Corporation.
    Bruce A. Cranner, Thomas B. Delsa, Gary L. Hanes, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Christian Health Ministries, Nicholas J. Angelica, M.D., and Vincent A. Culotta, Jr., M.D.
    Judith W. Giorlando, Wendy Hickok Robinson, Gordon, Arata, McCollam, Du-plantis & Eagan, L.L.P., New Orleans, LA, Amicus Curiae, Louisiana State Medical Society and its Component Medical Societies.
    John A. Stassi, II, Janet L. White, Christovich & Kearney, L.L.P. New Orleans, LA, Amicus Curiae, Metropolitan Hospital Council of New Orleans, Inc.
    Basile J. Uddo, Metairie, LA, Amicus Curiae, Memorial Medical Center Baptist Medical Staff and the New Orleans Academy of Internal Medicine.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   hTERRI F. LOVE, Judge.

Dr. Bahram Zamanian, plaintiff in this action, brought suit against Christian Health Ministries, D/B/A Mercy Hospital, Nicholas J. Angelica, M.D., and Vincent A Culotta, Jr., M.D., for damages and injunc-tive relief claiming defamation, bad faith breach of contract, tortious interference with contractual relations, unfair trade practices, and intentional infliction of emotional distress. The trial court directed verdict in favor of the defendants on all claims except defamation. The jury returned a verdict in favor of Dr. Zamanian, awarding him $6 million in damages for defamation. The trial court granted defendant’s motion for JNOV and conditionally granted a new trial. It is from this decision that Dr. Zamanian brings the instant appeal. For the reasons outlined below, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Dr. Bahram Zamanian was granted unrestricted staff privileges to practice cardiology at Mercy Hospital in New Orleans in 1987. Dr. Zamanian specializes | ¡jn inter-ventional cardiology and has performed hundreds of procedures known as Percuta-neous Transluminal Cardiac Angioplasty (“angioplasty”).

On April 28, 1993, Dr. Zamanian performed an angioplasty on Daisy Mearis. Ms. Mearis was considered a high-risk patient, due to her age and significant blockage in her arteries. During the procedure, Dr. Zamanian successfully dialated two of Ms. Mearis’ arteries. However, one of her arteries re-occluded. When Dr. Zamanian attempted to remove the ballon catheter, it split and lodged in Ms. Mearis’ heart. Ms. Mearis died during the procedure.

Approximately one month after Ms. Mearis’ death, Dr. Vincent A. Culotta, Jr., a defendant in the instant action, informed Dr. Zamanian that he was appointed chairman of the Ad Hoc Committee formed to review the Mearis case. Dr. Travis Harrison, Chairman of Mercy’s Quality Care Review Committee, asked the Ad Hoe Committee to look into the indication of Ms. Mearis for angioplasty and Dr. Zama-nian’s performance of the procedure.

Dr. Zamanian contends that this Ad Hoc committee did not include a cardiologist, but relied almost exclusively on the opinions solicited from three Mercy Hospital cardiologists, who in Dr. Zamanian’s words were his “direct economic competitors”, to review his performance in the Mearis case.

Dr. Zamanian asserts that the peer review process was tainted. He contends the Ad Hoc committee gave its cardiology consultants limited information about the events leading up to Ms. Mearis’ death, which did not include her medical history, and never allowed Dr. Zamanian to explain his actions and the procedure |ato the cardiologists. The Ad Hoc committee also solicited the opinion of Dr. Louis Deane, a cardiologist at an affiliated hospital in St. Louis, Missouri. Dr. Deane rendered his opinion on the Mearis case to Mark Stau-der, Mercy’s Chief Operating Officer.

When the findings of the Ad Hoc committee were presented to the Medical Executive Committee, Dr. Zamanian was summarily suspended. He contends the report of the Ad Hoc committee, which led to his suspension, was riddled with omissions and misrepresentations.

Dr. Zamanian, exercising his rights, appealed the Medical Executive Committee’s decision to a Hearing Committee of five doctors, four appointed by Mercy Hospital, one appointed by Dr. Zamanian. This Hearing Committee reviewed the entire record of the Mearis case, including testimony from seventeen witnesses and briefs by the Medical Executive Committee and Dr. Zamanian. On December 29,1993, the Hearing Committee issued a written report and recommendation that rejected the summary suspension or the restrictions placed on Dr. Zamanian. The Board of Trustees, after reviewing the evidence, followed the recommendation of the Medical Executive Committee to summarily suspend Dr. Zamanian.

Dr. Zamanian alleges that the actions taken against him by the hospital were financially motivated and the entire process permanently damaged his reputation. On April 28, 1994, Dr. Zamanian filed an amended and supplemental petition for damages and injunctive relief, and sought damages to his practice and reputation. |JDr. Zamanian also asserted claims for bad faith breach of contract, defamation, tortious interference with contractual relations, unfair trade practices, and intentional infliction of emotional distress.

On June 26, 2000, defendants moved for directed verdict on all claims. The trial court granted the directed verdict with respect to the bad faith breach of contract, unfair trade practices, and tortious interference with contractual relations claims in favor of the defendant. After the defendants presented their case, the trial court granted a directed verdict in favor of the defendants on the intentional infliction of emotional distress claim.

The jury returned a verdict on the defamation claim in favor of Dr. Zamanian and awarded him $6 million. The jury apportioned 50% of the fault to Mercy Hospital, 40% to Dr. Culotta, and 10% to Dr. Angelica.

