author: BROWN, C.J.

text:
    Jerry GARNER, Plaintiff-Appellee, v. Kenneth Allen HOLLEY and Kristi Teer Holley, Defendants-Appellants.
    No. 42,477-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 3, 2007.
    Rehearing Denied Nov. 29, 2007.

      Stewart & Stewart by Jonathan M. Stewart, for Appellants.
    John C. Campbell, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, C.J.

L Kenneth and Kristi Holley have appealed from that portion of the trial court’s judgment fixing the boundary between their tract of land and that of the plaintiff, Jerry Garner. For the following reasons we affirm.

Facts and Procedural Background

The Holleys and Garner own adjacent tracts of land in Sibley, Louisiana. Garner’s property, which lies to the north of the Holleys’, is described as follows:

Beginning 140 yards north of the V.S. & P. Railway overhead bridge, as same is presently located in Sibley, Louisiana, on west side of Minden-Ringgold Public Road, about 6 yards South of Section line 16; run 190 feet West, and intersecting Section line 16, continue West 210 feet; thence run North 82½ feet to the point of beginning; from this point run North 82½ feet; thence East 400 feet; thence South along west side of Minden-Ringgold Public Road 90 feet; thence West 400 feet to the point of beginning....

The Holleys’ property is described as follows:

Beginning 140 yards north of the VS & P Railroad overhead bridge on the West side of the Minden-Ringgold Highway about six yard South of the South line of Section 16. From this point of beginning run West almost 190 feet to intersect the South line of Section 16; thence West 210 feet to the Southwest corner of this lot; thence North 82.5 feet; thence East 400 feet to the Minden-Ringgold Road; thence South 90 feet to the point of beginning....

Garner’s ancestors-in-title, the Garner family, and the Holleys’ ancestors-in-title, the Cooke family, acquired their tracts of land from a common owner sometime during the late 1920s. They shared a single driveway until 1968, at which time Garner’s ancestors-in-title built a new house with a separate driveway. The shared driveway area comprises most of the disputed area at issue on appeal. The Hol-leys and/or their ancestors-in-title almost exclusively used the shared driveway from 1968 until the present action was brought.

| gGarner’s ancestors-in-title were his grandparents and his parents. Garner first lived on the property as a kid in 1949 and then again when he acquired it from his mother and siblings in 2002. The Holleys’ ancestors-in-title were the Cookes. The Cooke family acquired their tract in the late 1920s.

The Holleys acquired their tract of land in 2004 and decided to use it for commercial purposes. The property had been uninhabited for seven years before the purchase. As a result of the property being used for commercial purposes, there was a significant increase in the number of vehicles using and parking on the driveway. To help accommodate the additional traffic, the Holleys spread paving material along the driveway. Garner complained that the paving material had been spread on his property and that he was worried that someone would back into his air conditioning unit. It was at this point that Garner and the Holleys decided to have their properties surveyed by Paul Culpep-per.

While conducting his survey, Culpepper found that the deed descriptions to the properties were not sufficient to accurately determine boundary locations, so he decided to use past surveys of neighboring properties to assist him. Upon completion, Culpepper determined that the driveway fell within Garner’s tract of land.

On May 13, 2005, Garner filed a petition to establish the boundary. The Holleys answered the petition and admitted that the parties were the record owners of the property described in their deeds, but they pled that they and their ancestors-in-title had exercised open, notorious, and adverse [¿possession, within visible bounds, of the disputed property for more than thirty years and that the boundary should be fixed in accordance with this possession. Furthermore, the Holleys asserted that, in the alternative, they and their ancestors-in-title had acquired a servitude of passage across the disputed area.

After a three-day trial, the trial court established a boundary line in the front portion of the two tracts along a line midway between the two existing houses. This boundary line fixed the disputed driveway within Garner’s property. Furthermore, the trial court found that the Holleys and their ancestors-in-title had acquired a servitude of passage that would allow them to continue to use the shared driveway to access their property. This servitude of passage, however, did not grant the Holleys the right to park cars on the area of the driveway falling within Garner’s boundary. From these adverse rulings the Holleys have appealed.

Applicable Law

After considering the evidence, including the testimony of a surveyor appointed by a party, the court shall render judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. La. C.C.P. art. 3693. When one party relies on title and the other party on acquisitive prescription, the party relying on title will prevail unless the adversary can establish his ownership by acquisitive prescription. |4 Bowman v. Blankenship, 34,558 (La.App.2d Cir.04/04/01), 785 So.2d 134, writ denied, 01-1354 (La.06/22/01), 794 So.2d 794; Pace v. Towns, 33,071 (La.App.2d Cir.04/05/00), 756 So.2d 680. The party seeking title to a tract of land through acquisitive prescription bears the burden of proof. Fallin v. Pesnell, 27,814 (La.App.2d Cir.01/24/96), 667 So.2d 581.

If a party and his ancestors-in-title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794. Furthermore, the party alleging acquisitive prescription must establish that their possession has been continuous, uninterrupted, peaceable, public, and unequivocal. La. C.C. art. 3476. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424.

Whether or not disputed property has been possessed for 30 years without interruption is a factual issue and will not be disturbed on appeal unless there is a showing of abuse of discretion, or manifest error. Bowman, supra; Pace, supra. Furthermore, as boundary location is a question of fact, the determination of its location by the trial court should not be reversed absent manifest error. Bowman, supra; Fallin, supra.

Discussion

In their first two assignments of error, the Holleys’ primary contention is that the trial court erred in finding that Garner had acquired ownership of the disputed area through acquisitive prescription and that they had not. While we agree in part with the Holleys’ assertion, we find |sthat the trial court did not err in finding that Garner was the owner of the disputed area.

In its written opinion, the trial court found that due to flaws in the parties’ record titles, as per the testimony of Cul-pepper, it was unable to fix the boundary according to the ownership of the parties. Thus, the trial court fixed the boundary based on the testimony of Garner that an old garage had existed and had been used by his ancestors-in-title for over forty years, and that the garage was located within the disputed driveway. While we find that the trial court did not err in finding that Garner owned the disputed area, we disagree with its finding that the boundary location of the disputed area could not be fixed in accordance with the parties’ deeds.

In reviewing the Holleys’ deed description, it is clearly evident that the Holleys are the record owners of 90 feet along the Minden-Ringgold Highway. This 90 feet starts at the point of beginning and goes north. Thus, at that point, 90 feet north of the point of beginning, Garner’s property begins. Therefore, we need to determine how many feet north of the point of beginning the driveway begins.

Based, upon the plats of survey introduced into evidence, the disputed driveway begins approximately 108 feet north of the Holleys’ point of beginning. Clearly this falls within the area described in Garner’s deed of acquisition, and, as such, Garner’s ownership of the disputed area is based upon record title. Therefore, for the Hol-leys to prove ownership superior to Garner’s, they were required to establish their ownership by acquisitive prescription. See Pace, supra.

| (-¡The Holleys demonstrated that they and their ancestors-in-title, the Cooke family, used the shared driveway almost exclusively since 1968. Use, however, does not in and of itself amount to possession. Acquiring possession requires an intent to possess as owner and then the exercise of corporeal possession. See La. C.C. art. 3424. The Holleys failed to prove that their ancestors-in-title intended to possess the disputed area as owners.

A review of the record shows that prior to 1968 the Cooke family and the Garner family shared the driveway, each using it to access their ' respective properties. Then in 1968 the Garner family built a new house with a driveway off of Columbus Street. After the Garner family built their new home, the Cooke family continued to use the shared driveway in almost the same manner as they had prior to 1968.

Based on the aforementioned, and without any additional evidence, we find that the Holleys failed to prove that the Cooke family’s continued use of the shared driveway to access their property was a manifestation of intent to possess the disputed area as owners. While it is generally true that intent to possess as owner is presumed, we find that such is not the case here. See La. C.C. art. 3427. The Cooke family initially used the disputed area jointly with the Garner family, without intending to possess the whole disputed area as sole owners. Without anything more, we cannot find that the Cooke family’s continued use and the Garner family’s discontinued use alters the parties’ initial intent. Therefore, the trial court did not err in finding that the Holleys did not establish a prescriptive title to the disputed |7area and, thus, it did not commit manifest error in making its determination of boundary location.

