author: BROWN, C.J.

text:
    Michael L. GRAY, et al., Plaintiffs-Appellants v. CITY OF MONROE, et al., Defendants-Appellees.
    No. 41,087-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Fewell-Kitchens by Richard L. Fewell, Jr., for Appellants.
    Nanci S. Summersgill, for Appellees.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, C.J.

I,This is a personal injury action arising out of an intersectional collision between a Ford F-150 truck being driven by plaintiff, Jimmy Gardner, and a City of Monroe fire truck. The Ford truck was owned by plaintiff, Michael L. Gray. The driver of the fire truck, Claude Randall Thompson, and the City of Monroe were named as defendants. Following the presentation of plaintiffs’ ease on the merits, defendants moved for an involuntary dismissal.

Plaintiffs claim that the fire truck had a red light; however, the driver of the fire truck testified that he had a green light. The trial court found that the Ford truck was coming off the interstate and went through the intersection at a “rapid rate of speed and he apparently didn’t slow down or try to avoid the fire truck (which) almost got through the intersection before it was struck.” The trial court further found that the fire truck proceeded into the intersection with its siren on and lights flashing. The court observed that the driver of the fire truck “was doing everything he was supposed to do.” The motion for dismissal was then granted. Plaintiffs have appealed. Finding no error, we affirm.

Discussion

La. C.C.P. article 1672(B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff | gand in favor of the moving party or may decline to render any judgment until the close of all the evidence.

A motion for involuntary dismissal requires the trial court to evaluate all of the evidence presented by plaintiffs and render a decision based upon the preponderance of the evidence. King of Hearts, Inc., v. Wal-Mart Stores, Inc., 27,137 (La.App.2d Cir.8/23/95), 660 So.2d 524. An appellate court should not reverse an involuntary dismissal in the absence of manifest error, and there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418.

La. R.S. 32:24, provides in relevant part:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

Plaintiffs cite Cascio v. City of Monroe, 530 So.2d 1170 (La.App. 2d Cir.1988), in which this court held the driver of a City of Monroe fire truck predominately at fault for running a red light and colliding with Cascio. The court wrote that the fire truck operator “should have foreseen that vehicles favored with the green light would be crossing the Louisville |aintersection and he should have proceeded with extreme caution.” Id. at 1174.

This accident occurred on September 29, 2002, and the evidence and testimony showed that plaintiff, Jimmy Gardner, was the driver and only occupant of the Ford truck and that he was going to the hospital where his girlfriend was in labor. Gardner left 1-20 and was traveling east down the ramp to the intersection with U.S. Highway 165 (Business/Civic Center Boulevard). At this intersection, Hwy. 165 is four lanes heading north and south with a fifth lane for southbound traffic turning left (east) onto Calypso Street. The intersection is controlled by a traffic light. Claude Thompson, a Monroe city firefighter, was driving a Monroe fire truck south on U.S. Highway 165 heading towards the intersection with Calypso Street. The fire truck had almost cleared that intersection when it was struck on the left rear quarter panel by the Ford truck with such force as to be knocked over onto its side.

Jimmy Gardner testified that he had no memory of the accident due to his injuries. Nicholas Frith was 15 years old when he witnessed the accident. Nicholas was sitting behind the passenger’s seat of a car driven by his brother, Sydney Frith. Nicholas testified that his brother’s car was going south on Hwy. 165 and had stopped at the red light in the left turning lane when the accident occurred. Their intent was to turn onto Calypso. He observed Gardner turning his head toward the Frith car, but he did not see Gardner looking any other way. Nicholas admitted that, from his vantage point, he could not see either Gardner’s or the fire truck’s signal light but that his brother had a yellow turn light. Nicholas testified that |4Gardner’s truck was going down the exit ramp fast; Gardner’s truck hit the fire truck’s back left side; and the collision lifted the fire truck up and knocked it onto its side.

Daniel McCarty testified that he was sitting beside Nicholas Frith in the back seat of Frith’s brother’s car when the accident occurred. Sydney Frith and . Lisa McCarty, Daniel’s sister, were in the front seat. They were later married and stationed in Guam at the time of trial. Daniel, who was 13 years old at the time of the accident, gave confusing testimony as to who had the red or green light. Like Nicholas, Daniel testified that Gardner looked at their car, but did not look ahead at the fire truck. Daniel did not recall a yellow turn arrow for the Frith vehicle and testified that the Ford was exiting the ramp “a little fast.” Daniel could not see the color of the signal light for either Gardner or the fire truck.

Corporal J.L. Sanders, with the Monroe Police Department for 14 years, worked the accident in question. Corporal Sanders read from the accident report noting that, “It says based on witness information it appears, | J didn’t say it was, it appears that vehicle one (fire truck) had a red light and vehicle two (the Ford) had a green light.” Corporal Sanders also testified that the posted speed limit for the traffic on Hwy. 165 was 35 mph and that the estimated speed of the fire truck was 45 mph. Corporal Sanders further testified that the posted speed for coming off the I-20 ramp was 30 mph, and the estimated speed for the Ford was 50 mph. Both of these estimates came from eyewitnesses to the accident. Corporal Sanders testified that he did not find any brake marks for the Ford which would have indicated that Gardner attempted to brake and avoid the crash.

Claude Randall Thompson was the driver of the fire truck. At the time he had been employed by the Monroe Fire Department for seven years. Prior to the accident at issue, Thompson had never been in a vehicular accident.

Thompson testified that at the intersection before Calypso Street he had a red light and that he had lowered the fire truck’s speed to 2-3 mph, then picked up speed until the fire truck was moving 25-30 mph. Thompson stated that at 300— 400 feet he had a clear view of the Calypso intersection where the accident occurred and that he had a green light.

Thompson stated that he still had the green light when the fire truck entered the intersection. He further testified that the fire truck was well into the intersection when he saw the Ford and knew that it was not going to stop. Thompson stated that he accelerated, trying to avoid a collision.

Gardner had no memory of the accident and his entire case rested upon the testimony of Nicholas Frith and Daniel McCarty which was inconsistent, and ultimately, for the trial court, unpersuasive. Nicholas | fistated that his brother’s car had a yellow turn signal, strongly implying that both the fire truck and the Ford had a red light. Daniel testified that Sydney Frith’s car had a green light (clearly indicating that the Ford had a red light) but had stopped due to the approaching fire truck. Daniel thereafter testified that the Frith vehicle had a red light, calling into question the value of his testimony. Neither Nicholas nor Daniel could see traffic signals for either the fire truck or the Ford. Both Nicholas and Daniel observed Gardner looking to his left, at them, but not looking straight ahead or to his right, which would explain how the Ford drove into the fire truck without attempting to brake or swerve.

The fire truck had clearly preempted the intersection. This intersection was five lanes, and the view for approaching motorists was unobstructed. Gardner was speeding and at best was attempting to beat the light. Gardner was looking to his left and was not attentive to the emergency vehicle to his front. The trial court found that key facts in plaintiffs’ case were not established with reliable certainty. We cannot say that the trial court was manifestly erroneous in finding that plaintiffs failed to establish any negligence on the part of defendants by a preponderance of the evidence.

Conclusion

For reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to plaintiffs-appellants, Michael L. Gray and Jimmy Gardner.

      . At trial Nicholas read from a police report that he wrote at the request of the investigating officer. In the report, Nicholas wrote:
      The black truck was coming down the ramp (which became Calypso Street after it crossed the intersection) and tried to beat the light and looked towards us (opposite from the direction the fire truck came from) and went passed the lights and it hit the fire truck. The fire truck had its lights and sirens on. The black truck that had a green light that was about to turn yellow. The black truck was going down the ramp fast. The fire truck fell on its side.

      . Daniel also read from a report he gave to police:
      We saw the fire truck coming so we stopped. Then we saw the dually (the Ford) coming off the interstate. Then the driver (of the Ford) looked at us and the next thing we saw the dually hit the fire truck. The fire truck had its lights and siren on but the dually had the green light.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Lina BADER and Munir Bader, Individually and as Administrator of The Estates and as Natural Tutor of Amal Bader, Bader Bader, Dana Bader, and Eman Bader, Plaintiffs-Appellants v. KANSAS CITY SOUTHERN RAILWAY COMPANY, City of Bossier City, State of Louisiana through Department of Transportation and Development, Defendants-Appellees.
    No. 41,081-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.
    Rehearing Denied June 23, 2006.

      J. Patrick Hennessy, Patrick A. Stegall, Shreveport, for Appellant.
    Arthur R. Carmody, Jr., Shreveport, for Appellee, Kansas City Southern Railway Company and William C. Swaty.
    Kenneth Mascagni, James R. Sterritt, Shreveport, for Appellee, City of Bossier City.
    Before WILLIAMS, GASKINS and DREW, JJ.
   WILLIAMS, J.

liPlaintiffs, Lina Bader and Munir Bad-er, individually and as administrator of the estates and as natural tutor of the minor children, Amal Bader, Bader Bader, Dana Bader and Eman Bader, appeal a judgment granting summary judgment in favor of the city of Bossier City (“the City”). The district court concluded that plaintiffs’ state law claims were preempted by federal law. For the reasons assigned below, we affirm the district court’s ruling.