The defendants moved for a JNOV, or alternatively, a new trial. The trial court granted the JNOV finding that “the evidence reflected no genuine issue of fact.” The trial court also conditionally granted the defendant’s motion for new trial, finding that since the Hearing Committee found the actions of the defendant were in good faith, and as such, they were entitled to immunity.

Accordingly, Dr. Zamanian took the instant appeal. He seeks review of the JNOV and granting of a conditional new trial, and the directed verdict on his bad faith breach of contract claim.

I ¿DISCUSSION

In his first assignment of error, Dr. Zamanian argues the trial court erred in granting the defendant’s motion for JNOV, and conditionally ordering a new trial.

The Supreme Court, in Anderson v. New Orleans Pub. Serv., 583 So.2d 829 (La.1991), set the standard of review for JNOVs. Citing Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986), the Court stated:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied.

In making this determination, the court should not evaluate the credibility of the witness, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson at 832. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Id.

In his reasons for judgment the trial court judge stated:

It is the Court’s opinion that the evidence reflects no genuine issue of fact. And under that evidence reasonable minds could not differ on both the issue of liability and on damages. The judgment not withstanding the verdict is therefore granted on both the issue of liability and on the issue of damages.
The Court has never varied in its opinion on liability or damages. However, it felt compelled, by my reading of the opinion of the Court of Appeals in their prior decision in this case, to give them |fithe benefit of a complete record for their review. But for that decision, the Court would have granted the directed verdict in this case long ago.
The Court feels that the record is now complete and that this matter will not be returned to the district level again.
If for some reason this decision is vacated or reversed, the Court further rules on the new trial issue, while reiterating the judgment notwithstanding the verdict in favor of all three Defendants on both the issue of liability and damages, the Court conditionally grants a new trial on the grounds that at the full hearing conducted by the Peer Review Committee headed by Drs. Garcia-Oller and Kitziger it was determined that everyone prior thereto, including the Defendants who appeared on previous Peer Review Committee, had acted in good faith and which clearly in this Court’s opinion triggers the immunity statue (sic) of both the federal and the state laws.
Likewise, the record clearly reflects no loss earning nor damages by Plaintiff subsequent to the action of the Executive Committee.
For these reasons and for others that appear in the request for judgment notwithstanding the verdict in the record and in the arguments of counsel, especially in this Court’s opinion the lack of credible and obtainable accurate evidence of referral to the Plaintiff, as well as the information that was argued here today about whether or not that unit was stretched to failure, the Court would grant a new trial on both the facts and the law. The granting of a new trial is therefore conditional in view of the granting of the judgment notwithstanding the verdict on both liability and damages against all the Defendants herein.

In order to determine whether the trial court’s granting of defendants’ motion for JNOV was correct, we shall review the plaintiffs claim for defamation to determine if the facts and inferences point so strongly and overwhelmingly in favor of the defendants that reasonable persons could not arrive at a different verdict.

DEFAMATION

“To prevail on a claim of defamation, plaintiff has the burden of proving by a preponderance of the evidence five essential elements: defamatory words, publication, falsity, malice and resulting injury. If even one of these elements is absent, the cause of action fails.” Sommer v. State, Dept. of Transp, and Dev., 97-1929, p. 25 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 939, writ denied, 2000-1759 (La.10/27/00), 772 So.2d 122.

Defamatory words are those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him. Sommer, 97-1929, p. 26, 758 So.2d at 939. To be actionable, the words must be communicated or published to someone other than the plaintiff. Id. Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. Id. If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed, although they may be rebutted by the defendant. Id. (citing Arledge v. Hendricks, 30,0588, pp. 3-4 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, 138). To rebut this presumption, defendants have the burden of proving a reasonable belief in the truth of the statements. See Sommer, 97-1929, p. 29, 758 So.2d at 940.

Dr. Zamanian asserts four documents to support his claim of defamation.

1) The Ad Hoc Committee Report: In the Ad Hoc Report, Dr. Culotta stated (as the author): “Two of the cardiologists interviewed stated that they felt it was below the standard of care to even attempt this case and that there was substandard performance of the procedure.”
2) Deane Statement: Dr. Culotta’s statement to the Medical Executive Committee on June 29, 1993, that they consulted St. Louis cardiologist (Dr. Deane) who said that it was highly risky to perform angioplasty on Ms. Mearis.
3) Summary Suspension Letter: The summary Suspension letter, written by Mercy Administration and signed by Sr. Grant, Dr. Angelica, and Dr. Goodier.
4) Reaffirmation Letter: the Reaffirmation letter to the Board of Trustees, written by Mercy Administration and signed by Dr. Angelica, stating that despite the Hearing Committee’s ^findings, the MEC reaffirmed its decision to summarily suspend Dr. Zamanian.

Each of the above statements qualifies as defamatory per se. Each calls into question Dr. Zamanian’s practice as a doctor and whether he had used the appropriate standard of care in the Mearis case. It doesn’t matter as the defendants suggest, that there was no defamatory intent. The threshold question is whether the statements would have the tendency to diminish the reputation of Dr. Zamanian. The statements cited by Dr. Zamanian all call into question his practice and judgment as a cardiologist in performing a procedure that in this case resulted in the death of his patient. It is clear that the statements would have the effect of diminishing Dr. Zamanian’s reputation as a cardiologist. We find the statements in question are defamatory per se. Therefore, upon proof of publication, malice, falsity and damages are presumed.