In their third assignment of error, the Holleys contend that since the trial court was unable to establish a boundary based upon title, acquisitive prescription or possession, it erred in not applying the law of possessory actions. Based on our previous finding, that a boundary could be established based upon title, we find that this assignment of error is without merit.

In their last assignment of error, the Holleys posit that in the event the trial court correctly fixed the boundary, it erred in granting a servitude of passage that excludes the right to park on the shared driveway. The Holleys contend that since their property is used for commercial purposes, being able to access the property and conveniently park are reasonable uses by the dominant estate.

Garner, however, argues that to allow the Holleys’ customers to park alongside his home would expand the servitude of passage into a “servitude of parking.” To support his contention, Garner cites Irland, v. Barron, 230 So.2d 880 (La.App. 2d Cir. 1970), in which this court found that a right of passage did not grant the greater right of parking. We agree with Garner’s position.

A servitude of passage is for the benefit of a dominant estate whereby persons or vehicles are permitted to pass through a servient estate. La. C.C. art 705. (Emphasis added). This statute is unambiguous and we find 18no reason to expand it to allow vehicles to park on, and not just pass through, a servient estate.

Thus, we find that the Holleys’ fourth assignment of error is also without merit.

Conclusion

For the reasons expressed herein, the judgment of the trial court is affirmed.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . At the trial court level, the boundary location between the back yards was also in dispute. The Holleys were found to have gained ownership of this disputed area through acquisitive prescription. Neither the Holleys nor Garner raised any issues on appeal with regards to the trial court’s ruling on the back yard boundary location. Thus, we need not address this portion of the trial court’s judgment.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Barbara HYPOLITE v. COLUMBIA DAUTERIVE HOSPITAL, et al.
    No. 07-357.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      • Kenneth Michael Henke, Special Assistant Attorney General, Lafayette, LA, for Defendants/Appellees, Louisiana Patients’ Compensation Fund, Dr. Donald R. Blue, and Columbia Dauterive Hospital.
    George Allen Walsh, Baton Rouge, LA, Lucretia Pecantte-Burton, New Iberia, LA, for Plaintiff/Appellant, Barbara Hy-polite.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

hThe plaintiff-appellant, Barbara Hypol-ite George (Ms. Hypolite) , filed a medical malpractice action against the Louisiana Patients’ Compensation Fund (PCF), Dau-terive Hospital Corporation, Inc., and an obstetrician, Dr. Donald Blue. Ms. Hypol-ite sought damages arising out of alleged negligent care received during her labor-inducement and subsequent period of labor, which she claims led to a ruptured uterus and subsequent hysterectomy. The jury trial ended in a verdict in favor of the defendants and against Ms. Hypolite. Ms. Hypolite has appealed, claiming that the jury erred in finding that the defendants did not breach their respective standards of care. We affirm.

I.

ISSUE

We shall consider whether the plaintiff presented sufficient evidence at trial to establish that the defendants breached their applicable standards of care.

II.

FACTUAL BACKGROUND

On June 4, 1998, Ms. Hypolite began receiving prenatal care for a high-risk pregnancy at the Women and Children’s Clinic of Columbia Dauterive Hospital (Dauterive), located in New Iberia, Louisiana. At the time, she was approximately five months pregnant with her second child and was a month away from her thirty-sixth birthday. On her initial visit to Dau-terive her blood pressure was 128/60, and at a height of five feet, one inch, she weighed 213.5 pounds and was considered | aobese. She was diagnosed with immune thrombocytopenia, a condition signifying low blood platelet counts; platelets are essential for blood clotting.

Ms. Hypolite also exhibited a number of other factors signifying a possible high-risk pregnancy. They included: possible hypertension, a prior thirty-three week, pre-term delivery of a child weighing three pounds, nine ounces; a history of alcohol abuse, which also occurred during that pri- or pregnancy; a history of marijuana and crack cocaine use (her admitted last use of crack cocaine was ten months prior to her June 4th prenatal visit); and, the fact that she was a smoker.

The sequence of events giving rise to the complaints of negligent medical care began on Friday, September 25, 1998. Ms. Hy-polite was assessed by Allison Clark, a nurse midwife, during a scheduled prenatal appointment. The pregnancy had reached term, and an ultrasound showed that the baby was large, weighing possibly nine or ten pounds. Ms. Hypolite’s weight had increased to 237.5 pounds. She was assessed for pre-eclampsia and showed an elevated blood pressure of 142/85. It was determined that labor would be induced on Monday, September 28, 1998, due to the baby’s possible large size, her elevated blood pressure, and a moderately low blood platelet count.

Ms. Hypolite arrived alone on the morning of September 28, 1998, for the scheduled induction. At approximately 6:00 a.m., Rebecca Davis, another nurse midwife, explained to Ms. Hypolite the induction process and the options of undergoing a caesarean delivery or a trial of labor and a vaginal delivery. Ms. Hypolite opted for the inducement of labor and a natural, vaginal delivery. Ms. Davis explained that the induction would be instituted using an intravaginal insertion of the drug Cytotee, which would aid contractions and the ripening of the cervix. She also advised Ms. Hypolite about the risks of the use of Cytotee. One of the risks was a | spossibility that the uterus could react too strongly to the drug and that a risk of its use was also uterine rupture. Ms. Hypol-ite verbally consented to the use of the Cytotee for the induction. Eve Talley, a registered nurse who cared for Ms. Hypol-ite that day until her shift ended at 3:15 p.m., witnessed this exchange between Ms. Hypolite and Ms. Davis.

A pelvic examination was performed by Ms. Davis, revealing that Ms. Hypolite’s cervix was 50% effaced and was one centimeter dilated. Ms. Hypolite’s platelet count remained moderate. The first dosage of Cytotee was then administered by Ms. Davis at 7:03 a.m. Regular uterine contractions began. Ms. Hypolite received a second dosage of Cytotee five hours and forty-five minutes later, at 12:45 p.m. Her labor continued through the afternoon. Ms. Hypolite complained of severe pain and distress throughout her trial of natural labor that day.

That afternoon, Ms. Hypolite began showing increased blood pressure. At approximately 4:45 p.m., her blood pressure was 155/80. At 4:50 p.m., Ms. Hypolite’s blood pressure was 179/103. Dr. Blue was notified of the elevated pressure, and at 5:00 p.m., he examined Ms. Hypolite. Her blood pressure was 160/120, and fetal bra-dychardia, which is a slowed heart rate and an indicator of fetal distress, was noted. The baby’s baseline heart rate was 70-90 beats per minute, which was below the normal heart rate range. Ms. Hypol-ite was unsuccessfully repositioned several times to attempt to increase the baby’s heart rate. Dr. Blue consequently ordered an emergency cesarean delivery. Ms. Hy-polite signed consent forms prior to undergoing the procedure.

Dr. Blue successfully delivered a ten pound baby boy via.cesarean section. After the removal of the placenta and membranes, Dr. Blue discovered a tear in the left side of Ms. Hypolite’s uterus and a broad ligament hematoma, which |4dissected into the upper part of the uterus and the lateral wall. Ms. Hypolite was bleeding heavily, and it was determined that her uterus was only connected to the cervix by three to four centimeters, poste-riorly. Dr. Blue determined that the damage was too severe and that a total abdominal hysterectomy would be necessary. He proceeded to perform the procedure. Ms. Hypolite lost an estimated 1,000 cubic centimeters of blood and was transfused with two units of packed cells. She was transferred to the intensive care unit where she recovered well.