FACTS

On June 14, 1998, a vehicle being driven by plaintiff, Lina Bader, was struck by a train owned by Kansas City Southern Railway Company (“KCS”) at a railroad crossing in Bossier City, Louisiana. The collision occurred where Alfred Lane crosses the KCS railroad tracks a short distance to the east of U.S. Highway 71 (“the Alfred Lane crossing”). Lina Bader and her four children, Amal Bader, Bader Bader, Dana Bader and Eman Bader, were injured as a result of the collision.

Subsequently, plaintiffs, Lina and Munir Bader, individually and as administrators and tutors of their minor children, filed the instant lawsuit, naming as defendants KCS, William C. Swatty (the train’s engineer), the City and the State of Louisiana through the Department of Transportation and Development (“DOTD”).

The City filed a motion for summary judgment, contending, inter | 2aim, federal preemption precludes plaintiffs’ claims against the City. The district court granted summary judgment in favor of the City, concluding plaintiffs’ claims were preempted by federal law. This appeal followed.

DISCUSSION

Plaintiffs contend the City failed to meet its burden of proving that plaintiffs’ claims are precluded by federal preemption. Therefore, plaintiffs argue, the district court erred in concluding that the City was entitled to summary judgment.

LSA-C.C.P. art. 966 provides, in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on lathe motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but to determine whether there is a genuine issue of material fact, i.e., an issue on which reasonable persons could disagree. Barringer v. Rausch, 39,553 (La.App.2d Cir.4/6/05), 900 So.2d 232; Peretin v. Caddo Parish School Bd., 39,170 (La.App.2d Cir.12/15/04), 889 So.2d 1190. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn therefrom in the light most favorable to the non-movant. Id.

When federal law “covers” or “substantially subsumes” a particular subject matter, state law is preempted under the Supremacy Clause. U.S. Constitution, Art. VI; Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). Preemption occurs when Congress enacts a federal law that is intended to occupy or control an area of law. When Congress acts to control a particular subject matter, individual states are prevented from interfering in any way with the federal scheme or regulation of that area. Shanklin, supra; CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

|4The Federal Railroad Safety Act (“FRSA”) grants the Secretary of Transportation the authority to “prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103(a). 49 U.S.C. § 20106 contains an express preemption provision, which provides:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.

Following the enactment of the FRSA, Congress established the Highway Safety Act, which, inter alia, created the Federal Railway-Highway Crossings Program (“Crossings Program”). 23 U.S.C. § 130. Thereafter, the Secretary of Transportation promulgated regulations implementing the Crossings Program, including 23 C.F.R. § 646.214(b), which, in part, addresses the adequacy of warning devices installed under the Crossings Program. 23 C.F.R. § 646.214(b) provides, in pertinent part:

(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the | ^crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track Crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable. (4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.

The scope of federal preemption, as it concerns railroad crossings, is quite broad, and' state law claims will be preempted by federal law if the defendant shows the warning devices at the crossing in question were installed using federal funds. Shanklin, supra. Federal preemption is also triggered when a crossing is located within the limits of or near the terminus of a federal-aid highway project. Id.; 23 C.F.R. 646.214(b).

In Furlough v. Union Pacific R.R. Co., 33,658 (La.App.2d Cir.8/31/00), 766 So.2d 751, writ denied, 2000-2929 (La.1/12/01), 781 So.2d 556, following a fatal train/car collision, the plaintiffs filed suit against the railroad company, the train’s engineer, the city of Monroe and various | ¿insurance companies. The railroad company filed a partial motion for summary judgment and, alternatively, a motion in limine, raising the issue of federal preemption. After an exhaustive review of the relevant statutes and jurisprudence, this court concluded that the plaintiffs’ state law tort claims were preempted by federal law. Quoting Shanklin, supra, we stated:

Since the State “determined that warning devices other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the [Federal Highway Administration] (“FHWA”),” and “[o]nee the FHWA approved the project and the warnings signs were installed with federal funds, the federal standard for adequacy displaced [Louisiana law] addressing the same subject, thereby preempting [Plaintiffs’] claim.”

Furlough, 766 So.2d at 759.

The Louisiana Supreme Court considered the issue of federal preemption in Duncan v. Kansas City Southern Railway Company, 2000-0066 (La.10/30/00), 773 So.2d 670, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Plaintiffs herein rely upon Duncan to support their contention that the City failed to meet its burden of proving that the warning devices at the Alfred Lane crossing were installed with the use of federal funds.

In Duncan, the railroad introduced evidence which indicated that federal funds had been used as part of a project to install or replace warning signs at the crossing at which the accident occurred. However, there was no evidence to show that the signs were “replaced or installed” with the use of federal funds. Rather, the evidence indicated that the signs encountered during the project were already in place, “in good condition” and could 17remain in place. The court concluded, absence proof that the warning devices were actually installed or replaced at the crossing with the use of federal funds, the plaintiffs’ state law negligence claims were not preempted by federal law.

Recently, in Ghrigsby v. Kansas City Southern Ry. Co., 38,988 (La.App.2d Cir.10/29/04), 888 So.2d 961, writ denied, 2004-2897 (La.2/4/05), 893 So.2d 885, we considered the issue of whether claims against the state are preempted by 23 C.F.R. § 646.214(b)(3) and (4). We examined Shanklin and its line of cases and held that “state law tort claims against the state and other governmental entities alleging the inadequacy of warning devices at crossings where the' warnings were installed pursuant to the Crossings Program and with the participation of federal funds and approval are preempted by federal law.” Ghrigsby, 888 So.2d at 968-69.

In the instant case, in support of its motion for summary judgment, the City introduced into evidence the deposition of William Shrewsberry, the Highway/Rail Safety Engineer for DOTD. Shrewsberry testified that the Alfred Lane crossing was included in Federal Highway Safety Project No. 7370416, a project which utilized federal funds to install warning devices. Prior to Project No. 7370416, there were no advanced warning signs at the Alfred Lane crossing. According to Shrewsber-ry, DOTD records and crossing inventories indicate that the warning devices at the Alfred Lane crossing, two cross buck signs, were placed pursuant to the federally funded Project No. 7370416.

Additionally, Bruce Easterly, the DOTD district manager |sadministrator whose area included Bossier City, testified that Project No. F-174(7) was completed with federal funds. Pursuant to that project, U.S. Highway 71 was widened to four lanes, including the left turn lane and the approach to Alfred Lane used by plaintiff in this case.

In Duncan, supra, the evidence revealed that the warning devices at the railroad crossing were in place prior to the federally funded highway project, and there was no evidence to indicate that the signs had been replaced. In this case, our de novo review of the record reveals that the City presented credible evidence to establish that the plaintiffs’ claims are preempted, and plaintiffs failed to come forth with any evidence to demonstrate an issue for trial. As stated above, Shrewsberry’s testimony establishes that the signs at the Alfred Lane crossing were not in place prior to Federal Highway Safety Project No. 7370416 and were placed pursuant to that project. Plaintiffs produced no evidence to the contrary. For these reasons, we find that summary judgment was proper.

CONCLUSION

For the reasons stated above, the trial court’s grant of summary judgment in favor of the City is hereby affirmed. Appeal costs are assessed to appellants, Lina Bad-er and Munir Bader, individually and as administrator of the estates and as natural tutor of the minor children, Amal Bader, Bader Bader, Dana Bader and Eman Bad-er.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW, and LOLLEY, JJ.

Rehearing denied.

BROWN, J., would grant rehearing.

      . The trial court granted summary judgment in favor of DOTD, and this court affirmed, concluding plaintiffs "failed to produce evidence which would satisfy their burden of proving that the off-system railroad crossing ... was in the care or custody of the state, or that DOTD assumed a duty to maintain the warning devices at this crossing." Bader v. Kansas City Southern Railway Co., 36,536 (La.App.2d Cir. 12/20/02), 834 So.2d 1, 5.

      . Due to its conclusion with regard to federal preemption, the district court declined to address the City's remaining arguments, to wit: (1) no legal duty was breached; (2) the City is entitled to statutory immunity; (3) the evidence was insufficient to support plaintiffs' claims.

      . In reaching this conclusion, we need not address the City's answer to the appeal in which it raised arguments with regard to breach of duty, insufficient evidence and statutory immunity,


author: CARAWAY, J.

text:
    Sylvester HARDMAN d/b/a Starz, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 41,058-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Hersy Jones, Jr., Shreveport, for Appellant.
    Dannye W. Malone, Shreveport, Mary E. Winchell, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   CARAWAY, J.

| ^n this case, the applicant for zoning permits received approval from two city administrative bodies, only to have their actions reversed by the city council. Instead of appealing the council’s denial of his zoning requests in a timely manner to the district court, applicant later filed this action for damages against the city and its zoning administrator. Following the presentation of plaintiffs case, the trial court dismissed the suit. We affirm.