Publication refers to any non-privileged communication of defamatory words, written or oral, and it renders a defendant liable “for all republication that is the natural and probable consequence of the author’s act.” Landrum v. Board of Commissioners of the Orleans Levee District, 95-1591, p. 11 (La.App. 4 Cir. 11/27/96), 685 So.2d 382, 390 (citing Martin v. Lincoln General Hospital, 588 So.2d 1329, 1333 (La.App. 2 Cir.1991). However, “statements between employees, made within the course and scope of their employment, are not statements communicated or publicized to third persons so as to constitute a publication.” Bell v. Rogers, 29,757, p. 10 (La.App. 2 Cir. 8/20/97), 698 So.2d 749, 756 (citing Marshall v. Circle K Corp., 715 F.Supp. 1341, 1343 (M.D.La.1989)).

Dr. Zamanian points to three incidents to support his assertion that the alleged defamatory statements were published.

|91) Dr. Culotta shared the Ad Hoc Report with members of Mercy Medical Staff.
2) Mercy Administration told the nursing staff and others at the hospital that Dr. Zamanian’s privileges had been summarily suspended.
3) Dr. Angelica told the Board that the MEC had reaffirmed its decision to summarily suspend Dr. Zamanian.

Clearly, what Dr. Zamanian cites as incidences of publication, are in actuality communications between employees of the hospital during the course and scope of their employment. The disclosures regarding the summary suspension were the direct outcome of the peer review process, and necessary to ensure not only the safety of patients at the hospital, but to ensure that the doctors and nurses on Mercy’s staff were aware that Dr. Zamanian’s privileges had been suspended. These disclosures therefore cannot be considered published for the purposes of a defamation claim. Since there is no publication of defamatory words, Dr. Zamanian’s claim of defamation fails.

Assuming arguendo, that the statements cited by Dr. Zamanian, were published for the purposes of the defamation claim and, accordingly, malice, falsity and damages are presumed, his claim still fails because the defendants are protected by qualified privilege. Even if plaintiff makes a prima facie showing of the essential elements of defamation, there is no recovery if defendant bears its burden of proving that the statement was protected by an absolute or qualified privilege. Sommer, p. 32, 942 (citing Arledge v. Hendricks, 30,588, p. 4 (La.App. 2 Cir. 6/26/98)), 715 So.2d 135, 139. An otherwise defamatory publication enjoys a qualified conditional privilege if made (a) in good faith; (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty; and (c) to a person having a corresponding interest or duty. Kelly v. West Cash & Carry Building Materials Store, 99-0102, p. 11 (La.App. 4 Cir. 10/20/99), 745 So.2d 743, 752 (citing Clements v. Ryan, 382 So.2d 279, 282 (La.App. 4 Cir. 1980)).

In Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 639 So.2d 730, the Supreme Court discussed the availability of qualified immunity from a defamation claim stemming from the peer review of a cardiologist whose hospital privileges were suspended. The Court acknowledged the overriding need to protect such activities as a hospital peer review proce- • dure from doctors whose privileges have been suspended.

The conditional privilege rebuts the plaintiffs allegations of malice and places the burden of proof on the plaintiff to establish malice and lack of good faith. [I]n effect assertion of a qualified [or conditional] privilege constitutes a rebuttal of the allegation of malice. Consequently, “[m]ere allegations of malice and bad faith, even with specifications of personal animosity and possible prior overreaching of authority, will not suffice to allow an action against hospital personnel engaging in peer review.” (Internal citations omitted).

Smith, 93-2512, pp. 20-21, 639 So.2d at 746-747.

The Health Care Quality Improvement Act of 1986 (“HCQIA”) shields good faith medical peer review from federal and state causes of action. Under 42 U.S.C. § 11112(a)(1) the participants in a professional review body are not liable for damages as a result of the review process provided that the review is taken:

1) In the reasonable belief that the action was in the furtherance of quality health care,
2) After a reasonable effort to obtain the facts of the matter,
3) After adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
4)In the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

|nA professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence. 42 U.S.C. § 11112(a).

In 1983, Louisiana enacted the Louisiana Peer Review Statute (“LPRIS”). It states in pertinent part:

No member of any such committee designated in Subsection A of this Section or Sponsoring entity, organization, or association on whose behalf the committee is conducting its review shall be liable in damages to any person for any such action taken or recommendation made within the scope and functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by facts known to him.

La. R.S. 13:3715.3(0.

In Smith, the Supreme Court discussed both the federal and state statutes and found that lack of malice and good faith exists when the defendants— peer review committee members are shown to have a reasonable basis for their action or recommendation made in the course of the peer review process. Smith, 93-2512, p. 25, 639 So.2d at 749. The burden of establishing the lack of good faith or the presence of malice is on the plaintiff-physician. Smith, 93-2512, p. 26, 639 So.2d at 750.