Ms. Hypolite subsequently filed a complaint of medical malpractice with the State of Louisiana for substandard care she claims to have received from the nursing staff and Dr. Blue. All medical records were submitted for review to a medical review panel consisting of three physicians with specialties in Obstetrics and Gynecology. The panel found that there was no breach of the applicable standards of care by either Dr. Blue or the nurses at Dau-terive.

Ms. Hypolite proceeded to file a suit for damages in state court. That suit alleged that the Dauterive nurses breached the standard of care required under the circumstances because they: (1) failed to properly monitor and timely respond to her distress following insertion of the Cy-totec pills; (2) failed to obtain her informed consent for the use of Cytotee to induce labor; (3) failed to timely summon a doctor when expert medical attention was needed; and (4) acted unreasonably by administering Cytotee to her without a specific physician’s order directing its use. Ms. Hypolite claimed that Dr. Blue also breached the standard of care required under the circumstances by: (1) failing to timely examine and monitor her condition; (2) failing to properly instruct the nurse midwives regarding the signs of distress | ¿associated with the use of Cytotee; and (3) failing to obtain her informed consent to the use of Cytotee. Ms. Hypolite sought compensation for a non-exclusive list of damages, including the loss of her ability to bear children, loss of a body organ, physical pain and suffering, mental anguish, a prolonged hospital stay, and medical expenses.

The jury found that neither Dr. Blue nor Dauterive, through its nursing staff, breached the applicable standards of care. It is from this judgment that Ms. Hypolite has appealed.

III.

LAW AND ANALYSIS

Establishing Liability

Louisiana Revised Statutes 9:2794(A) sets forth the plaintiffs burden of proof against a physician licensed by the State Board of Medical Examiners pursuant to La. R.S. 37:1261, et seq., in a medical malpractice action. The plaintiff must establish:

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

Id. In summary, “[t]he plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom.” Pfiffner v. Correa, 94-924, p. 7 (La.10/17/94), 643 So.2d 1228, 1233.

Nurses performing medical services are subject to the same standards of care and liability as physicians. Pommier v. ABC Ins. Co., 97-1342 (La.App. 3 Cir. 7/15/98), 715 So.2d 1270, writs denied, 98-2455, 98-2456 (La.11/20/98), 729 So.2d 562. The hospital is responsible for the negligence of its employees, including nurses, under the doctrine of respondeat superior. Id. Consequently, in a medical malpractice action such as this one against a hospital, this plaintiff must prove that the hospital, acting through its nurses, owed this plaintiff a duty to protect against the risks involved, that it breached that duty, that the plaintiff suffered injury, and that the purported negligent action was a substantial cause in fact of injury. Id. (citing Farmer v. Reyes, 95-0734, 95-0735 (La.App. 4 Cir. 11/16/95), 665 So.2d 129; Seal v. Bogalusa Cmty. Med. Ctr., 94-1363 (La.App. 1 Cir. 11/9/95), 665 So.2d 52).

The question of whether conduct fell below the applicable standard of care is a factual determination subject to the manifest error standard of review. Curtis v. Columbia Doctors’ Hosp. of Opelousas, 03-916 (La.App. 3 Cir. 12/17/03), 862 So.2d 1125. In order to determine whether a standard of care was breached, opinions of medical experts are usually necessary to determine the applicable standard of care under the circumstances and- whether there has, in fact, been a breach. Pfiffner, 643 So.2d 1228; see also, Herpin v. Witherspoon, 95-370 (La.App. 3 Cir. 11/2/95), 664 So.2d 515. In this case, the jury was presented with conflicting opinions from multiple medical experts. Based on the facts presented in the record, we find that the jury made reasonable credibility determinations and reasonably weighed the evidence presented. See Stobart v. State, through the Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). Consequently, we cannot say that the jury’s verdict is manifestly erroneous or clearly wrong.

Induction Using Cytotec and Care During Labor

Ms. Davis, who was qualified as an expert in nursing, testified specifically regarding Ms. Hypolite’s September 25, 1998, appointment that resulted in the decision to induce Ms. Hypolite. She also testified about the events of Ms. Hypolite’s induction on the morning of September 28, 1998. As a part of Ms. Hypolite’s malpractice claim, Ms. Hypolite contends that a decision was made to induce her for a vaginal delivery on the morning of September 28, 1998, using the drug Cytotec, although a necessary cervical examination of her was not conducted first to determine her suitability for inducement using this drug. She contends that this was a breach of the standard of care that she should have received from the treating nurses and Dr. Blue, who consulted on her case.

She offered the testimony of Melinda Carmouche, R.N., who was qualified as an expert in nursing, which stated that the failure to perform this exam constitutes a breach of the nurses’ standard of care for this patient. This contention, however, was wholly disproved at trial by Ms. Davis, the nurse midwife, who established through Ms. Hypolite’s medical records, specifically the Prenatal Flow Sheet maintained by the Women & Children’s Clinic of Dauterive, that Ms. Allison Clark, another nurse midwife, did conduct a cervical examination on September 25th, prior to the decision to induce. In addition, Dr. Blue testified that he was consulted |sby the Nurse Midwife regarding the recommendation to induce, and was presented with the necessary information to assess Ms. Hypolite’s suitability and progression towards delivery. He agreed with the recommendation of the Nurse Midwife to induce on September 28, 1998, using the normal protocol for Cytotec.

Secondly, Nurses Talley and Davis testified in opposition to Ms. Hypolite’s contention that she was not informed of the risks and benefits of the use of Cytotec, that she did not give her informed consent to its use before her induction, that she was administered Cytotec by the nurses without an approved order to do so, that her second dose of Cytotec was administered too soon, and that she was given improper dosages of Cytotec. Specifically, Ms. Davis testified that she counseled Ms. Hy-polite on the risks and benefits of Cytotec on the morning of September 28, 1998, shortly after she was admitted for the induction. Nurse Eve Talley was present. According to the two nurses, Ms. Hypolite arrived at Dauterive at approximately 6:00 a.m. She was counseled by Ms. Davis regarding the Cytotec, as well as the pros and cons of labor versus cesarean delivery. Ms. Hypolite did not ask any questions and provided her verbal consent to the use of the Cytotec.

Additionally, the nurses both testified that Ms. Davis commenced the induction by inserting a fifty microgram dose of Cytotec intravaginally. Nurse Talley witnessed this. According to both nurses, the Cytotec was administered according to Dauterive’s standard protocol for its use at the time, which was twenty-five to fifty micrograms every four to six hours. Nurse Talley received the dose from the pharmacy, in the form of one-half of a 100-microgram pill and provided it to the midwife for insertion.

Regarding Ms. Hypolite’s claims of inadequate monitoring, Nurse Talley testified that her shift began at 6:00 a.m. that morning and, as a result, she was the | registered nurse responsible for Ms. Hy-polite’s monitoring during her course of labor for the majority of that day. She was required to report to the nurse midwife and the nurse midwife, in turn, would report to the consulting physician, as needed. Consequently, she provided further testimony refuting Ms. Hypolite’s sole testimony that the nursing staff failed to respond to her repeated and desperate calls of distress throughout the day in a timely fashion, which allegedly resulted in their failure to recognize the serious trouble she was in. Nurse Talley also responded to Ms. Hypolite’s contention that during her trial of labor, the nursing staff restrained her to the bed by her wrists and ankles. Nurse Talley testified that Ms. Hypolite was the only patient in labor on the floor that day. She further testified that her Nurse’s Notes and notations made on the fetal heart rate monitor strips generated during Ms. Hypolite’s labor confirmed that she was present in Ms. Hypolite’s room on an almost constant basis that day. She was present at 7:03 a.m., 7:15, 7:30, 7:40, 7:55, 8:00, 8:06, 8:30, 8:53, 9:00, 9:30, 10:00, 10:20, 10:53, 11:00, 11:10, 12:15 p.m., 12:30, 12:45, 2:00, 2:28, 2:50, 3:05, and 3:10. Her shift ended at 3:15 p.m. that day. She denied that restraints were used on Ms. Hypolite during her trial of labor. Ms. Hypolite’s contention that she was restrained was unconfirmed by any source.