Facts

In 2001, Sylvester Hardman (“Hard-man”) leased space in South Park Mall formerly occupied by bar and restaurant tenants. Hardman wanted to operate a teen club, which he named Starz. The premises included a dance floor left over from these other tenants. Hardman was advised that because of the dance floor, the zoning use classification for the application and permitting process would be considered a dance hall, not a teen club, and this required the approval of the Metropolitan Planning Commission (“MPC”) of the City of Shreveport as a special exception use in the B-3 district. Likewise, Hardman’s plan to keep the club open until 2:00 a.m. would require the approval of a variance of the normal business hours in the B-3 district by the Zoning Board of Appeals (“ZBA”).

The record shows that on July 31, 2001, Hardman appeared at a public hearing of the MPC and obtained provisional approval for Starz to operate as a dance hall by a 6-1 vote. The hearing transcript indicates that 7 persons opposed Hardman’s request. Hardman’s six month approval was |2subject to the condition that three law enforcement officers patrol the mall parking lot while Starz was open.

After obtaining approval to operate his business as a dance hall, Hardman next requested a variance from the ZBA to extend his operating hours past midnight. He appeared at a public hearing and obtained this permission by a 6-0 vote on July 11, 2001. The transcript shows that four persons opposed extending the hours of operation.

Thereafter, a group of individuals, which Hardman identifies in his petition as the Lorick Group, filed written requests/appeals of the MPC and ZBA decisions to the Shreveport City Council (“City Council”). On August 14, 2001, the City Council considered the appeals of the Lorick Group and voted to overturn the decisions of the MPC and ZBA. The record indicates that although Hardman was present at the City Council meeting, he did not formally appear to offer information and argument to support his requests for the special exception use and variance. Such an appearance right is duly provided to applicants and other parties by the Shreveport Code of Ordinances.

One year after the decision of the City Council, Hardman filed this suit against the City and Charles Kirkland, the zoning administrator of the MPC. The suit alleges damages for his business losses and humiliation arising from the City Council’s actions, which Hardman asserted as “arbitrary, capricious, and a denial of due process.” Following Hardman’s presentation of evidence at trial, the trial court found that he failed to prove that the City Council’s actions were arbitrary and capricious, and the suit |swas dismissed. Hardman now appeals.

Discussion

In paragraph 11 of his petition, Hard-man recites the procedural provisions of the Shreveport Code of Ordinances relating to the zoning remedies which are at the heart of this controversy:

Section 106-48 and Section 106-49 of the Shreveport Code of Ordinances entitles “any person aggrieved” by the decision of the city council the right to appeal the decision to a court of competent jurisdiction provided that such petition is filed within thirty days of such decision by the city council.

Despite the right to appeal the City Council’s unfavorable decisions, Hardman permitted the thirty-day time period to elapse, implicitly accepting as final those decisions which he now asserts as arbitrary and capricious actions of a legislative body. The actions of the City Council denying him the allegedly appropriate zoning remedies is the asserted source of this action for damages. Finding that no such cause of action exists, we now affirm the trial court’s dismissal of Hardman’s claim on that peremptory ground.

Significantly, Hardman cites and contrasts two zoning cases in brief, Clark v. City of Shreveport, 26,638 (La.App.2d Cir.5/10/95), 655 So.2d 617 and King v. Caddo Parish Comm’n, 97-1873 (La.10/20/98), 719 So.2d 410. Both involve zoning appeals instituted within thirty days of decisions by legislative bodies. Such appellate procedure was provided by the City of Shreveport ordinance in Clark, the same as in this case, and by the Caddo | .(Parish Code of Ordinances reviewed in King. There is also a thirty-day rule for similar zoning appeals of rulings of municipalities governed by La. R.S. 33:4727. The actions of the legislative bodies in Clark and King which were alleged to have been arbitrary and capricious did not expose those political subdivisions to potential damages because those rulings were not the last step in the zoning process. The final step in this process ends in the courts and no right to damages, delic-tual or otherwise, arises from a statutory process which ultimately results in an adjudicated zoning determination.

In the present case, Hardman never sought an appeal to the district court from the August 14, 2001 actions of the City Council. Had such appeal been pursued, the same test measuring the City Council’s action for arbitrary and capricious effect would have been applied. The remedy in such instance would have been a judicial determination granting Hardman zoning relief and avoiding the damages which he now claims. He may not choose to forgo the established procedure to vindicate his zoning rights and substitute in its place a different cause of action for damages.

Accordingly, the ruling of the trial court dismissing appellant’s claims is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . An appellate court can raise the peremptory exception of no cause of action on its own motion. La. C.C.P. art. 927; Johnston v. Lloyds Ins. Co., 37,489 (La.App.2d Cir., 8/20/03), 853 So.2d 738; writ denied, (La.1/9/04), 862 So.2d 988.


author: MOORE, J.

text:
    Keith HARPER, Plaintiff-Appellant v. Jerry GOODWIN, et al, Defendant-Appellees.
    No. 41,053-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.
    Keith Harper, Pro Se.
    Louisiana Department of Justice, by E. David Gilmer, for Appellees.

      Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

hKeith Harper, an inmate at David Wade Correctional Center (“DWCC”), appeals a summary judgment dismissing his claims for injunctive relief and damages against prison officials. He alleged that after sustaining an anaphylactic reaction to a yellow jacket sting, he was the victim of “medical negligence, deliberate indifference, denial of medical care, and improper work classification.” We affirm.

Factual Background

Harper entered DWCC in June 2001. His initial intake screening showed he was healthy with no known allergies; he was issued a regular work duty status.

On October 23, he was working in a field outside the compound when a yellow jacket stung him on the right arm. He alleged that he fell to the ground unconscious and was taken to the DWCC infirmary. He was found to be sweaty and clammy with a BP of 60/38, elevated pulse and temperature of 97.6°; he was given 50 mg of Benadryl and a saline IV, and taken to LSU Medical Center (E.A.Conway) in Monroe. Later that day he was returned to DWCC, alert and oriented; the next day he had a rash on his arms, chest and back, for which he was given regular doses of Benadryl. His condition gradually improved.

Dr. Pam Hearn, the medical director at DWCC, concluded that Harper’s medical condition would not prevent him from working in the field; she also felt that he was just as likely to receive a bee sting on the compound as in the field. She wrote a duty status report allowing him to return to regular work but to carry a 50 mg Benadryl on his person “in caseDof a sting because Benadryl is an antihistamine and a first-line treatment for hypersensitivity disorder.”

On October 30, Harper filed an administrative remedy procedure request (“ARP”), alleging that reassigning him to work in the field posed an unnecessary risk to his health and displayed deliberate indifference to his physical safety. While this was pending, he was apparently assigned to dormitory housing.

On July 5, 2002, a correctional officer filed a grievance against other prison officials but included unspecified assertions about Harper. On July 11, Harper was reassigned to Crew 1 (field work). According to Jerry Goodwin, deputy warden at DWCC, this was because of “inappropriate behavior whereby inmate Harper was found creating a hostile work environment among DWCC employees.” On July 15, Harper filed another ARP, again alleging that because of his allergic condition, he could not risk being exposed to stings.

On July 23, Harper was working in the field when he was again stung by a yellow jacket, this time on his left arm. He used the Benadryl as directed and was taken to the infirmary. Nurse Austin found his BP was 130/78 and his other vital signs normal. She directed him to continue taking Benadryl and using calamine lotion. According to Harper’s petition, Nurse Austin refused to issue him no-duty status, but matters of record show that he received three “regular with restrictions” reports through August 8. According to Sarah Bilberry, the classification supervisor at DWCC, Harper was reassigned to Vo-Tech carpentry on August 11.

| ¡Procedural History

In late August 2002, Harper filed the instant petition for damages and injunctive relief. He named as defendants Jerry Goodwin, Dr. Hearn, Nurse Austin, Ms. Bilberry, and other prison officials. In a predocketing review as required by La. R.S. 15:1184 A(2), the district court found the petition stated a claim but did not warrant immediate injunctive relief. The petition was officially filed on October 1.

After filing an answer that asserted general denials, the defendants moved for summary judgment in August 2005. They alleged that Harper could not show they breached any duty to him during his confinement at DWCC. In support, they offered five affidavits with attachments.

Dr. Pam Hearn, the medical director, and Nurse Austin, who had been employed at DWCC for some 4½ years, recounted Harper’s medical treatment after both bee stings, part of which is summarized above. Dr. Hearn testified that she did not assign him to work in the field, but that, his condition would not prevent him from doing so. She added that neither she nor any other DWCC medical personnel ever ignored his complaints. Nurse Austin similarly testified that she did not participate in determining Harper’s duty status or selecting his job assignments, and she denied being negligent or indifferent to his medical needs.