Reviewing the entire record, we find that Dr. Zamanian did not establish malice or lack of good faith in the peer review process. Mercy Hospital took the necessary steps to conduct a proper peer review. In order to show bad faith on the part of the defendants, Dr. Zamanian would have had to offer proof that Dr. Culotta intentionally lied about the statements from two of the cardiologists who | ^evaluated Dr. Zamanian’s performance, or that he intentionally misrepresented the statements of Dr. Louis Deane to the Medical Executive Committee. It is clear from Dr. Deane’s deposition that he had reservations about whether Ms. Mearis was a suitable candidate for angioplasty, therefore, the assertion that Dr. Culotta’s statement to the Medical Executive Committee that Dr. Deane stated he thought it was “highly risky” to perform the angioplasty on Ms. Mearis cannot reasonably be construed as malicious. Dr. Zamanian failed to establish bad faith in either the Summary Suspension Letter of July 1, 1993 or the Reaffirmation Letter of January 4, 1994. Dr. Zamanian did not present evidence showing that these letters were constructed, or for that matter issued, in bad faith. On the contrary, the evidence demonstrates that the hospital was merely disciplining a doctor whose patient died during a risky procedure. The committees conducted adequate fact-finding, considered the evidence, made reasonable conclusions, and took appropriate action. There was absolutely no evidence showing that any of the actions taken in the review of Dr. Zamanian’s performance were undertaken in bad faith.

Dr. Zamanian failed to provide evidence of publication of the defamatory per se statements nor did he demonstrate bad faith on the part of the defendant in order to vitiate their qualified privilege under the federal and state statutes, therefore, his claim for defamation fails. As no reasonable person could find the defendants defamed him, the trial court was correct in granting the JNOV.

Since we are affirming the trial court’s granting of defendant’s motion for JNOV, we pretermit discussion on the trial court’s grating of a conditional new trial, as that issue is rendered moot by this opinion.

I ialn his second assignment of error, Dr. Zamanian asserts the trial court erred in granting defendant’s motion for a directed verdict on his bad faith breach of contract claim.

Pursuant to La. C.C.P. art. 1810, a motion for directed verdict is properly granted if, in viewing the facts in the light most favorable to the non-moving party, the trial court concludes that the evidence is such that reasonable and fair-minded jurors cannot arrive at a verdict in favor of the non-moving party. Graham v. Ryan, 93-2155 (La.App. 4 Cir. 7/27/94), 641 So.2d 677, 678. In determining whether a trial court properly granted a directed verdict, the appellate court need not decide whether plaintiffs established their case by a preponderance of the evidence. Rather, the reviewing court need only decide whether reasonable, impartial minds could have reached a different conclusion. Cliburn v. Colonial Penn Ins. Co., 583 So.2d 103, 105 (La.App. 3 Cir.1991).

Dr. Zamanian asserts Dr. Culotta breached the bylaws by “hiding” Dr. De-ane’s report from the Medical Executive Committee, the Hearing Committee, and the Board of Trustees. He also asserts Dr. Culotta lied about the three consulting cardiologists’ opinions regarding the procedure performed on Ms. Mearis, and that Dr. Culotta made “the impractical recommendation of having Dr. Zamanian attend a CME course that did not exist.”

Dr. Zamanian presents no evidence to show that Dr. Culotta knowingly concealed Dr. Deane’s report from the Medical Executive Committee nor does he show that Dr. Culotta knowingly misrepresented the opinions of the three cardiologists. The recommendation to take the CME course, which was later found did not exist, is not a basis for finding that there was a breach of the bylaws, but merely a mistake on the part of Dr. Culot-ta.

|14Pr. Zamanian then asserts that Dr. Angelica breached the bylaws “by suspending Dr. Zamanian without a reasonable belief that Dr. Zamanian was an immediate threat to patient care — a violation of § 28.03(a).” He also argues that § 28.03(b) of the bylaws requires the vote of the Medical Executive Committee to join in summary suspension and that Dr. Angelica testified that the Medical Executive Committee did not vote on summary suspension. Dr. Angelica did not recall a Medical Executive Committee meeting to reaffirm the Medical Executive Committee’s position to summarily suspend Dr. Zamanian, yet he sent a reaffirmation letter to the Board of Trustees. Further, Dr. Zamanian argues, Dr. Angelica told the Board the Medical Executive Committee rejected the Hearing Committee’s findings. Finally, Dr. Angelica said in the reaffirmation letter that he was sending the Board a summary of the evidence, but all he sent was the hospital’s brief.

Section 28.03(a)-(b) of the Mercy bylaws states:

(a) A member of the Medical Staff may be summarily suspended whenever his/her conduct may require that immediate action be taken to protect the life of any patient or to reduce the substantial likelihood of immediate injury or damage to the health or safety of any patient, employee, or person present in the hospital.
(b) The Chief Executive Officer (or in his/her absence his/her designee), in conjunction with the MEC, President and Chief of Staff (or in his/her absence the Vice President or officers in descending rank) shall have the authority to summarily suspend all or any portion of the clinical privileges of any appointee of the Medical Staff.

The record shows that the summary suspension letter was issued properly by the Medical Executive Committee in accordance with § 28.03(a) and with appropriate reasons, and was issued only after Dr. Zamanian refused to comply with the committee’s initial recommendations of attending a CME course and having | ^second opinions issued on his next fifty cases. Dr. Zamanian’s assertions about Dr. Angelica’s recollection of the circumstances surrounding the issuance of the summary suspension letter and the reaffirmation letter, which occurred years before Dr. Angelica testified at trial, are shown by the record to be no more than lapses in memory not rising the level of breach.

Dr. Zamanian asserts that Mercy Hospital breached the bylaws because it did not disclose the Deane report to the Hearing Committee or Dr. Zamanian; and that Mercy Hospital prepared the summary suspension letter and reaffirmation letter, which it knew contained false statements. Finally, Dr. Zamanian argues that Mercy Hospital breached the bylaws “when it invited Dr. Angelica, but did not invite Dr. Zamanian to give an oral presentation”, in violation of § 29.06(a).