Next, the jury was presented with conflicting physician opinions regarding whether the decision was reasonably made to use Cytotec to induce Ms. Hypolite’s labor, considering her pregnancy risk factors; whether Cytotec was administered without a proper order directing its dosage times and amounts; and, whether her informed consent was properly received pri- or to the use of the Cytotec drug. Ms. Hypolite’s expert obstetrician/gynecologist, Dr. James Wheeler, testified that although he believed Cytotec to be the most effective inducer of labor available in 1998, the Cytotec protocol should not have been ordered for Ms. Hypolite. He | inopined that her high-risk status and the subsequent progress of her pregnancy indicated that she was not a suitable candidate for labor induction and vaginal delivery. He also testified that neither her cervix nor the baby’s position was favorable for inducement of labor on the morning the induction commenced. Additionally, he opined that the second dose of Cytotec was given to Ms. Hypolite too soon — five hours and forty-five minutes after the first dose had been given — based on her considerable labor progression at the time. He opined that the cumulative effect of the two, fifty microgram doses she was given was hyper-stimulation, i.e., too many contractions over a short period of time. Since babies breathe in between contractions, he stated that the short length of time between contractions did not allow the baby to get enough oxygen. This, he opined, resulted in the fetal distress that led to the need for an emergency cesarean delivery. In his opinion, it appeared that Ms. Hypolite’s providers “were more interested in getting her done than caring for her safely” and that “they pushed her to an extraordinary degree.”

Dr. Blue, as well as the defendants’ physician-expert, Dr. Whitney Gonsoulin, an obstetrician who specializes in maternal fetal medicine (a/k/a a perinatologist), presented opposing views. Dr. Gonsoulin testified that he believed Ms. Hypolite was an “excellent” candidate for the induction of a vaginal delivery as opposed to a cesarean section. He attributed this to the fact that she had previously had a successful delivery, which indicated the high likelihood of her ability to deliver again. He stated that the premature nature-of that birth did not negatively affect this conclusion. Dr. Gonsoulin further opined that Ms. Hypol-ite’s obesity and high blood pressure history actually made her a better candidate for the induction of a vaginal delivery, rather than a cesarean section, due to the complications that could be It introduced by those factors during such an invasive surgery. He explained that because of Ms. Hypol-ite’s reported mild high blood pressure, a shorter induction, which was best achieved at the time by using Cytotee, as opposed to a prolonged spontaneous labor, was safer. The Cytotee, he stated, was given according to protocol in the amount of fifty micrograms, every 4-6 hours as needed.

Dr. Gonsoulin stated that the risk of uterine rupture in Ms. Hypolite is a universal risk for anyone delivering vaginally, regardless of high-risk status or whether the labor has been induced. He testified that although uterine rupture is rare, it is riot necessarily indicative of a breach of the standard of care, explaining that it has been known to occur in women who have abused cocaine and that it can even occur post-partum.

Dr. Stephen Schorr, also a perinatologist who served on the Medical Review Panel that reviewed Ms. Hypolite’s claims prior to the matter proceeding to trial, offered testimony as well. He stated that his review of the complete record of Ms. Hypol-ite’s care showed no breach of the standard of care of the nursing staff or Dr. Blue in the administering of Cytotee for the induction. He too testified that it was administered in the proper dosage amounts within the time guidelines provided by Dauterive’s protocol and that Ms. Hypolite was a suitable candidate for its use. He testified that Ms. Hypolite presented with complications which may have put her at risk during her pregnancy and delivery but opined that she was not a very high risk patient, considering the fact that her blood pressure and immune thrombocytopenia were mild cases. He also stated that she was handled safely and appropriately by the nurse midwives during labor and induction. In his opinion, the Cytotee was used properly as a first step measure to soften or ripen the cervix, which needed to happen |1?in this case based on the cervical examinations that were performed on Ms. Hypolite prior to induction.

This testimony and evidence support the jury’s verdict that Ms. Hypolite failed to carry the burden of proving a breach of the standard of care by either of the remaining defendants as to these issues.

Emergency Cesarean Delivery and Hysterectomy

As stated earlier, Dr. Blue was present almost immediately after being notified by the nurse midwife on duty of Ms. Hypol-ite’s increased blood pressure and the signs of fetal distress. Dr. Gonsoulin and Dr. Schorr both testified that Dr. Blue acted appropriately under the circumstances. The facts revealed that after attempting to reposition Ms. Hypolite to achieve a deceleration in her blood pressure and an increase in the baby’s heart rate, he made the immediate decision to deliver the baby via cesarean in order to save the baby’s life. He obtained Ms. Hypolite’s informed consent and delivered the baby successfully.

It was only after delivering the placenta and membranes that Dr. Blue was able to assess the condition of the uterus, which had suffered a severe uterine tear and had become almost wholly detached from the cervix. The extreme blood loss and condition of the uterus left him no option but to remove the uterus for the safety of Ms. Hypolite. None of the physicians testifying stated that the hysterectomy was improperly performed or was unnecessary. As testified to by Dr. Schorr, the uterus is a large muscle and muscles can tear when they contract, which was the unfortunate result in this case. All of the physicians agreed that a uterine tear was a possible complication that accompanies a course of labor and that the occurrence here did not absolutely signify a breach of the physician’s or nursing staffs standard of care.

| ^Considering these facts and opinions, we conclude that the judgment pursuant to the jury’s verdict, which found that Ms. Hypolite failed to establish breaches of the standards of care, as to these issues, is reasonably supported by the record as well.

IV.

CONCLUSION

The jury’s respective findings that the defendants, Columbia Dauterive Hospital and Dr. Donald Blue, did not breach their applicable standards of care, are not manifestly erroneous. Costs of this appeal are assessed against plaintiff-appellant, Barbara Hypolite George.

AFFIRMED.

      . The plaintiff instituted her action as Barbara Hypolite, but had divorced and remarried as of the time of trial and her subsequent appeal. For the sake of clarity, we will refer to the plaintiff as Barbara Hypolite.

      . Ms. Hypolite’s action in state court was originally filed’ against Dauterive Hospital Corporation, Inc., Dr. Donald R. Blue, LAM-MICO Insurance Company, and G.D. Searle & Co. LAMMICO and G.D. Searle & Co. were dismissed from the action prior to trial.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Craig L. BAILEY.
    No. KA 07-130.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      John Edward DiGiulio, De Giulio & Ber-tucci, Baton Rouge, LA, for Defendant/Appellant, Craig L. Bailey.
    James C. Downs, District Attorney, Ninth Judicial District Court, Thomas Rockwell Wilson, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjThe Rapides Parish Grand Jury indicted Defendant, Craig L. Bailey, along with Sherrod Wilson and Corday Taylor for first degree murder. Thereafter, the State gave notice of its intent to seek the death penalty. Subsequently, the prosecution amended the indictment to charge the Defendants with second degree murder. After jury selection began, Defendant severed his trial from his co-defendants and pled guilty to manslaughter, in violation of La.R.S. 14:31, without a sentencing recommendation.

On September 25, 2006, the trial court sentenced Defendant to forty years at hard labor. Defendant then filed a motion to reconsider sentence, which the trial court denied Defendant’s motion on October 27, 2006. Defendant now appeals and argues his sentence is constitutionally excessive. We affirm Defendant’s sentence finding that the district court did not abuse its discretion in imposing the maximum sentence for manslaughter in this case.

STATEMENT OF FACTS

Around 4:30 a.m. on December 15, 2001, Defendant and his Co-defendants went to Jimmy Ray Thomas’ house to pick up a shipment of marijuana from Texas. Defendant and Wilson were armed when they entered Mr. Thomas’ house where Mr. Thomas was asleep in bed. When they turned on the bedroom lights and yelled at Mr. Thomas, he pulled a pistol from under the sheets. Defendant, Wilson, and Mr. 1 ¡>Thomas left the house. Once outside, one of the Defendants chased Mr. Thomas and shot him two times. Mr. Thomas attempted to return home only to be ambushed and shot again. Mr. Thomas attempted to crawl away, but the Defendants shot him again seventeen times. The Victim was shot with three different weapons. The Defendants then fled the scene and gathered their clothes and weapons for disposal.