Jerry Goodwin, the deputy warden, testified that reassignment boards met daily to make necessary job, housing or custody changes as outlined in the DWCC classification program, a copy of which was attached to his affidavit. He stated that in accord with the program, a board reassigned DHarper to a field crew in July 2002 because of “inappropriate behavior * * * creating a hostile work environment among DWCC employees,” and transferred him to Vo-Tech carpentry from August through October 2002. Goodwin added that he was not a physician and did not participate in diagnosing Harper’s condition; however, he maintained he did not retaliate, and was neither negligent nor indifferent toward Harper’s medical needs.

Ms. Bilberry, the supervisor in charge of classification, reiterated much of Goodwin’s testimony, adding that Harper’s job assignments between October 23, 2001 and October 2, 2002 were based on his medical assignment of regular duty with no restrictions, and resulted from decisions by the Reassignment Board.

Angie Huff, another deputy warden, testified she was familiar with the ARP grievance procedure and had reviewed Harper’s claims. She had evaluated his July 2002 ARP and the first-step response submitted by DWCC personnel; this ARP was denied because of medical findings from an examination of his medical records. Although she was not a physician, she maintained she was never negligent or intentionally indifferent to Harper’s medical needs.

Harper filed a verified memorandum in opposition to the motion for summary judgment. He attached no affidavits or other documents, but argued that despite having specific prior knowledge of his severe allergy to bee stings, the defendants arbitrarily reassigned him to a work detail that placed him at greater risk of being stung. He also “strongly disputed” that his July 2002 reassignment to the work crew was a result of inappropriate 1 ¡¡behavior; he asserted there was no incident report (or “unusual occurrence report” or “rule violation report”) to show that he had done anything wrong, and in fact he had merely witnessed an altercation between two DWCC employees, one of whom he named.

At the hearing in September 2005, the defendants argued that Harper had received prompt and appropriate medical treatment after each bee sting; that medical personnel had placed him on regular duty status, and his job assignments were not governed by the defendants, but by DWCC’s classification board. They also reiterated that inmates cannot be shielded from insects, either in the field or on the compound, but that the defendants had taken reasonable measures to minimize any adverse reaction should he get stung.

Harper conceded that his suit was not based on the first yellow jacket sting, but rather on the “arbitrary reassignment by the defendants that specifically placed me at a greater risk of harm” starting in October 2002. He denied that he had been reassigned to the field for inappropriate behavior, citing the defendants’ failure to produce any incident reports. He insisted he was willing to work, only not in the fields where he might be fatally stung.

The district court denied the request for injunctive relief and granted summary judgment in favor of all defendants. Harper has appealed, raising three assignments of error.

| sDiscussion

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Argonaut Great Cent. Ins. Co. v. Hammett, 39,024 (La.App. 2 Cir. 11/17/04), 887 So.2d 704, writ denied, 2004-3172 (La.2/25/05), 894 So.2d 1151. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

Appellate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952.

Prison authorities owe a duty of reasonable care to protect inmates from harm. Hardy v. Foti, 2001-1257 (La.App. 4 Cir. 2/27/02), 812 So.2d 792; Williams v. Kelone, 560 So.2d 915 (La.App. 1 Cir.), unit denied, 567 So.2d 107 (1990). They also owe a duty to provide inmates with reasonable medical care. Robinson v. Stalder, 1998-0558 (La.App. 1 Cir. 4/1/99), 734 So.2d 810; Roy v. Phelps, 488 So.2d 468 (La.App. 3 Cir] 71986). Inmates are not entitled to ideal work and living conditions, but only those reasonably within their medical limitations. McDowell v. Taylor, 1999-1587 (La.App. 1 Cir. 6/23/00), 762 So.2d 1149; Williams v. Kelone, supra.

Harper’s third assignment of error contends that genuine issues of material fact existed regarding prison officials’ duty to use reasonable care to protect him from harm. The existence of a duty is question of law, not fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Klein v. Cisco-Eagle Inc., 37,398 (La.App. 2 Cir. 9/24/03), 855 So.2d 844. The defendants’ duty is established under Hardy v. Foti, supra, and the only possible factual issue was whether Harper produced any evidence to show that they breached it.

Harper’s second assignment of error contends the district court erred in failing to find a genuine issue of material fact as to whether he received appropriate medical care and treatment, or was intentionally denied such treatment. This record clearly shows that Harper received prompt medical treatment after each sting. It also shows that Dr. Hearn ordered Harper to carry bee sting medication on his person at all times; by using this after the second sting, he avoided the serious reaction he suffered with the first sting. On this record there is no genuine issue that Harper received prompt and appropriate medical treatment.

Harper’s first assignment of error contends the district court erred in failing to find a genuine issue of material fact as to whether he was arbitrarily reassigned without due regard for his health status. As noted, |sboth Jerry Goodwin, a deputy warden, and Ms. Bilberry, a classification supervisor, testified that Harper’s work assignments were made by a reassignment board in accord with the medical reports. There is no showing that any of the defendants herein were members of this board, or that the work assignments exceeded Harper’s medical capacity as documented by Dr. Hearn or the nurses. The record discloses no breach of duty.

In his memorandum and at the hearing, Harper argued that the claim of inappropriate behavior was false, as evidenced by the lack of incident reports, with the result that his July 2002 reassignment to the field was arbitrary. While this may suggest that some DWCC officials could have harbored vindictive motives in reassigning him to a less desirable work detail, it does not show that they breached their duty to assign work within his medical capacity. Harper was not entitled to an ideal work assignment, only one within his medical limitations. McDowell v. Taylor, swpra; Williams v. Kelone, supra. The possibility that other prison officials may have had ulterior motives to reassign Harper does not create a genuine issue of material fact in this litigation.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by the plaintiff, Jerry Harper, to the extent permitted by La. C.C.P. art. 5188.

AFFIRMED.


author: LOLLEY, J.

text:
    Sidnah COOLEY, et al., Plaintiffs-Appellants v. GAMBLE GUEST CARE CORPORATION d/b/a South Park Guest Care Nursing Home, Defendants-Appellees.
    No. 41,042-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Nelson & Hammons, Shreveport, by Phylliss Bradshaw Hennessee, Leesville, for Appellants.
    Wilkinson, Carmody & Gilliam, by Mark E. Gilliam, Shreveport, for Appellees.
    Before GASKINS, PEATROSS & LOLLEY, JJ.
   LOLLEY, J.

hSidnah Cooley, Cathy Cooley, and Carol Cooley Pettis (collectively, the “Cooleys” or “appellants”) appeal a judgment sustaining an exception of prematurity and dismissing their suit for damages against Gamble Guest Care Corporation (“Gamble Guest Care”), which owned and operated the South Park Guest Care Nursing Home in Shreveport, Louisiana. For the following reasons, the judgment of the trial court is affirmed.

Facts

Sidnah Cooley, the widow of Truman Cooley, and Cathy and Carol, their daughters, filed a petition for damages against Gamble Guest Care in connection with his death. The Cooleys claim that Mr. Cooley began to reside at the South Park Guest Care Nursing Home on August 1,1999 and that shortly after moving into the nursing home he developed severe decubitus ulcers. Mr. Cooley’s condition required that he be admitted to the hospital on two separate occasions and, as the Cooleys allege, ultimately resulted in his death on January 27, 2000.

As a result of these events, Mr. Cooley’s daughters filed a medical malpractice claim against Gamble Guest Care with the Patients’ Compensation Fund. Pursuant to this complaint, a medical review panel was constituted whose term, pursuant to an order signed on May 27, 2004, was set to expire on December 6, 2004. When it became evident that the medical review panel would not be able to render its opinion prior to the expiration of its term, Gamble Guest Care filed a motion to extend the term on December 3, 2004, stating that the Cooleys’ trial counsel had no I ^objection to the extension. On December 8, 2004, the trial court signed an order extending the life of the panel until March 6, 2005.

On January 6, 2005, the Cooleys filed a petition for damages with the trial court. In it they claimed that the medical review panel expired on December 6, 2004, because no order extending its term had been signed by that date. Gamble Guest Care responded by filing a dilatory exception of prematurity arguing that its filing of the motion to extend the panel’s term prior to the expiration date was sufficient to prevent the dissolution of the panel. The exception was argued on July 5, 2005, after which the trial court took the matter under advisement. On July 15, 2005, the trial court signed a judgment sustaining the exception, and this appeal ensued

Discussion

Louisiana R.S. 40:1299.47 provides for medical panel review in claims against health care providers covered by that part and proscribes the commencement of a suit against a qualified provider until the claim is presented to a medical review panel. Accordingly, the medical review panel proceedings suspend the running of prescription on the claim against qualified health care providers until 90 days after either: (1) the claimant is notified of the review panel’s opinion or dissolution by certified mail; or, |s(2) the expiration of any court-ordered extension of the panel. La. R.S. 40:1299.47(A)(2)(a) and (B)(3).