There is no evidence that it was a breach of the bylaws or that it was a violation to not present the Deane report to the Hearing Committee or to Dr. Zama-nian himself, nor was any evidence presented to show that it was done intentionally. Further, Dr. Zamanian presented no evidence showing that Mercy Hospital prepared the summary suspension letter and reaffirmation letter containing what it knew to be false statements. The record clearly shows these to be baseless accusations by Dr. Zamanian.

With regard to Dr. Zamanian not being invited to give an oral presentation to the Board, § 29.06(a) and (c) of the Mercy bylaws provides:

(a) If a hearing committee has been convened, the practitioner may within five (5) days of receipt of notice of their recommendation submit to the Board a written memorandum summarizing his/ her position in the matter. The Medical executive Committee may also submit, within five days (5) days of the notice, a written memorandum summarizing its position in the matter.
(c) The Board decision will be made on the record. No new evidence will be considered except for good cause shown in the Board’s sole | ^discretion. An oral presentation by the Medical Staff representative and affected practitioner is allowable only in the discretion of the Board. All decisions to appoint or reappoint will include the delineation of the clinical privileges.

Dr. Zamanian was aware that he was under review, and he was aware of his rights under the bylaws to present his case. There is no affirmative duty imposed on the hospital by the bylaws to allow Dr. Zamanian to defend himself in person before the Board. The Board reviewed the evidence previously submitted to the Ad Hoc committee and the Medical Executive Committee, and made their decision based on that evidence as is provided in the bylaws. There is no merit to his argument that Mercy was responsible for inviting him to present his case in person to the Board.

In Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 34-35 (La.7/5/94), 639 So.2d 730, 755-756, the Supreme Court, adopting the standard articulated in Owens v. New Britain General Hospital, 32 Conn.App. 56, 627 A.2d 1373 (1993), discussed compliance with hospital bylaws:

While there is no Louisiana jurisprudence on point, the consensus among other jurisdictions on the issue of the effect of a hospital’s failure to comply strictly with its bylaws is that a “substantial compliance” rule applies. The substantial compliance rule is in accord with the purpose underlying a hospital’s bylaws providing a fair process, outside the judicial system, for adjudicating staff privileges issues ... This standard presupposes that irregularities in procedural compliance will not constitute a breach of the bylaws unless the physician can establish that the hospital has failed to cure these lapses adequately or timely or that these lapses have been willfully made or have otherwise prejudiced the outcome of the process. Because the central purpose of the bylaws is to provide procedural fairness in reaching decisions regarding staff privileges, merely “technical” violations or minor deviations in the procedures employed that do not result in material prejudice to the physician or otherwise undermine the result reached by the hospital will not rise to the level of “breaches” of the hospitals obligation to comply with its bylaws.

h7We find that following the “substantial compliance” standard set out in Smith, Dr. Zamanian failed to show the defendants breached the bylaws. All of Dr. Zamani-an’s allegations of breach were shown by the record to be based on mere lapses of memory, innocent mistake, or misinterpretation of the bylaws by Dr. Zamanian. These are, at most, mere technical violations and minor deviations in the review process established by the Mercy bylaws. None of the alleged breaches resulted in actual prejudice to Dr. Zamanian, nor did Dr. Zamanian demonstrate that any of the alleged breaches were willful, as required by Louisiana law. We find that the evidence is such that no reasonable person could find that the defendants breached the bylaws, and therefore the trial court did not err in granting the directed verdict in favor of the defendants.

CONCLUSION

We find the record is lacking in evidence to support either the defamation claim or the bad faith breach of contract claim. Accordingly, we affirm the trial court’s granting the defendants’ motions for JNOV and directed verdict.

AFFIRMED.

      . In the brief submitted to this court by Dr. Zamanian, he refers to himself by his proper name; therefore we will address him by his name in this opinion.

      . Among the committees designated in La. R.S. 13:3715.3(A) are any hospital committee and peer review committees of any medical organization. The statute was amended in 1995 to extend qualified immunity to hospitals as well as individual committee members.


author: hTERRI F. LOVE, Judge. | TOBIAS, J.,

text:
    Myrne CAMPBELL, et al. v. Vikrom S. SOTTIURAI, M.D., et al.
    No. 2002-C-2223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Writ Denied May 9, 2003.

      John D. Rawls, and Judith A. Gic, New Orleans, LA, for Plaintiff/Respondent.
    Mary Fuchs Gaudin, Mang, Batiza, Gau-din, Godofsky & Penzato, Metairie, LA, for Defendants/Relators.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   hTERRI F. LOVE, Judge.

The relators, Drs. Sottiurai, Brown and Brown, seek review of a judgment denying their exception of no cause of action and in the alternative motion for summary judgment.

The instant case arises out of a survival action filed by the plaintiff, Myrne Campbell individually and as the executrix of the succession of Carol Campbell, against the relators and other named defendants for medical malpractice.

All well-pleaded allegations of fact must be accepted as true when considering an exception of no cause of action. The exception of no cause of action must be decided upon the face of the petition and any attached documents. Hoskin v. Plaquemines Parish Government, 98-1825, p. 10 (La.App. 4 Cir. 8/4/99), 743 So.2d 736. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proc. art. 931.