EXCESSIVE SENTENCE

Defendant complains that “Craig Bailey’s Sentence of Forty Years, the Maximum Allowed by Law for the Offense of Manslaughter, Amounts to Excessive Punishment in Violation of the Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution.” Defendant asserts that the trial judge’s finding of several aggravating factors, including Defendant being the ringleader, was based upon the incredible testimony of a Co-defendant. Defendant argues that the trial court’s sentencing decision was based upon a misapprehension of the relevant facts; therefore his sentence constitutes an abuse of discretion.

The supreme court has determined that the standard for reviewing excessive sentence claims is abuse of discretion:

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion.

State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17 (citations omitted).

Under the manslaughter statute, “[wjhoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” La.R.S. 14:31(B). Therefore, the sentencing court imposed the maximum penalty allowable for manslaughter.

|aA sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may, not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, unit denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

“Generally, maximum sentences are reserved for - those cases that involve the most serious violations of the offense charged and the worst type of offender.” State v. Jones, 05-735, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1116.

The sentencing court issued the following reasons for imposing the maximum possible sentence under the manslaughter statute:

All right. I have reviewed the Manslaughter statute, and the sentencing range is imprisonment at hard labor for not more than forty years. So, the range is zero to forty. This homicide— wrote some notes Rduring the weekend. Then, I’m going to read those, so that we can have something in the record about the considerations that I considered — the things that I considered when coming up with a sentence.
This is a homicide that involved three co-defendants and one victim. The co-defendants are Sherrod Wilson, who pled guilty to Manslaughter and Burglary, and received a fifty year sentence at hard labor. And, Corday Taylor, who was found guilty of Second Degree Murder after a bench trial, and was sentenced to life imprisonment.
The victim was a Jimmy Ray Thomas, who was twenty-nine years old at the time who is reputed in the information that I’ve received to be a drug dealer.
I’ve received information by — from the defendant and the state, and based upon the information, I make the following findings: On December 15, 2001, the defendant and the two co-defendants drove around Alexandria selling marijuana and Xanex bars and they were anticipating a shipment of twenty-five pounds of marijuana to come in from Texas. At about 4:30 a.m., they got a call about drugs arriving and went to the victim[’]s house. The victim, as I said earlier, was a Jimmy Ray Thomas.
Sherrod Wilson and the defendant were armed and entered the house to supposedly buy the twenty-five pounds of marijuana. However, Jimmy Ray Thomas, who is suppose[d] to be waiting on them to sell them the marijuana is in bed asleep. They turn on the lights and start hollering at him, at which time he pulls out a 40 caliber pistol from under the sheets. They then leave the house, as does the victim, at which time one of the defendants chase[d] the victim, then [shot] at him two times. After a while, the victim returns to the house, where he is ambushed by two co-defendants, who I believe to be Wilson and Bailey. And, they surprise him, and one of them shoots him on the ground, which causes a fracture to his femur, which causes him to start crawling on the ground. Then, with the 40 caliber, there’s then three pistols involved. There is three pistols and two co-defendants. There’s a forty-caliber, a nine millimeter, and a 38 pistol. And, those are shot into the victim seventeen times. The co-defense then leaves the scene, bundle up their clothes and the weapons and give [them] to the defendant’s brother to hold and then dispose of.
Now, I think the culpability — it’s interesting you have Sherrod Wilson there, he doesn’t take the clothing and the guns to his house or somewhere like that. The other person, Corday Taylor doesn’t take the clothes, but Craig Bailey is the person that gets the clothes and the weapons and take[s] them somewhere to hide them, which [shows], I think the level of involvement by this defendant who says that he was not involved in it is hiding the evidence, is not calling the police, is not trying to render aide to the defendant [sic], [last “[sic]” original to the transcript.]
| ¡After this victim was murdered, there is no mention of the twenty-five pounds of marijuana. Nobody went looking in the house for it. And, so it appears to me that their trip to the house was not for that purpose. Instead, by parking their vehicle down the street and entering the house at 4:30 while armed with pistols, it. appears they had a specific intent to kill or inflict great bodily harm at that time.
Based upon the information presented to me, I find the defendant was actively involved in the shooting of the victim, meaning that he was one of the gunm[e]n. And, even if not, he was a principle to the crime. He drove around with the co-defendants for four or five hours, prior to this being committed. They were actively involved with being on the telephone with people, selling drugs, and so, he is not someone that is innocently involved. He was just not someone who was along for the ride. He was someone that was actively involved in what was going on.
I have looked at Article 14:31 and the sentence I can impose is zero to forty years at hard labor. Whatever the sentence is, you will have to serve eighty-five percent of the sentence before being parole eligible, and the good time rate is three days for every seventeen days. The Court will designate this obviously as a crime of violence.
There’s a Simple Burglary in ‘02, a Simple Burglary, receiving stolen goods that are pending, an arrest for Simple Assault, Entry into an Inhabited Dwelling, Criminal Damage, in ‘02, that there’s been nothing on Unauthorized use of an Access Card in ‘02; a Simple Burglary in ‘02; an Armed Robbery in ‘02, and a Being a Convicted Felon in Possession of a Firearm, which was not billed, but the Armed Robbery is still pending. There are two Simple Batteries that are pending and a Second Degree Battery, which is also pending. I do not show any arrest[s] for misdemeanors or felonies though.
BY MR. WILLSON:
One misdemeanor conviction, 259,382, he plead guilty May 29th of ‘02, Theft under 300.
BY THE COURT:
All right. Mr. Bailey, I’ve also reviewed the sentencing guidelines under Article [894.1] of the Code of Criminal Procedure. And, I believe that during a suspended sentence or probation that you will commit another crime. I believe that you are in need of correctional treatment, that could be provided most effectively in an institution and that a lesser sentence would deprecate the seriousness of your crime.
I also find the following aggravating factors apply, that-is listed |fiunder the Article [894.1] Aggravating Factor Numbers] 1, 6, 10, 18, 19, and 20, I believe apply to your sentencing.[] I have reviewed the mitigation factors [that] apply in your behalf.
I believe that there was no excuse or justification for your conduct on f[sic] 12-15-01; the victim, in no way induced, or was at fault or encouraged his death in any[ ]way. This was not about a fist fight at a bar that happened earlier. This was not about a girlfriend or something like that. None of that. That’s what we usually see, it’s always about a fight that happened earlier in the day or about a girl. There’s none of that here. You go to his house at 4:30 when he’s asleep, and he’s shot, that’s what it’s about. And so, I looked at all those different factors to come up with a sentence. And, based upon those factors that I previously stated, I’m going to sentence you to serve 40 years at hard labor, with the Department of Corrections. You’re entitled to credit for all the time that you’ve served in this case. You have thirty days to file for reconsideration for the sentence, thirty days to file an appeal and .two years after the sentence becomes final, you have a right to file an application for post-conviction relief.
|7You need to see the sheriff and beg[i]n execution or your sentence. I am going to put into the record what I received from the defendant, it’s a sentencing memorandum with an attachment, and also State’s Sentencing Memorandum. This is the information that I considered in coming up with the 40 year sentence.

In his motion to reconsider sentence, Defendant alleged that he did not participate in the shooting and had no other felony convictions at the time of his sentencing. Defendant argued therefore, as someone who did not participate in the shooting and as the other guns belonged to his Co-defendants, he did not deserve the maximum sentence. Both in his motion to reconsider sentence and in his argument to this court, Defendant contends that the sentencing court erred in relying on the statements made by Wilson in finding that Defendant was a shooter in the case. Defendant suggests, instead, the district court should have relied on Defendant’s own self-serving statements and the statement of an eyewitness who averred that, áfter clearly seeing the shooters, none of the Co-defendants were involved in the incident.