The initial panel term is 12 months following notification of the parties of the selection of an attorney-chairman. Court-ordered extensions of this initial term are provided for under La. R.S. 40:1299.47 B(l)(b) which allows any party to petition the court for an extension of the 12-month period for good cause shown. However, “[a]fter the twelve month period provided for in this Subsection or any court-ordered extension thereof, the medical review panel established to review the claimant’s complaint shall be dissolved without the necessity of obtaining a court order of dissolution.” La. R.S. 40:1299.47(B)(l)(b).

In granting Gamble Guest Care’s exception of prematurity, the trial court noted that the extension was agreed upon by the parties and the motion to extend the life of the panel was filed before the expiration of the previously granted extension. The Cooleys argue that because the previous extension expired before the signing of a new extension, the panel had already dissolved and the new extension order was of no effect.

This very issue was addressed in Crabtree v. Vockroth, 01-1286 (La.App. 5th Cir.09/30/02), 827 So.2d 525, writ denied, 2002-2835 (La.01/31/03), 836 So.2d 77. In that case, the Fifth Circuit concluded that:

In this matter, the trial court found that the medical review panel dissolved by operation of law. We find that the trial court erred in this decision. We find that the timely filed Motion to Extend the Life of the Medical Review Panel, along with the trial court’s granting of that motion, was sufficient to prevent the dissolution of the medical review panel.
|Jn this case, application was timely filed. The defendants acted appropriately to preserve their rights, and these rights should not be denied because of events outside of their control.

Id. at 525.

Here, the trial court declined to adopt in full the reasoning in Crabtree, supra, but found instead that the timely filing combined with the unopposed nature of the motion warranted giving effect to the extension and, thus, sustaining the exception of prematurity. We find the trial court’s conclusion to be correct without the need to make such a distinction. While the fact that the Cooleys’ attorney initially agreed to the extension may appear to cast their current objection as more dubious, that fact should not be construed as a prerequisite to the validity of a medical review panel extension signed after the expiration of the previously controlling term but requested prior thereto. There are many legitimate reasons why an extension might be sought just before the expiration of a panel’s term and for which an order cannot be obtained until after the expiration date passes. Some are entirely out of the control of the parties and cannot be planned for, such as the illness of panel members. Also, some motions may require a contradictory hearing which due to scheduling issues cannot be docketed before the expiration of a panel’s term.

Whether or not good cause for the extension exists is for the trial court to determine. It should not be subject to review by a subsequent trial court in considering the merits of a dilatory exception of prematurity. For this reason, we find inapposite the Cooleys’ arguments as to whether Gamble Guest Care could have moved for an extension earlier and obtained the order before the expiration. Those objections go to whether the | ^extension being requested was for “good cause” and were implicitly waived when they expressed no opposition to the motion. Accordingly, we agree with the holding in Crabtree, supra, that the timely filing of a motion for the extension of a medical review panel’s term together with the trial court’s granting of that motion is sufficient to prevent the dissolution of the medical review panel.

Conclusion

For the foregoing reasons, the judgment of the trial court sustaining Gamble Guest Care Corporation’s exception of prematurity is hereby affirmed. Costs of this appeal are to be borne by the appellants.

AFFIRMED.

      . Both on appeal and at the argument before the trial court, counsel for the Cooleys admitted that she was contacted before the motion for an extension was filed and that she expressed no objection to it.

      . According to representations made by counsel at the argument on the exceptions, the medical review panel’s term was subsequently extended to October 6, 2005. According to Gamble Guest Care's brief on appeal, the panel issued its opinion on August 23, 2005, after Gamble’s exception of prematurity was granted and while the present appeal therefrom was pending.


author: AMY, Judge. PAINTER, J.,

text:
    Robert Neil GUILBEAU, et al. v. BAYOU CHATEAU NURSING CENTER, et al.
    No. 2005-1131.
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 2006.

      Dorsey C. Martin, III, Atkinson & Martin, Baton Rouge, LA, for Plaintiffs/Appellees, Robert Neil Guilbeau, Bernice Guilbeau Kimball, Charlene Guil-beau Wilkinson, Earl James Guilbeau.
    Milo A. Nickel, Jr., The Nickel Law Firm, Lake Charles, LA, for Defendant/Appellant, Louisiana Patients Compensation Fund.
    Gregory Engelsman, Bolen, Parker & Brenner, Alexandria, LA, for Secondary Defendant/Appellant, Bayou Chateau Nursing Center.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

It The plaintiffs filed suit against the defendant nursing home, seeking damages stemming from fall-related injuries sustained by their mother, a patient at the facility. She died approximately two months after the fall. Pursuant to stipulations as to liability for the fall, the trial court awarded damages on the plaintiffs’ survival action, damages related to loss of chance of survival and acceleration of death, medical expenses, and attorney’s fees. The defendant and the Louisiana Patient’s Compensation Fund appeal. For the following reasons, we vacate in part, affirm in part as amended, and reverse in part.

Factual and Procedural Background

The plaintiffs are four of the children of Murdis D. Guilbeau. Ms. Guilbeau was a resident at the Bayou Chateau Nursing Center, Inc. (Bayou Chateau) on October 22, 2002 when she had a fall that resulted in fractures of her clavicle and left pelvic inferior pubic ramus. According to the record, the plaintiffs were notified of the fall on October 24, 2002. Thereafter, Ms. Guilbeau was hospitalized for her injuries. Subsequent to her release from the hospital, Ms. Guilbeau was transferred to the skilled nursing facility at Baton Rouge Health Care Center. Ms. Guilbeau died on December 23, 2002.

After proceedings before a Medical Review Panel, the plaintiffs filed suit against Bayou Chateau in April 2004, alleging that its employees’ failure to attend/restrain Ms. Guilbeau and the failure to more timely report the fall was a breach of the applicable standard of care and the cause of Ms. Guilbeau’s injuries. The plaintiffs prayed for damages related to a survival action and for wrongful death. Additionally, the plaintiffs sought medical expenses and attorney’s fees. The latter |aprayer was related to their claim that the actions/omissions of the defendant’s violations were violations of the Louisiana Nursing Home Residents’ Bill of Rights. See La.R.S. 40:2010.8.

At the commencement of the bench trial, the parties stipulated that “negligence and/or breach of the applicable standard of care by its employees directly caused Mur-dis D. Guilbeau to sustain a fracture of her clavicle and of her left pelvic inferior pubic ramus.” The parties further stipulated that the defendant’s “employees’ negligence and failure to immediately report, document and treat Murdis D. Guilbeau’s injuries which resulted from her fall, while said employees were in the course and scope of their employment with defendant constituted a violation of the Louisiana Nursing Home Resident’s Bill of Rights, i.e., La.R.S. 40:2010.8.”

The trial court entered liability and, in a judgment dated May 31, 2005, awarded damages as follows: $100,000.00 for survival action damages; $50,000.00 for “loss of chance of survival and acceleration of death” damages; $41,612.62 in medical special damages. The judgment further includes an award of “the additional sum of one-third of all amounts recovered as set forth herein as attorneyf’s] fees for violation of the Louisiana Nursing Home Resident’s Bill of Rights, including any appeal which may be necessary.” An amended judgment, dated June 13, 2005, includes an additional paragraph, indicating that “as a Qualified Healthcare Provider, the liability of Bayou Chateau Nursing Center, Inc. is limited by the Medical Malpractice Act to ONE HUNDRED THOUSAND No/100 DOLLARS ($100,000.00.), plus legal interest in accordance with La.R.S. 40:1299.42 from January 10, 2003 until paid.”

| sBayou Chateau subsequently filed a Motion for New Trial, questioning the award for loss of chance of survival and the award of medical expenses, which included the medical expenses for nursing home care after the accident, “when it was clear that plaintiffs’ decedent would have required said nursing [home] care regardless of whether or not she had been injured.” The trial court denied the motion.

In July 2005, the Louisiana Patient’s Compensation Fund (the LPCF) intervened in the matter. The LPCF and Bayou Chateau filed motions for appeal for review of the original judgment as well as the amended judgment of June 13, 2005. The LPCF assigns the following as error in its brief to this court:

1. The Trial Court erred by signing an “amended judgment” which substantively changed a previously rendered final judgment.
2. The Trial Court erred by determining that attorney fees may be awarded pursuant to the Medical Malpractice Act and or that the Fund may be liable for attorney fees pursuant to the Medical Malpractice Act.
3. The court below erred by awarding the full measure of damages relative to the survivor claims rather than awarding the plaintiffs their virile share of those damages.
4. The Court below erred by awarding “loss of chance and acceleration of death” damages when all medical evidence established that there was no association between the plaintiffs death and the injuries sustained by the plaintiff.
5. The court below awarded damages that were excessive under the circumstances.