The standard for granting an exception of no cause of action is as follows:

The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the [appellate court] should subject lathe case to de novo review, because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.
In appraising the sufficiency of the petition, [the reviewing court] follow[s] the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. The petition should not be dismissed merely because plaintiffs allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the petition to determine if the allegations provide relief on any possible theory.

Hoskin, 98-1825, pp. 10-11, at 742 (quoting City of New Orleans v. Board of Com’rs, 93-0690 (La.7/5/94), 640 So.2d 237).

Taking all factual allegation of the petition to be true, we find that the respondent has stated a cause of action. It is not beyond doubt that the respondents can prove no set of facts in support of their claims. The respondents have alleged in their petition, among other things, that Carol Campbell signed a contract with Pendelton Hospital, consenting to treatment by their staff physicians, and that Dr. Steven D. Jones, relied on relators’ opinions in treating Carol Campbell, opinions that were given without research or examination of the patient. Respondents argue that it was the reliance on these uninformed opinions that ultimately resulted in the death of Carol Campbell. We find that these allegations, accepting them as true, articulate a valid cause of action against the relators. Judgment on the facts of these allegations should be made at trial.

Relators argue alternatively that the trial court should have granted their motion for summary judgment, if it was determined that the respondents had stated a valid cause of action.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the I ¡¡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. La. C.C.P. art. 966(B).

We find that there is a genuine issue of material fact as to whether a physician-patient relationship existed between relators’ and Carol Campbell, and the extent to which Dr. Jones relied on the relators’ opinions in treating Carol Campbell. Therefore, we find no error in the trial courts denial of relators’ motion for summary judgment.

WRIT DENIED.

TOBIAS, J., dissents with reasons.

| TOBIAS, J.,

dissents and assigns reasons.

I respectfully dissent. Although a close issue, I do not find that the respondent, Myrne Campbell, states a cause of action against the realtors.

The respondent’s petition alleges that on II or 12 August 1997, Ms. Carol Campbell (“Ms. Campbell”) became ill, complaining that she was spitting up blood. The respondent consulted Ms. Campbell’s family physician, James A. Rogers, M.D., by telephone, and Dr. Rogers prescribed some medication over the telephone. In the early morning hours of 13 August 1997, Ms. Campbell was still experiencing the same symptoms. The respondent again consulted Dr. Rogers by telephone to inform him that she was taking Ms. Campbell to Southern Baptist Hospital (Memorial Medical Center, Uptown Campus). Dr. Rogers informed the respondent that he was on staff at East Jefferson General Hospital. The respondent called emergency medical service and requested that the ambulance take Ms. Campbell to East Jefferson. However, Ms. Campbell was transported to Pendleton Memorial Methodist Hospital. She was admitted into the hospital through the emergency room and assigned to Larry Wooden, M.D., one of the named defendants. Harold T. Shelby, M.D., Steven D. Jones, M.D., and 12Jan T. MeClana-han, M.D., all performed consultations or examinations on Ms. Campbell and are all named as defendants, as is Dr. Rogers.

After Ms. Campbell arrived at the hospital, the respondent again spoke to Dr. Rogers by telephone; and the respondent alleges Dr. Rogers refused to see Ms. Campbell at Methodist Hospital.

The respondent alleges one or more of the defendants sought Ms. Campbell’s consent to perform a surgical procedure on her by presenting her with a surgery consent form that stated the procedure would be an exploratory laparotomy, by creating a long incision in the abdomen to look around and fix or remove any diseased organs. The respondent further alleged that the physicians, the written consent form, and hospital representatives failed to inform her or Ms. Campbell of the possibility of the gangrenous condition actually found during the surgery. The respondent alleges Dr. Jones informed her and Ms. Campbell verbally that the worst surgical result would be colostomy.

Shortly after Ms. Campbell’s arrival at the hospital, Dr. Jones and Johnny L. Gibson, M.D., performed the exploratory laparotomy on Ms. Campbell, during which the doctors discovered Ms. Campbell had a superior mesenteric artery occlusion with gangrenous small bowel and right colon.

The respondent’s petition alleges that during the surgery, Drs. Jones and Gibson consulted the relators, Vikrom S. Sottuirai, M.D., Thomas C. Brown, M.D., and James E. Brown, M.D., two by telephone and one orally, and that during the consultations, the relators rendered an opinion on Ms. Campbell’s prognosis and the availability (or lack thereof) of a remedial surgical procedure that would offer Ms. Campbell a chance of survival, all without examining Ms. Campbell or researching the medical literature on the subject. Drs. Jones and Gibson terminated the surgery without taking any ^further action other than the discovery of Ms. Campbell’s condition. The respondent alleges the relators’ actions or inaction, when presented with Ms. Campbell’s condition, was tantamount to withholding medical treatment, which was done without the respondent’s consent.

According to the narrative prepared by Dr. Jones upon inspection of Ms. Campbell’s intestines, it was clear that there was nothing to offer the patient medically. Ms. Campbell was terminal, and the only measure available was to make Ms. Campbell comfortable in her remaining days. Seventeen days after entering the hospital, Ms. Campbell died. Dr. Jones stated that the respondent was informed of Ms. Campbell’s condition, but refused to accept it by insisting that Ms. Campbell be given TV antibiotics and hyperalimentation, which prolonged Ms. Campbell’s death.

The respondent alleges Ms. Campbell’s death was the result of negligence on the part of all defendants, including relators. Specifically, the respondent alleges that the defendants, Drs. Jones and Gibson, relied on the advise of the relators, who failed to possess and/or apply the minimal level of medical knowledge necessary to recognize Ms. Campbell’s life threatening intra-abdominal condition, as well as a long list of other negligent actions found in the respondent’s petition.