At the sentencing hearing, the trial court interviewed the lead investigator in the case, Detective Bruce Fairbanks, regarding Defendant’s culpability. Detective Fairbanks testified that he thought that Defendant was one of the shooters. The district court later stated that it also based its findings on the sentencing memoranda presented by both Defendant and the prosecution. The State’s sentencing memorandum contains a discussion of statements given-by both Defendant and his Co-defendant Wilson. The statements given by Wilson identify Defendant both as the one with the idea to rob the victim and as the only shooter other than Wilson himself. Wilson’s statement excluded Taylor as a shooter by alleging that Taylor stayed in the vehicle in which the Co-defendants had been traveling.

Therefore, the trial court had a basis for finding Defendant to be one of the shooters in the instant offense. -Also, other than stating that Wilson was allowed to | sPlead guilty to manslaughter in exchange for testifying at trial, Defendant does not explain how Wilson received a greater benefit from identifying Defendant as a shooter instead of Taylor. Thus, we find that the sentencing court did not abuse its discretion in finding that Defendant actively participated in shooting the Victim.

Defendant also claims that the sentencing court failed to give proper weight to the mitigating circumstances in his case. In his motion to reconsider sentence, Defendant argued that the district court failed to give appropriate weight to the following mitigating circumstances as found in La.Code Crim. P. Art 894.1(B):

(23) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.
(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(26) The victim of the defendant’s criminal conduct induced or facilitated its commission.
(29) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(30) The defendant is particularly likely to respond affirmatively to probationary treatment.
(31) The imprisonment of the defendant would entail excessive hardship to himself and his dependents.

The mitigating circumstances that Defendant alleges apply to his case directly contradict the trial court’s findings. By determining Defendant participated in the homicide as a shooter, the district court held that Defendant contemplated his conduct would cause or threaten serious bodily harm. The sentencing court specifically found that there was no excuse or justification for Defendant’s conduct. The trial court further held that the Victim did not induce, facilitate, or encourage his own death. The district court also found that Defendant would commit another offense if allowed probation and/or a suspended sentence. The sentencing court ruled that Defendant |ais in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the crime. Moreover, other than a letter alleging that Defendant, along with other family members, cuts his grandparents’ grass, the record does not support a finding that Defendant actually has dependents upon which hardship would be inflicted. Thus, the trial court did not err in failing to find the designated mitigating factors.

Louisiana courts have previously affirmed the imposition of the maximum sentence for manslaughter when the defendant was originally charged with second degree murder but allowed to plead guilty to manslaughter instead:

Jurisprudence reflects that the maximum penalty for manslaughter has been imposed in similar circumstances. In State v. Williams, [03-1537 (La.App. 3 Cir. 6/9/04), 875 So.2d 1043, writ denied, 04-1951 (La.12/17/04), 888 So.2d 864,] the defendant was charged with second degree murder and pled guilty to manslaughter pursuant to a plea bargain. At the plea hearing, the State presented the following facts: The defendant and the victim, who were involved in an ongoing dispute, became involved in a confrontation. The defendant shot the victim with a twelve-gauge shotgun at point-blank range. The victim died and defendant was sentenced to forty years imprisonment at hard labor. The Third Circuit found no manifest abuse of sentencing discretion by the trial judge.
In State v. Lanieu, [98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962,] the defendant was charged with second degree murder and convicted of manslaughter. The defendant was sentenced to forty years at hard labor. In Lanieu, the defendant shot the victim in the head twice after an argument wherein the men cursed at each other in front of the defendant’s home. After the shooting, the defendant drove off in the victim’s car and dumped the victim’s body in a field. The defendant claimed that prior to the shooting he saw the victim reach down in the car and saw the handle of what appeared to be a gun; however, two witnesses provided that they did not see the victim with a gun on that day. At sentencing, the trial court noted that the defendant was a nineteen-year-old first felony offender with no adult criminal history. The PSI noted that the defendant had been arrested for attempted second degree murder, but that the grand jury pretermitted the case. The First Circuit concluded that the sentence imposed was not grossly disproportionate to the severity of the crime.
|inIn State v. Maxie, [594 So.2d 1072 (La.App. 3 Cir.), unit denied, 598 So.2d 372 (La.1992),] the defendant and the victim were acquaintances who lived in the same apartment complex. The two men had a series of confrontations. The victim and the defendant argued on two separate occasions before the fatal shooting. The victim was shot four times, with the first bullet shattering a bone in the victim’s leg and the three others entering the victim’s chest cavity. During the first argument, the victim threatened the defendant with a knife and then after the shooting, there was a knife found in the area of the victim’s body. Although a policeman testified that he found an opened knife, other witnesses provided they saw a closed knife near the victim’s body. Defendant was charged with second degree murder, but was found guilty of manslaughter and sentenced to the statutory maximum at the time, which was twenty-one years. The trial judge noted in written reasons for sentencing that the defendant was twenty-two years old with a steady employment history and had never been convicted of another crime. The Third Circuit determined this sentence was not excessive, noting that the defendant shot the victim four times over an alleged and unreported theft when the defendant could have avoided the final confrontation with the victim, but instead responded to the victim’s actions by arming himself with a rifle. The court also noted that although defendant knew the first bullet struck the victim, he continued to pull the trigger at least three more times.
In the instant case, Jones shot Sanx-ton at least four' times. Particularly, defendant shot the victim four times in ’ the face. Sergeant Thornton stated that he found seven spent casings and one projectile at the scene. Also, Gerry Jones testified that he heard six or seven gunshots. Although defendant argued that the victim tried to slash him twice with his knife prior to the shooting, the record reflects that the victim’s knife was found in the waistband of the victim’s pants, and it was stipulated that the first shot to the victim’s head killed the victim. Defendant’s second taped statement also revealed that he had had a previous altercation with Sanxton and had armed himself prior to this meeting because of that previous altercation. The number of times defendant shot the victim and the location of the injuries support the sentence imposed by. the trial court. After the shooting, defendant fled the scene and later fled the state. Also, defendant was charged with second degree murder and was convicted of the lesser charge of manslaughter. Although defendant’s prior criminal history is unclear from the record, jurisprudence supports imposing the maximum sentence for manslaughter, even for first felony offenders.
We affirm the defendant’s sentence, finding that it is not excessive.

Jones, 924 So.2d at 1118-19 (footnotes omitted).

In As in the cases discussed by Jones, Defendant had been charged -with second degree murder, which carries a mandatory life sentence. La.R.S. 14:30.1. Hence, Defendant received a significant sentencing benefit when the prosecution agreed to allow him to plead guilty to manslaughter instead. Notably, the other Defendant who pled guilty to manslaughter, Wilson, also received the maximum penalty, and the trial court found the Co-defendant who went to trial on the second degree murder charges, Taylor, guilty as charged and imposed the mandatory life sentence.

The facts found by the sentencing court reveal that Defendant and Wilson armed themselves with firearms before entering the sleeping Victim’s residence. They then chased the Victim away from the house, and when he returned, they shot the victim seventeen times. Therefore, based on the district court’s findings together with the significant sentencing benefit Defendant received by pleading to a lesser offense, we find that the trial court did not abuse its discretion in imposing the maximum sentence in the instant case.

Accordingly, this assignment of error is without merit.

CONCLUSION

The Defendant’s sentence is affirmed.

AFFIRMED.

      . In the Plea of Guilty and Waiver of Rights form signed by Defendant, Defendant initialed the following statement before signing the form: “In exchange for the sentence received, I understand this matter will be finalized and waive all rights to appeal my conviction and sentence, along with Motions to Reconsider Sentence, New Trial, Amend Sentence and Post-Conviction Relief.” At the guilty plea hearing, Defendant acknowledged that he understood the rights listed in his plea form and that he had signed the form.
      However, at sentencing, the district court inquired as to whether Defendant had waived his right to appeal based on the reduction in the charge. The prosecution responded that it did not know of any such waiver, and the Defense stated that no such waiver had been discussed. Thus, Defendant may have initialed the waiver by accident.