Bayou Chateau advances the following assignments of error:

1. The trial court erred in awarding $100,000.00 to Ms. Murdice [sic] Gu-ilbeau’s family for her pain and suffering for the two months prior to her death from a fractured clavicle and hairline fracture of the pubic ramus, which did not require surgery, given Ms. Guilbeau’s extremely poor health condition prior to the accident.
|42. The trial court erred in making any award for a loss of chance of survival when no medical testimony was submitted that established any loss of a chance by Ms. Guilbeau, and further, the medical testimony submitted did not correlate any relationship of the injuries to the death.
3. The trial court erred in awarding the full-billed amount of the medical bills from the providers after the accident when the plaintiff did not actually pay any of the bills and Medicare paid a greatly reduced amount. Further, the trial court made awards for ordinary nursing home care, which would have been incurred regardless whether or not Ms. Guilbeau had been injured.
4. The trial court erred in awarding the full 1/3 contingency fee on the total award given the fact that liability was stipulated to and the trial proceeded on the issue of damages taking only four hours to try.
5. The trial court erred by awarding the full amount of damages when only four of five of the plaintiffs minor [sic] children filed suit.

Discussion

Amended Judgment

The LPCF asserts that the provision in the June 13, 2005 amended judgment recognizing Bayou Chateau’s $100,000.00 limitation of liability under the Medical Malpractice Act substantively alters the original judgment. It seeks recognition of the judgment as an absolute nullity. Bayou Chateau asserts that the amendment reflects a provision erroneously omitted from the original judgment and is limited to a change in the judgment’s phraseology. The plaintiffs also assert that the amended judgment did not substantively change the judgment as “said amended judgment was intended to limit the liability of Bayou Chateau for damages resulting from malpractice under the Medical Malpractice Act and not to the entire award or to damages arising under the NHRBR Act for nonmalpractice acts.” The plaintiffs further note that “[t]he status of Bayou Chateau as a ‘qualified health care provider’ was never in dispute^]” |fiand that “Bayou Chateau’s liability for damages arising under the Louisiana Malpractice Act is limited by statute.”

Louisiana Code of Civil Procedure Article 1951, entitled “Amendment of judgment,” provides that:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

In Bourgeois v. Kost, 02-2785, pp. 7-8 (La.5/20/03), 846 So.2d 692, 696 (citations omitted), the Louisiana Supreme Court remarked that:

It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. The trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. Without a specific statutory grant of authority, the trial court is limited to the general authorization for amending final judgments provided in Code of Civil Procedure Article 1951. As stated above, Article 1951 limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but does not authorize a trial court to make substantive amendments to final judgments. Courts have uniformly held substantive amendments to judgments made without recourse to the proper procedures, i.e. by way of a timely motion for a new trial or by appeal, to be absolute nullities.

In this case, the revision sought was not, at that time, pursued through a timely motion for new trial or by appeal. Nor does the record indicate that the parties consented to the change. See Villaume v. Villaume, 363 So.2d 448 (La.1978). Rather, the record contains the original judgment of May 31, 2005 and the amended judgment of June 13, 2005, with no explanation for the amendment. Comparison of |fithese two judgments reveals the substantive nature of the amendment, one which does not fit within the exceptions of La.Code Civ.P. art. 1951(1) and (2).

In addition to the provisions of the original judgment, the amended version includes a provision stating that: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as a Qualified Healthcare Provider, the liability of Bayou Chateau Nursing Center, Inc. is limited by the Medical Malpractice Act to ONE HUNDRED THOUSAND No/100 DOLLARS ($100,000.00.), plus legal interest in accordance with La.R.S. 40:1299.42 from January 10, 2003 until paid.” This determination as to Bayou Chateau’s status as a qualified healthcare provider and the related statement as to limitation of liability is clearly substantive insofar as these inclusions add to or take away from the original judgment. Accordingly, the erroneously amended judgment of June 13, 2005 is absolutely null and is hereby vacated. We focus, then, on the judgment of May 31, 2005.

Liability for Attorney’s Fees

The LPCF asserts that the limitation of liability inserted into the amended judgment rendered it liable for the attorney’s fees awarded by the trial court for violations of the Nursing Home Residents’ Bill of Rights. It argues that, pursuant to La.R.S. 40:1299.41(1), it is only liable for “malpractice,” and that Nursing Home Residents’ Bill of Rights violations are not included within this term. The LPCF contends that reinstatement of the original judgment renders this assignment moot. Conversely, in its appeal, Bayou Chateau argues that the LPCF is liable for the attorney’s fees awarded under the Nursing Home Residents’ Bill of Rights. It asks that this court amend the original judgment to indicate that it is a Qualified Health Care provider and that its liability is limited to the first $100,000.00 of the damages l7arising from the malpractice claim. We address this issue to resolve the question of whether the LPCF is liable for the attorney’s fees awarded for the violation of the Nursing Home Residents’ Bill of Rights.

First, we conclude that it was error for the trial court to fail to include language in the original judgment indicating that Bayou Chateau is a Qualified Health Care Provider and that, as such, it is not liable for an amount in excess of one hundred thousand dollars plus interest for damages arising from the malpractice claim. See La.R.S. 40:1299.42. We amend the judgment accordingly.

We further amend the judgment to reflect that the LPCF is not liable for attorney’s fees awarded pursuant to the Nursing Home Residents’ Bill of Rights. Specifically, the LPCF and the limitation of liability for Qualified Health Care Providers are creations of the Medical Malpractice Act. See La.R.S. 40:1299.41, et seq. Reference to the provisions within the relevant statutory scheme indicate that both the limitation of liability and the LPCF exist within the confines of the Medical Malpractice Act. For instance, La.R.S. 40:1299.42(B)(2) indicates that “A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.” (Emphasis |sadded.) See also Sewell v. Doctors Hosp., 600 So.2d 577 (La.1992). Furthermore, in establishing the LPCF, La.R.S. 40:1299.44(A)(1), provides that:

The state recognizes and acknowledges that the fund and any income from it are not public monies, but rather are private monies which shall be held in trust as a custodial fund by the state for the use, benefit, and protection of medical malpractice claimants and the fund’s private health care provider members, and all of such funds and income earned from investing the private monies comprising the corpus of this fund shall be subject to use and disposition only as provided by this Section.

(Emphasis added).

In this case, the trial court recognized malpractice and violations of the Nursing Home Residents’ Bill of Rights. However, its award of attorney’s fees stems from the Nursing Home Residents’ Bill of Rights. See La.R.S. 40:2010.9. No such | gprovision is contained within the Medical Malpractice Act. In Smith v. State, Dep’t of Transp. & Dev., 04-1317, p. 17 (La.3/11/05), 899 So.2d 516, 527, the supreme court reiterated “that attorney fees are not allowed except where authorized by contract or statute.” Given the fact that the LPCF is created and is operated within the guidelines of the Medical Malpractice Act and that the statutory scheme makes no provision for attorney’s fees, we conclude that the LPCF is not responsible for the attorney’s fees awarded pursuant to the Nursing Home Residents’ Bill of Rights. Again, the judgment is amended below to reflect this determination.

Survival Action Damages — Virile Shares

Next, the LPCF and Bayou Chateau point out that the plaintiffs are only four of Ms. Guilbeau’s five children. The LPCF and Bayou Chateau contend that the trial court’s $100,000.00 award for survival action damages did not account for the remaining child’s virile share and that the four plaintiffs were not entitled to recover the remaining child’s share. They assert that the survival action damages should be reduced by one-fifth.

With regard to a survival action, La.Civ. Code art. 2315.1 provides, in part, that:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Article 1788 instructs that “[w]hen one obligor owes just one performance intended for the common benefit of different obligees, neither of whom is entitled to the whole performance, the obligation is joint for the obligees.” Further, in the event a joint obligation is divisible, “each joint obli-gor is bound to perform, and each joint obligee is entitled to receive, only his portion.” La.Civ.Code art. 1789. See also Gibbs v. Magnolia Living Center, Inc., 38,184, p. 6 (La.App. 2 Cir. 4/7/04), 870 So.2d 1111, 1115, writ denied, 04-1148 (La.7/2/04), 877 So.2d 146 (wherein the second circuit observed that a tortfeasor’s obligation to pay for the damages experienced by the victim prior to his or her death represents a single performance owed to all “survival beneficiaries and is therefore a joint obligation for the obli-gees. Any judgment for the payment of money damages is a divisible obligation. La. C.C. art. 1815”).

The record does not indicate that the trial court failed to take into consideration that only four of Ms. Guilbeau’s five children brought suit. Rather, the trial court was aware that Ms. Guilbeau had five children as each of them testified. Furthermore, in reasons for ruling, the trial court observed that “Plaintiffs, four of the children of Murdis Guilbeau, have instituted this action seeking general damages as survivors of Murdis Guilbeau for her pain and suffering from the time of injury until her death.... ” Neither does the quantum awarded in this regard necessarily signal that the trial court included the nonparticipating child’s virile share in the award. In short, the record fails to establish that the trial court erred in fashioning its award for the survival action.