To the petition the relators filed an exception of no cause of action and, alternatively, a motion for summary judgment. The trial court denied the exception.

The relators complain the trial court erred in denying their exception of no cause of action and, alternatively, motion for summary judgment.

Liability for malpractice is dependent on the existence of a physician-patient relationship. The existence of the traditional physician-patient relationship on which such liability hinges uniformly has been held to | ¿depend upon the existence of a contract, express or implied, that the doctor will undertake to treat the patient or at least engage in diagnosis as a prelude to treatment. Green v. Walker, 910 F.2d 291 (5th Cir. 1990). Determining the existence of an obligation or duty in a particular situation, including the determination of a physician-patient relationship, is a question of law. Id., citing Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988). Generally, a physician-patient relationship is created only where the physician personally examines the patient. Louisell & Williams, Medical Malpractice, Sec. 8.03, at 8-19 to 20 (1998).

The precise issue before us is whether the physicians, who were contacted by telephone or orally by the physicians performing the medical procedure, can be ha-ble for their advice. I can find no Louisiana case that is precisely on point with the facts presented in the instant case. I, therefore, resort to the jurisprudence of other jurisdictions to ascertain how they have addressed the issue.

First, I note that in Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415, a case cited by the relators, the Louisiana Supreme Court addressed an issue that is somewhat analogous to the instant case. In Hutchinson, a wife sued a hospital and her husband’s psychiatrist for an alleged failure to warn or take reasonable precautions to protect her against the threat of physical violence communicated to the psychiatrist by the husband. The Supreme Court was faced with answering whether the doctor committed malpractice by not warning the wife of the possible danger. The Court found that the doctor’s duty of care to his patient, the husband, was distinct from his duty to warn a third party, the wife, of a possible danger by the patient. Therefore, the wife’s claim of malpractice for failing to warn did not fall under the malpractice statute.

In Corbet v. McKinney, 980 S.W.2d 166, 170 (Mo.App. E.D. 1998), a patient, admitted to a hospital through the emergency room, brought a medical malpractice action against a physician who consulted with the patient’s treating physician by telephone. The Corbet court found:

[W]here the consulted physician merely undertakes to advise the patient’s treating physician, has no explicit contractual obligation to the patient, treating physician, or treating hospital to provide care, and does not take actions which indicate knowing consent to treat a patient who has sought that treatment, such as by examining, diagnosing, treating, prescribing treatment for or charging the patient, no relationship and no duty of care arises. Accordingly, courts which have been asked to determine the existence of a physician-patient relationship in factual situations similar to the one before us have found none.

Accord, Schrader v. Kohout, 239 Ga.App. 134, 522 S.E.2d 19 (1999).

James L. Rigelhaupt, Jr., the writer in What Constitutes Physician-Patient Rela tionship For Malpractice Purposes, 17 A.L.R.4th 132, Sec. 9, discusses Oliver v. Brock, 342 So.2d 1 (Ala. 1976), a malpractice action brought on behalf of a minor patient against a physician who consulted on the treatment of the minor’s injuries as a result of an automobile accident. The court found that the physician had only provided technical medical information, and that a physician-patient relationship had never existed. The requisite relationship was lacking because the physician had never seen the patient and the doctor had never been asked and was not requested to serve as a consultant in the case by the parents or the treating physician.

The language of the initial agreement to pay for services signed by Ms. Campbell, and the surgical consent form signed by the respondent, created a contractual relationship between Ms. Campbell and her treating | ^physicians. One document relating to conditions of services/payment guarantee, which contains paragraph “I”, entitled authorization and consent for treatment, provides in part:

I voluntarily authorize and consent to examinations, tests, procedures, and medical treatment by employees and agents of Pendleton Memorial Methodist Hospital, physicians, and their desig-nees, as deemed advisable in their professional judgment.
* * *
I understand that risks may be associated with diagnosis and treatment and acknowledge that no guarantees have been made to me regarding results of examinations or treatments. (Emphasis added.)

The surgical consent form, signed by the respondent on Ms. Campbell’s behalf, provides in pertinent part:

6(a) No Guarantees: All information given me and, in particular, all estimates made as to the likelihood of occurrence of risks of this or alternate procedures or as to the prospect of success, are made in the best professional judgment of my physician. The possibility and nature of complications cannot always be accurately anticipated and, therefore, there is and can be not guarantee, either express or implied, as to the success or other results of the medical treatment or surgical procedure.
6(g) Consent: I hereby authorize and direct the designated authorized physician/group named together with associates and assistants of his choice, to administer or perform the medical treatment or surgical procedure described in item 2 of this consent form, including any additional procedures or services as they may deem necessary or reasonable including the administration of general or regional anesthetic agent, transfusion of blood or blood components, x-rays or other radiological services laboratory services and the disposal of any tissue removed during a diagnostic or surgical procedure.

Although the respondent relies on the above-cited forms in order to try to create a written or express contractual physician-patient relationship [7between Ms. Campbell and the treating physicians, which was then extended or imputed to the relators when Drs. Gibson and Jones consulted them during surgery, I find nothing in the documents that supports a finding that a physician-patient relationship was created when the treating physicians consulted with the relators. Additionally, when the paragraphs are read in context with the remainder of the documents, it appears that Ms. Campbell, and the respondent as her next of kin, agreed to allow the treating physicians to care for Ms. Campbell to the best of their abilities without any guarantees of success or outcome.