      . By citation reference, the sentencing court found that the following aggravating circumstances applied to Defendant’s case:
      (1) The offender's conduct during the commission of the offense manifested deliberate cruelty to the victim.

      (6) The offender used threats of or actual violence in the commission of the offense.

      (10) The offender used a dangerous weapon in the commission of the offense.

      (18)The offender foreseeably endangered human life by discharging a firearm during the commission of an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and which, by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.
      (19) The offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has, as an element, the use, attempted use, or threatened use of physical forces against the person or property of another, and which by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.
      (20) The offender used a firearm or other dangerous weapon while committing or attempting to commit a controlled dangerous substance offense.
      La.Code Crim.P. art. 894.1(B).

      . Taylor was the defendant who, arguably, had the least involvement in the offense.


author: PICKETT, Judge. SAUNDERS, J.,

text:
    EVERGREEN PRESBYTERIAN MINISTRIES v. Brenda WALLACE.
    No. 2007-313.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.
    Rehearing Denied Dec. 5, 2007.

      Charles V. Musso Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Plaintiff-Appellee, Evergreen Presbyterian Ministries.
    Thomas E. Townsley, Lake Charles, LA, for DefendanL-Appellant, Brenda Wallace.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

hThe claimant, Brenda Wallace, appeals a judgment of the Office of Workers’ Compensation (OWC) finding she was entitled to supplemental earnings benefits (SEB) rather than permanent and total disability (PTD) benefits or temporary and total disability (TTD) benefits, finding Mrs. Wallace lacked standing to contest the underpayments to her physician, and awarding certain penalties and attorney fees.

STATEMENT OF THE CASE

This case is before this court for a second time. Originally, the workers’ compensation judge (WCJ) found that Mrs. Wallace was entitled to SEB at a rate of $61.34 per week, which was a reduction from the previous TTD payments of $217.33 per week that she had been receiving since the injury. The WCJ severed the issues of penalties and attorney fees raised in the case and had not ruled on them when both parties appealed. We dismissed the first appeals filed by Evergreen Presbyterian Ministries (Evergreen) and Mrs. Wallace, finding that the WCJ had ruled on the disability issue but had failed to rule on the issues of penalties and attorney fees in the case. We found that such a piecemeal appeal was not proper and remanded the case for the WCJ to issue rulings on the remaining issues. Evergreen Presbyterian Ministries v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759.

This matter was heard on remand by the WCJ on November 2, 2006. The issues presented to the WCJ were: (1) whether the failure of Evergreen to pay for sympathetic therapy, or STS therapy, entitled Mrs. Wallace to penalties and attorney fees, (2) whether Evergreen was arbitrary and capricious in terminating Mrs. Wallace’s TTD benefits and reducing the benefits to SEB, entitling her to penalties and attorney fees, (3) whether Evergreen failed to pay Dr. Frank Lopez correctly |aaccording to the fee schedule, (4) whether Mrs. Wallace is entitled to penalties and attorney fees for the failure to pay Dr. Lopez according to the fee schedule, and (5) whether Dr. Lopez’s fee should be assessed as costs.

Evergreen objected to the inclusion of the issue of the payments to Dr. Lopez on remand, arguing that Dr. Lopez, not Mrs. Wallace, was the proper party to bring such an action, and that the issue was not included in any of Mrs. Wallace’s pretrial filings. The trial court sustained the objection and denied Mrs. Wallace’s claims regarding payment of Dr. Lopez’s bills. The WCJ found that the unilateral termination of TTD benefits by Evergreen was arbitrary and capricious and awarded $2,000.00 in penalties and $6,500.00 in attorney fees. The WCJ found the STS therapy was reasonable and necessary and ordered Evergreen to pay for it, but did not award penalties for the failure to approve the treatment. The WCJ assessed Dr. Lopez’s $2,500.00 fee as costs. A judgment in conformity with the WCJ’s oral reasons was signed on November 17, 2006. Evergreen filed a Motion for Sus-pensive Appeal, but that appeal has been abandoned. Mrs. Wallace has devolutively appealed from the judgment of the WCJ.

ASSIGNMENTS OF ERROR

The appellant, Brenda Wallace, asserts three assignments of error:

1. The court erred in finding that the defendant was entitled to supplement [sic] earning benefits at zero earnings rather than finding Brenda Wallace temporarily totally disabled (TTD) or totally and permanently disabile [sic], and, therefore, is entitled to TTD benefits or totally and permanently disabled (TPD) under the odd-lot doctrine.
2. The court erred in reversing her ruling on an objection, in an effort to avoid ruling on the substance of the matter, and not making a finding that the defendant improperly made payments of medical bills under the fee schedule of Dr. Frank Lopez’s bills.
|a3. The court committed clear legal error in only awarding $2,000.00 in penalties and $6,500.00 in attorney fees for the defendant’s “sham rehab” proven at trial and the improper unilateral reduction of defendant’s wages from $217.33 per week to $61.34 per week. The rehabilita-tionist, Karen Herron, admitted that she did not notify defendant of Dr. Gerald Nickerson’s approval of one of the jobs she submitted nor did she check to see if the job was available following the approval by the doctor, as required under the law, thus, giving rise to penalties and attorney fees. The undersigned counsel put in an enormous amount of time, effort, skill and clearly demonstrated egregious conduct; yet, the trial court awarded a minimal amount given two trials and one appeal to achieve the judgment.

DISCUSSION

In her first assignment of error, Mrs. Wallace argues that the symptoms of her condition are such that any employment she may be able to find would aggravate her condition and make her job performance inconsistent. This issue was litigated at the first trial. She suggests that the WCJ should have applied the odd-lot doctrine to find that she is incapable of working and therefore entitled to TTD or PTD benefits.

The evidence supports the WCJ’s findings that Mrs. Wallace is capable of employment and therefore entitled to SEB and not total disability benefits. Dr. Lopez, her own treating physician, testified she was capable of some type of employment, though she may have to work in pain. Further, a functional capacity evaluation performed by New Day Rehabilitation found that she is capable of gainful employment with occasional sedentary lifting. We find no manifest error in the trial court’s determination. This assignment of error lacks merit.

In the second assignment of error, Mrs. Wallace argues that Evergreen should be required to pay penalties and attorney fees for failing to pay for Mrs. Wallace’s treatment with Dr. Lopez according to the fee schedule published by the OWC. In the original trial, Mrs. Wallace submitted explanations of benefits from F.A. Richard |4and Associates (FARA), Evergreen’s insurer, indicating network credits which Dr. Lopez testified were not applicable. Dr. Lopez testified that he had not billed Mrs. Wallace for any of the treatments. At the hearing following our remand to the OWC, the WCJ determined that the issue was not properly pled in pre-trial filings and that Dr. Lopez, not Mrs. Wallace, was the proper party to bring an action against Evergreen or FARA.

Louisiana Revised Statutes 23:1034.2 instructs the OWC to establish a reimbursement schedule for the payment of medical benefits due in workers’ compensation cases. Section F of the statute states:

(1) Should a dispute arise between a health care provider and the employee, employer, or workers’ compensation insurer, either party may submit the dispute to the office in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.
(2) In addition to any other occasion when consolidation of claims is otherwise allowed by applicable law, whenever multiple disputes exist between a single health care provider and a single “pay- or” as defined in R.S. 23:1142(A) concerning the proper amount payable pursuant to the reimbursement schedule, then either the health care provider or the payor shall have the right to have all such disputes between the payor and the health care provider consolidated and tried together. The venue for such consolidated claims shall be in either the workers’ compensation district of the parish in which the domicile of the provider is located or the workers’ compensation district of the parish in which the domicile of the payor or employer is located. '

“Payor” is defined as the “entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.” La.R.S. 23:1142.