Survival Action — Quantum

The LPCF and Bayou Chateau question the quantum of the general damages awarded for the survival action. Both reference the trial court’s consideration of Thibodeaux v. Stonebridge, LLC, 03-1256 (La.App. 5 Cir. 4/27/04), 873 So.2d 755, a case they assert involved more grievous injuries than those suffered by Ms. Guil-beau. They point out that Ms. Guilbeau was eighty-five years of age at the time of the fall in question, that she was suffering from Alzheimer’s and dementia at that time, and that the duration of her injury was only two months rather than the two years of recovery involved in Thibodeaux.

I^The trial court’s reasons for ruling reveal its consideration of Thibodeaux, as well as the following factual determinations which are relevant to our review:

As a result of [Ms. Guilbeau’s] fall she sustained a fractured clavicle and a fracture to her left pelvic inferior pubic ra-mus. The testimony is undisputed that these injuries caused severe and continuous pain to Ms. Guilbeau. This was confirmed not only through the testimony of her children, but also through a review of the medical records where it is continuously noted that she is in pain and discomfort.
Further, Dr. E.J. Kalifey testified that, considering the age of Ms. Guil-beau and the type of injury, that she would not have healed by the time of her death. Dr. Kalifey testified that this type of injury is painful for months, speaking of both fractures. This continuous pain is also reflected in the need for Ms. Guilbeau to be referred to a hospital on November 16, 2002 for pelvic pain. Dr. Kalifey confirmed that any movement would be painful to an individual of Ms. Guilbeau’s age and with those type [of] injuries.
Additionally, this Court does find that the evidence proves, more probable than not, that the injuries sustained by Ms. Guilbeau did have a serious, immediate and lasting effect upon her. Ms. Guil-beau was definitely a different person after the accident. This was confirmed through the uncontradicted testimony of her children who related that her mobility, ability to eat, ability to speak and understand, and all other facets of her life diminished immediately after the accident. Further, the photographs introduced into evidence clearly reflect a different individual from the June 8, 2002 photographs introduced into evidence, which photographs were taken a couple of days after the injury. Ms. Guilbeau aged tremendously after the accident. After the accident she could not use her wheelchair and was therefore immobile. The pelvic pain required bed rest. She would moan constantly.
Considering the testimony of all witnesses, expert and non-expert, as to the continued state of pain in which Ms. Guilbeau was in once she began to receive treatment, it makes one shudder to consider what type of pain she was actually in for the first two days, wherein no treatment was provided.
Therefore, and without question, Ms. Guilbeau sustained a very serious fracture to the clavicle and left pelvic inferi- or pubic ramus, which produced constant and severe pain for the two months from the time of injury to the time of her death. As her survivors, her children are entitled to recover for this extreme pain and suffering, and for this survival action the Court awards the sum of $100,000.00[.]

112In reviewing an award of general damages, we are mindful of the supreme court’s instruction that:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Only upon a finding of an abuse of discretion is reference to previous awards appropriate and then only for determination of the highest/lowest awards that were within the trial court’s discretion. Cone v. Nat’l Emergency Serv., Inc., 99-0934 (La.10/29/99), 747 So.2d 1085.

Although the trial court utilized a previous award in shaping the general damages, our review does not require such a consideration as the evidence reveals no abuse of discretion in the $100,000.00 award. Certainly Ms. Guil-beau suffered from poor health prior to her fall. However, Ms. Guilbeau’s fall resulted in two fractures which required hospitalization, an increase in medical supervision and attention, and the need for pain medication. Furthermore, the testimony supported a determination that Ms. Guilbeau’s mobility was significantly decreased, that she was more dependant on her caretakers, and that her ability to communicate was diminished. Her condition was such that physical therapy, occupational therapy, and speech therapy were attempted. The plaintiffs testified as to their perception of Ms. Guilbeau’s pain level and the fact that therapy was problematic due to her pain level. The trial court was also aware of the plaintiffs’ assertion that Ms. Guilbeau’s mental capacity was diminished after the accident.

11sGiven the above evidence, we find no abuse of discretion in the trial court’s award of $100,000.00 in general damages for the survival action. This assignment lacks merit.

Loss of Chance of Survival and Acceleration of Death

Noting difficulty in the plaintiffs’ wrongful death claim, the trial court awarded $50,000.00 for what it termed causation of a “more rapid demise.” The judgment styles the award as one for “loss of chance of survival and acceleration of death.” The LPCF and Bayou Chateau question the award, arguing that the plaintiffs failed to produce evidence linking Ms. Guilbeau’s injuries and her subsequent death.

With regard to this award, the trial court explained:

The issue of the wrongful death claim is somewhat more difficult to determine. This is due to the fact that there is no medical evidence to indicate that the injuries sustained in the subject accident caused the death of Ms. Guilbeau. In fact, plaintiffs admit that the injuries did not cause her death. Plaintiffs [sic] claim that the injuries caused her Al-zheimers and Dementia to progress more rapidly and therefore caused an earlier death than should have occurred.
Dr. Kalifey testified that the injury did not speed up the Dementia. However, we must recall that Dr. Kalifey did not examine Ms. Guilbeau. Dr. Dial also did not confirm that the injuries caused a more rapid deterioration of Ms. Guilbeau’s condition. However, Dr. Dial did not see Ms. Guilbeau prior to the accident, only seeing her approximately three to four weeks after the accident.
Louisiana Law requires that a party asserting a claim proves same by a preponderance of the evidence — that meaning, proving their claim to be more probable than not. In the case at bar the records introduced into evidence clearly show a notation in the Bayou Chateau records on September 26, 2002 that the condition of Ms. Guilbeau was deteriorating rapidly. This was also confirmed by testimony of her children as to her condition prior to the fall. After the fall, however, this deterioration, more probable than not, did accelerate. Although her death was not caused by the injuries, the evidence does prove more probable than not that the injuries caused her physical condition to be so painful that it diminished her appetite, diminished her mobility, diminished her communication, and as a result necessarily caused a more rapid demise. This Court does not find that Bayou Chateau wrongfully caused the death of Ms. Guilbeau. However, this Court does find that the negligence of the employees of Bayou Chateau did cause |-,¿injury to Ms. Guilbeau and that these injuries caused a more rapid demise, and damages in the amount of $50,000.00 are awarded accordingly.

With regard to the necessity of the plaintiff proving causation when alleging loss of chance of survival, the Louisiana Supreme Court has instructed, that:

We have previously explained that to establish causation in a situation where the patient dies, the plaintiff need only prove that the defendant’s malpractice resulted in the patient’s loss of a chance of survival, and that the plaintiff need not shoulder the “unreasonable burden” of proving that the patient would have survived if properly treated. We have also consistently held that causation is a factual finding which should not be reversed on appeal absent manifest error.

Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1278 (La.1991) (citations omitted). Here, the record reveals manifest error in the trial court’s determination that the evidence established loss of chance of survival.

As addressed above, the record supports the finding that the fall caused serious injury to Ms. Guilbeau and that her condition deteriorated as a result. These factors were appropriately considered in the general damages award. However, the record lacks evidence of the second component necessary for this award, i.e., that the injury caused or accelerated her death or that the injury resulted in a loss of chance of survival. At most, the record reveals the plaintiffs’ testimony regarding the deterioration of their mother’s condition after her fall. Again, this was considered in the general damages award.

In contrast to the finding as to causation, Dr. Daniel Dial, Ms. Guilbeau’s physician at the time she resided at the Baton Rouge Health Care Center, explained that he felt that the primary cause of death was “Alzheimer’s dementia[,]” and that any secondary cause was “[d]ysphasia secondary to all Alzheimer’s dementia.” He further testified as to his uncertainty as to whether the fractures contributed to Ms. 11sGuilbeau’s demise, given the underlying Alzheimer’s and the progression associated with that disease.

The record also contains the Medical Review Panel’s findings, which include its determination that: “The panel is further of the opinion that the breach in the standard of care was a factor in the resulting fracture of her left clavicle and the fracture of the pelvic inferior pubic rumes, but was not a factor in her subsequent death.” Dr. Edmund Kalifey, a member of the Medical Review Panel, testified as to the panel’s findings. After referencing Ms. Guilbeau’s condition prior to the fall, he stated that “it was felt that her injuries weren’t life threatening and with her, from what we gathered, her downhill course or deterioration we felt that most likely that this would have — you know, she would have died regardless of her injuries in this type of fashion.”

In short, the record lacks evidence to support the trial court’s determination as to causation and the resulting award for loss of chance of survival. Accordingly, the $50,000.00 award for “loss of chance of survival and acceleration of death” is reversed.