In the instant case, based on the court’s findings in Corbet, supra, the relators did not have a physician-patient relationship with Ms. Campbell. The relators did not create an implied or express contract with Ms. Campbell to treat her because they did not (1) examine her, (2) make any diagnoses in her case, (3) prescribe treatment, or (4) charge or attempt to charge her for services rendered. Additionally, based on Oliver, supra, the relators gave only technical medical information to Drs. Jones and Gibson; stated another way, they merely offered opinions based upon a ease history related to them. Accordingly, no physician-patient relationship existed or can be recognized.

I note that the respondent cites La. R.S. 37:1262(1) for the proposition that the rela-tors’ phone consultations fell within the statute’s definition of the practice of medicine; the respondent reasons therefrom that the relators had a duty to Ms. Campbell. The statute provides:

(l)“The practice of medicine”, whether allopathic or osteopathic, means the holding out of one’s self to the public as being engaged in the business of, or the actual engagement in, the diagnosing, treating, curing, or relieving of any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being, other than himself, whether by the use of any drug, instrument or force, whether physical or | Spsychic, or of what other nature, or any other agency or means; or the examining, either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied to or used by the patient or by another person; or the attending of a woman in childbirth without the aid of a licensed physician or midwife.

Although one can agree that the relators were practicing medicine, no privity existed between them, the respondent, and Ms. Campbell. The breach of a duty, if any, that may have occurred would be the duty owed to Drs. Jones and Gibson, not the respondent or Ms. Campbell. The duty did not flow through Drs. Jones and Gibson to the respondent or Ms. Campbell.

In support, the respondent cites Diggs v. Arizona Cardiologists, Ltd., 198 Ariz. 198, 8 P.3d 386 (Ariz.App. 2000), review denied. In Diggs, the patient’s surviving family members brought a medical malpractice action against the emergency room physician, the cardiologist, and the hospital alleging that patient was brought to the hospital with severe chest pain but that, after the treating physician consulted with the cardiologist, the patient was released by the physician and died of a heart attack three hours later. The court found that the cardiologist had a duty of care to the patient although there was no contractual physician-patient relationship between the cardiologist and the patient.

The case at bar is distinguishable from Diggs. The consultation of the cardiologist in Diggs went beyond the brief consultation in this case. The cardiologist, though not the cardiologist on call at the time, was an employee of the hospital. The cardiologist had the opportunity to become familiar with the patient’s history, as well as the results of the patient’s physical exam. The cardiologist reviewed the results of an EKG performed on the patient. In the case at bar, the respondent does not alleged that the realtors were | flemployees of the hospital; even if they were, the fact that the relators were consulted by telephone or orally made it physically impossible for them to examine Ms. Campbell. In any event, the relators did not examine Ms. Campbell.

The respondent also cites Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984), to support the proposition that the relators had a duty to Ms. Campbell. In Harris, a wrongful death action was brought in connection with the death of one bystander and personal injuries of another bystander resulting from armed robbery at a restaurant. The Louisiana Supreme Court found that the restaurant had a duty, once it hired a security guard, to have the guard protect its patrons from criminal activity of third persons in a reasonable and prudent manner. Harris is inapplicable to the instant case, but even if applicable, is distinguishable. The restaurant in Harris did not have a duty to provide security for its customers. However, when the restaurant chose to provide security, the duty to do so in a reasonable prudent manner was created. The rela-tors, like the physician in Oliver, supra, were not asked and did not volunteer to be consultants in Ms. Campbell’s care. Again, the relators never saw Ms. Campbell, and they never provided her with care or treatment in any way.

I also find unpersuasive the respondent’s alternative argument that if this court finds no physician-patient relationship existed between Ms. Campbell and the relators, the respondent should be allowed to amend her petition to allege that the relators invaded Ms. Campbell’s privacy. The plaintiff appears to urge that the relators, by answering a phone call from the treating physicians, invaded Ms. Campbell’s privacy by participating in the conversation. The relators had no way of knowing what the call was about before it was answered. Additionally, the respondent has not shown that the |inrelators were told any information that disclosed the identity of Ms. Campbell.

A practical consideration also supports a finding that the respondent fails to state a cause of action. That consideration is as follows:

A person presents at an emergency room with a serious condition with which the physician on duty is unfamiliar how to treat the patient, or the better procedure by which to treat. The physician has essentially two options: first, he can consult written medical texts and articles as to how to proceed (for which there may not be time based upon the patient’s condition); alternatively, he can call or orally contact a physician to consult about that which is being presented to him. If the physician who wrote the text or article, or the physician orally contacted, fears that he may be used for what he or she wrote or for what he or she says in the consultation, no physician will write or consult. The physician in the emergency room will, under those circumstances, just have to use his best educated judgment, or as phrased in the slang of today, “wing it.”

To hold the relators liable under the facts and circumstances as are present in the case at bar is unsupportable. The respondent states no cause of action against these relators. Accordingly, I would grant the relators’ writ, reverse the judgment of the trial court, and remand for further proceedings against the remaining defendants.

      . The issue before the court appears to be res nova in Louisiana The issue is not provided for by statute. My conclusions and analysis are based upon the principles set forth in La.C.C. art. 4.

      . The consideration is material to physicians and health care facilities in rural areas where the ability to obtain health care services is most difficult.