Evergreen argues that section F entitles the health care provider to bring an action against FARA or Evergreen, not Mrs. Wallace. Mrs. Wallace has not been denied treatment because of these network credits (which on most of the bills was U6.80), and Dr. Lopez has not required her to pay the difference between the fee schedule and the amount he was paid. Furthermore, the reimbursement schedule was not entered into evidence, so it is impossible to tell what Dr. Lopez should have been paid. As the workers’ compensation statute specifically provides a cause of action for Dr. Lopez to prove he was not paid according to the reimbursement schedule, we find he is the proper party to bring this action, not Mrs. Wallace. This assignment of error lacks merit.

In the third assignment of error, Mrs. Wallace argues she is entitled to penalties and attorney fees for the “sham rehab” provided by Karen Herron, and an increase in penalties and attorney fees for Evergreen’s unilateral reduction of benefits.

The only time penalties and attorney fees have been awarded relative to rehabilitation is for discontinuation of rehabilitation, not for providing sham rehabilitation. See Haynes v. Williams Fence and Aluminum, 02-442 (La.4/21/03), 851 So.2d 917. Mrs. Wallace has not cited a case which awards penalties and attorney fees for sham rehabilitation. Thus, we find that penalties and attorney fees are not available.

Finally, Mrs. Wallace seeks an increase in the amount of penalties and attorney fees awarded by the WCJ for Evergreen’s improper reduction of benefits. The WCJ, in her judgment, found that Evergreen was arbitrary and capricious in unilaterally reducing benefits. Thus, penalties were awarded pursuant to La.R.S. 23:1201(1), which allows penalties up to $8,000.00 and attorney fees. The amount award by the WCJ will not be disturbed unless we find that the WCJ abused her discretion. George v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir. 7/19/95), 663 So.2d 79, writ denied, 96-0039 (La.3/8/96), 669 So.2d 403. We do not find an abuse of | ^discretion in the awards of penalties and attorney fees, and will not disturb the finding of the WCJ.

CONCLUSION

The judgment of the WCJ is affirmed in all respects. Costs of this appeal are assessed against Mrs. Wallace.

AFFIRMED.

SAUNDERS, J., dissents in part and assigns written reasons.

SAUNDERS, J.,

dissents in part and assigns written reasons.

|TI am unable to agree with the conclusion reached by the majority as to the second assignment of error charged by the appellant, Ms. Brenda Wallace, and so I must respectfully dissent.

DISCUSSION:

The majority reasons that La.R.S. 23:1034.2 authorizes a health care provider, and only a health care provider, to bring an action for attorney fees and penalties against an employer or workers’ compensation insurer in connection with the non-payment of bills owed for treatment rendered, yet there is nothing in the language of the statute to suggest that the legislature intended such a reading. On the contrary, La.R.S. 23:1034.2 frames the resolution of disputes involving health care providers permissively: “Should a dispute arise between a health care provider and the employee, employer, or workers’ compensation insurer, either party may submit the dispute to the office in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.” La.R.S. 23:1034.2(F)(1) (emphasis added). Rather than precluding an injured employee from bringing an action regarding a dispute involving the non-payment of his or her health care provider by his employer or workers’ compensation insurer, |aLa.R.S. 23:1034.2(F)(1) merely includes such a health care provider in the list of claimants with access to workers’ compensation dispute resolution procedures.

Similarly, neither does La.R.S. 23:1034.2(F)(2) have the preclusive effect that the majority interprets it to have. That statute states:

In addition to any other occasion when consolidation of claims is otherwise allowed by applicable law, whenever multiple disputes exist between a single health care provider and a single “pay- or” ... then either the health care provider or the payor shall have the right to have all such disputes between the pay- or and the health care provider consolidated and tried together.

La.R.S. 23:1034.2(F)(2). As it relates to that statute, “payor” is defined as the “entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.” La.R.S. 23:1142.

While the majority is correct in concluding that Mrs. Wallace, as an injured employee, fails to fit the definition of “payor,” it is unclear how such a failure precludes her from asserting the action at issue here. La.R.S. 23:1034.2(F)(2) applies to cases involving multiple disputes between a health care provider, here Dr. Lopez, and a “pay- or,” here Evergreen or FARA, yet the instant case does not involve the propriety or impropriety of a consolidation of multiple disputes. There is but one dispute at issue here — namely, the non-payment of bills owed to Dr. Lopez. Whether or not Mrs. Wallace meets the definition of “pay- or” is of no moment to the resolution of the instant case. Furthermore, like La. R.S. 23:1034.2(F)(1), La.R.S. 23:1034.2(F)(2) frames its provisions permissively, rather than preclusively: “[E]i-ther the health care provider or the payor shall have the right-” (emphasis added). In effect, La.R.S. 23:1034.2(F)(2) is little more than a statute allowing health care providers and “payors” to consolidate, in the name of judicial efficiency, whatever disputes may exist between them into a single suit.

laWhat the majority’s opinion fails to address is that none of the statutes referenced in the opinion actually controls the question presented by this assignment of error. On the contrary, suits for attorney fees and penalties in connection with nonpayment are governed by La.R.S. 23:1201: “Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty ... together with reasonable attorney fees for each disputed claim.” La.R.S. 23:1201(F). That statute further reads:

(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for the payment of his fee, penalties as provided in this Section and reasonable attorney fees ... may be awarded and paid directly to the health care provider.

La.R.S. 23:1201(F)(3-4).

Here, the majority finds that applicable law precludes any party but for the health care provider from bringing suit for attorney fees and penalties in conjunction with the non-payment of bills owed, yet the language of La.R.S. 23:1201(F) contemplates scenarios in which either the injured employee or the health care provider, is owed such remuneration for non-payment. In so framing the statutory language, I find that the legislature must have intended for both health care providers and injured employees to have standing to bring suit against employers or workers’ compensation insurers for their failure to pay bills owed to health care providers. A similar conclusion was reached by this court in Ferrier v. Jordache-Ditto’s, 94-1317, 94-1318 (La.App. 3 Cir. 5/17/95), 662 So.2d 14. There, in deciding whether or not health care providers were entitled under then-applicable law to bring suit for penalties and attorney fees for the nonpayment of bills owed, we concluded:

LFrom the language of [La.R.S. ■ 23:1201.2], it is clear that its thrust is to provide that the worker’s claim for compensation benefits will be promptly paid. In that regard, it also is clear that the statute does not explicitly provide for the award of attorney’s fees to a party other than the worker’s compensation claimant. To read the statute to provide such fees for the health care provider would require us to extend attorney’s fees to the health care provider by implication.

Id. at 20 (emphasis added). As a consequence of the statutory changes embodied by La.R.S. 23:1201(F), it is clear that our earlier holding as to health care providers no longer holds jurisprudential water, yet — as to injured employees — our holding in Ferrier remains as correct today as it was when first delivered: a workers’ compensation claimant, like Mrs. Wallace, is entitled to bring suit for penalties and attorney fees as a consequence of the nonpayment of medical bills to her health care provider.

Moreover, if the majority’s emphasis on La.R.S. 23:1034.2(F)(2) affords any persuasive insight into the issue here presented, it is by highlighting the legislature’s concern with judicial efficiency in dealing with cases involving workers’ compensation disputes. The majority suggests that the law entitles a health care provider to bring suit for penalties and attorney fees stemming from non-payment for services rendered, yet at the same time does not entitle the very patient to whom such care was provided to bring suit for the selfsame instance of non-payment. Such a suggestion implies that the conduct which La.R.S. 23:1201(F) seeks to punish is only punishable if challenged by two separate actions, an implication which runs directly contrary to the judicial efficiency promoted by La. R.S. 23:1034.2(F)(2). In light of the overwhelming evidence to the contrary, I cannot, in good conscience, project intentions such as these upon the legislature.

| .CONCLUSION:

For the reasons discussed above, I must respectfully dissent as to the majority’s holding regarding the second assignment of error. In all other respects I agree with the majority opinion.