Medical Expenses

The trial court awarded $41,612.62 in medical special damages. This figure includes costs associated with Ms. Guilbeau’s stay at the Baton Rouge Health Care Center after her fall. Bayou Chateau questions the award, asserting that the figure does not reflect “the amount that was actually paid by Medicare.” They argue that, the supreme court’s decision in Bozeman v. State, 03-1016 (La.7/2/04), 879 So.2d 692, a case involving recovery for payments made by Medicaid, should be made applicable to the present matter. It contends that, otherwise, the award “results in a windfall to the plaintiffs, who are the heirs of the original plaintiff, and whose 11fipatrimony was not diminished.” Furthermore, Bayou Chateau questions the award of the full costs incurred in Ms. Guilbeau’s nursing home stay as necessitated by the accident when, as a longstanding nursing home resident, she would have incurred these costs regardless of the fall.

The trial court briefly addressed the medical expenses in its reasons for ruling, explaining:

Plaintiffs also allege that they are entitled to medical specials totalf ]ing $41,612.62. Of this amount, approximately $32,000.00 consists of charges incurred at Baton Rouge Health Center, a nursing facility with specialized care. A review of the medical records at this facility reflects that all of the treatment and/or attempted treatment provided to Ms. Guilbeau was medically necessary as a result of the injuries sustained in her fall and/or a result of the more rapid deterioration of her Alzheimers and Dementia. As a result Bayou Chateau is responsible for complete reimbursement of this amount.

Insofar as Bayou Chateau contends that Ms. Guilbeau’s medical expenses were paid by Medicare, we note that this case is not one controlled by Bozeman, 879 So.2d at 705-06, a case in which the supreme court explained that: “Medicaid recipients are unable to collect the Medicaid “write-off’ amounts as damages because no consideration is provided for the benefit. Thus, plaintiffs recovery is limited to what was paid by Medicaid.” The supreme court further remarked that: “However, in those instances, where plaintiffs patrimony has been diminished in some way in order to obtain the collateral source benefits, then plaintiff is entitled to the benefit of the bargain, and may recover the full value of his medical services, including the ‘write-off amount.” Id. at 706. In reaching its decision in Bozeman, the supreme court specifically noted the difference in Medicaid payments, and those from Medicare and private insurance. The latter payment methods require contribution from the recipient. Extension of the policy determination contained within Boze-man | 17as urged by Bayou Chateau, is not a question properly reconsidered by this court. This argument lacks merit.

Neither do we find that the trial court’s award for medical expenses requires amendment for nursing home expenses that Ms. Guilbeau would have incurred but for the accident. While such a consideration could have been appropriate, the evidence is lacking as to the costs associated with residence at Bayou Chateau. Instead, the record supports the trial court’s determination that, after the fall, Ms. Guilbeau required a higher level of care and that the injuries necessitated therapy, a cost included within the award. This argument lacks merit.

Attorney’s Fees — Quantum

Finally, Bayou Chateau contests the trial court’s award of attorney’s fees to the plaintiffs in the amount of their one-third contingency fee. It contends that, pursuant to La.R.S. 40:2010.9, the plaintiffs are only entitled to recover “reasonable attorneys fees” for violation of the Nursing Home Residents’ Bill of Rights and that one-third of the total award is not reasonable in this case as liability was established. Bayou Chateau also argues that the one-third recovery relates to the full case, including the malpractice claim, and is not limited to the bill of rights’ claim. Bayou Chateau urges this court to consider the factors set forth by the supreme court in City of Baton Rouge v. Stauffer Chemical Co., 500 So.2d 397 (La.1987) in considering the reasonableness of the award.

Having reviewed this matter, we find no abuse of discretion in the trial court’s determination that the one-third contingency fee arrangement entered into by the plaintiffs and their counsel is instructive of a reasonable attorney’s fee in this case. We reach this conclusion after consideration of the factors set forth in Smith, 899 So.2d 516, wherein the supreme court reiterated considerations to be entertained by the court in determining the reasonableness of a fee, even those authorized by statute. In this ease, the plaintiffs’ counsel assumed financial responsibility of the matter, filed suit, gathered relevant medical evidence, skillfully presented his arguments to the court, and successfully obtained recovery under the Nursing Home Residents’ Bill of Rights. The fact that much of this same evidence was used for the plaintiffs’ malpractice claim is of no moment as the intertwined nature of the claims required much of the same evidence, research, and argument. Furthermore, recovery based on a contingency contract in a Nursing Home Residents’ Bill of Rights case was specifically approved in Thibodeaux, 873 So.2d 755. See also Short v. Plantation Mgmt. Corp., 99-899 (La.App. 1 Cir. 12/27/00), 781 So.2d 46.

This assignment lacks merit.

_Jj^DECREE

For the foregoing reasons, the amended judgment of June 13, 2005 is vacated as an absolute nullity. The original judgment of May 31, 2005 is reinstated and, consistent with the above reasons, is amended to include the following language:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as a
Qualified Health Care Provider, Bayou Chateau Nursing Center, Inc. is not liable for an amount in excess of one hundred thousand dollars plus interest for damages arising from the malpractice claim.

That portion of the original judgment awarding attorney’s fees is amended to include the following sentence: “The Louisiana Patient’s Compensation Fund is not liable for the attorney’s fees award as it is made pursuant to the Nursing Home Residents’ Bill of Rights.” The trial court’s $50,000.00 award for “loss of chance of survival and acceleration of death damages” is reversed, and the judgment is amended to reflect the deletion of that award. In all other respects, the judgment is affirmed as amended. Costs of this proceeding are assessed equally to the plaintiffs, Bayou Chateau Nursing Center, Inc., and the Louisiana Patient’s Compensation Fund.

AMENDED JUDGMENT VACATED. ORIGINAL JUDGMENT REVERSED IN PART AND AFFIRMED IN PART AS AMENDED.

THIBODEAUX, Chief Judge, dissents for the reasons expressed by Judge PAINTER.

PAINTER, J., dissents and assigns reasons.

PAINTER, J.,

dissenting in part.

|,While I agree with much of the majority’s opinion herein, I would affirm the trial court’s award for lost chance of survival.

The record on appeal shows a more rapid deterioration of Mrs. Guilbeau’s condition after the injury than before. While Mrs. Guilbeau was elderly and suffering from Alzheimer’s disease, the record shows that she was able to enjoy many of the normal functions of life, and nothing of record suggests that she was near death prior to her injury. After the injury, her condition declined dramatically, and within three months after the injury she was dead. After hearing the evidence, the trial court stated in reasons for judgment: Although her death was not caused by the injuries, the evidence does prove more probable than not that the injuries caused her physical condition to be so painful that it diminished her appetite, diminished her mobility, diminished her communication, and as a result necessarily caused a more rapid demise.” The trial court’s determination that Ms. Guilbeau lost a chance of survival is supported by a reading of the record as a whole, and I would affirm that determination, finding no manifest error. Accordingly, I respectfully dissent from the majority’s decision to reverse the judgment of the trial court awarding damages for lost chance of survival.

      . The petition lists Robert Neil Guilbeau, Bernice Guilbeau Kimball, Charlene Guilbeau Wilkinson, and Earl James Guilbeau as the plaintiffs.

      . Although Bayou Chateau’s brief to this court references the parties' agreement to the amendment, the record contains no such evidence.

      . "Malpractice” is defined within the Act as:
      [A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.
      La.R.S. 40:1299.41(A)(8).

      . In Sewell, 600 So.2d at 578 (emphasis added) (footnote omitted), the supreme court remarked that:
      The principal purpose of the Medical Malpractice Act is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patients Compensation Fund. As long as a health care provider remains qualified under the Act, the health care provider and his insurer are liable for malpractice only to the extent provided in the Act. La.Rev.Stat. 40:1299.45 A.
      The Medical Malpractice Act's limitations on the liability of a health care provider are special legislation in derogation of the rights of tort victims. As such, the coverage of the Act should be strictly construed. These limitations apply only in cases of liability for malpractice as defined in the Act. Any other liability of the health care provider to the patient is not subject to these limitations.

      . At the time of the events at issue, La.R.S. 40:2010.9 provided:
      A. Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action shall he entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of a justiciable issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees.
      B. The remedies provided in this action are in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies.
      (Emphasis added.)

      . The supreme court explained:
      It is well settled that courts may inquire into the reasonableness of attorney fees as part of their inherent authority to regulate the practice of law, "[r]egardless of the language of the statutory authorization for an award of attorney fees or the method employed by the trial court in making an award of attorney fees." Rivet v. State, Dept. of Transp. and Dev., 96-0145, p. 11 (La.9/5/96), 680 So.2d 1154, 1161. In State, Department of Transportation and Development v. Williamson, 597 So.2d 439, 442 (La.1992), this court set forth those factors to be taken into consideration in determining the reasonableness of attorney fees as follows: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. These factors are derived from Rule 1.5(a) of the Rules of Professional Conduct, which guide the legal profession in setting reasonable attorney fees based on skill, prevailing charges, time involved, relationship, and others. Rivet at p. 12, 680 So.2d at 1161-62.

        Smith, 899 So.2d at 527-28.